Football TV show producer has action for lost profits from cancellation of show dismissed by Glasgow sheriff

About this case:

• Citation:
  [2023] SC GLA 2
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff S Reid Esq

PLZ Soccer Ltd, which produced 19 episodes of a programme titled “Peter and Roughie’s Friday Football Show” for defender STV Glasgow Ltd, argued that the broadcaster was in breach of an implied term in their contract by intimating halfway through the planned 38-episode run that it would not broadcast any further episodes.

The case was heard by Sheriff Stuart Reid. R McIlvride KC appeared for the pursuer and G Walker KC for the defender.

Services agreement

In 2018, the parties entered into a contract for 19 hours of programming comprising a minimum of 38 studio recordings, covering 38 fixture rounds of the Scottish Premiership and Scottish Championship from the 2017/18 and 2018/19 football seasons, in exchange for a fee of £190,000 to be delivered in time-tabled instalments. The pursuer duly delivered 19 episodes of the programme broadcast between 26 January 2018 and 25 May 2018.

On 1 August 2018, the defender allegedly told the pursuer that it had decided to cancel the programme. It was averred that this decision was made because STV was unable to obtain a renewal of the necessary licensing rights to broadcast the relevant match footage from the Scottish Professional Football League. The pursuer claimed that by “unilaterally cancelling” the programme, the defender was in breach of an implied obligation to broadcast their footage.

The pursuer sought a payment of £135,379 from the defender, being the alleged net remuneration it would have earned under the contract but for the defender’s alleged breach. An additional sum of £1,086,382 was sought on the basis that this was the profit the pursuer would have had a chance to earn but for the defender’s breach, arising from a separate contract it was likely to have concluded with another broadcaster to produce a separate but similar programme for broadcast from January to December 2019.

It was averred by the defender that the action ought to be dismissed without a proof, as no contractual term of the kind averred by the pursuer fell to be implied into the contract. There was no necessity of the term contended for because the contract operated in an adequate manner without it and such a term would be inconsistent with the express terms of the contract. On a proper interpretation, the contract was nothing more than a services agreement, with the pursuer’s arguments relating to its own commercial objectives which were not shared by the defender.

Hard pressed to find obligations

In his decision on the defender’s preliminary motion, Sheriff Reid said of the purpose of the contract: “The proposition that the parties wanted, planned, indeed intended, to broadcast the footage is very obviously correct from the face of the Contract itself. But that is not the issue. The question is whether, as a matter of obviousness or of necessity for business efficacy, STV is to be taken to have accepted an obligation to broadcast the footage. The fact that, indubitably, the parties were working towards the transmission of the footage does not answer the proper question; it begs it.”

He continued: “Looking at the Contract as a whole, it is, in essence, an agreement whereby the pursuer undertook to provide certain services to STV, and STV undertook to pay the agreed price for those services. It is not much more complicated than that [and] one is hard pressed to find any obligation incumbent on STV, other than to pay the agreed ‘fee’ (and that obligation is expressly conditional upon the due performance by the pursuer of its multiple obligations under the Contract).”

On whether it was commercially sensible to imply a term into the contract, Sheriff Reid added: “While it is undoubtedly correct that both parties envisaged that the Friday Show would be broadcast, it cannot be said, on an objective assessment, that transmission of the footage is necessary to give the Contract business efficacy (that is, practical or commercial coherence). PLZ might well be disappointed that the fruits of its labour are not ultimately broadcast to the nation; STV might be equally disappointed; but the Contract ‘works’ perfectly well as a mechanism by which STV acquires a finished product that is capable of being broadcast, should it choose to do so.”

He concluded: “The implication of the term contended for by PLZ is neither necessary to give the Contract business efficacy, nor is it obvious, nor is it capable of clear expression. Besides, the implication of the supposed term would be inconsistent with the express terms of the Contract. For these reasons, the pursuer’s pleadings anent the implied term, on which the entire action is founded, are irrelevant. Accordingly, the action falls to be dismissed.”

In a postscript addressing quantum, Sheriff Reid noted that the pursuer’s second crave for £1,086,382 would have been excluded from probation had the action not been dismissed due to lack of specification.