Global Sports Data and Technology Group Limited v IPS Law LLP

Senior Costs Judge Rowley: Introduction

1. This is my reserved judgment in respect of preliminary points of dispute 1 to 4 ordered to be heard by the then Senior Costs Judge Gordon-Saker on the first open date after 26 July 2024. Witnesses for both parties were cross-examined over five days in November 2024 and a day of submissions by Andrew Hogan of counsel for the claimant and Robin Dunne of counsel for the defendant took place in January 2025.

2. Both parties’ counsel formulated the questions for the court to decide in their closing submissions since, as is sometimes the case, there is some difficulty in distilling the points of dispute in this fashion. Moreover, in this case, it became clear that the need to address Point 1 of the points of dispute (concerning the formatting of the bill) depended upon the court’s decision in respect of points 2 and 3 (regarding the existence of a retainer).

3. There was also some dispute about the relevance of point 4 to the fundamental issues that I have to decide. I limited the evidence sought to be introduced by the claimant regarding point 4 in an application at the beginning of the hearing. The gap between the evidence being given and closing submissions was not ideal and, as I indicated to the parties at the end of the evidential hearing, I made a start on drafting this judgment whilst the evidence was fresh in my mind. I then produced the great majority of this judgment in March but unfortunately was unable to complete it until now. The Central Issue

4. Mr Hogan described the key issue as being: “Is there an express or implied obligation on the part of the claimant to pay the defendant the fees and disbursements sought in Invoice Number IPS 17759 and Invoice Number IPS 17762?”

5. Mr Dunne described it as a two part question in this way: “(1) Did the claimant engage the defendant’s solicitors? If so, then (2) as there is a presumption the claimant is liable to pay reasonable fees, can the claimant rebut that presumption by showing clear evidence of a binding agreement that the claimant was never liable to pay the defendants fees under any circumstances?”

6. Although Mr Dunne described the second part of his test as being the central issue between the parties, that was not my impression based on either the written closing submissions from the parties or the advocates’ oral submissions. There is no evidence of the sort described in the second part of Mr Dunne’s formulation. Therefore, if the defendant was instructed by the claimant to act as its solicitors, there is an obligation to pay reasonable fees in the manner set out in Mr Dunne’s question. As this is so plain, I have not felt it necessary to set out the Adams v London Improved Motor Coach Builders [1921] KB 495 line of authority cited by counsel.

7. In my view, Mr Hogan’s formulation encompasses the dispute between the parties. The claimant says that it has no obligation, whether express or implied, to pay any fees to the defendant because it did not instruct it to act as its solicitor. The claimant says that, instead, it joined with the defendant, amongst others, in a commercial venture to pursue claims on behalf of sportsmen in respect of alleged data breaches.

8. It is a striking feature of this case that, although everyone says the nature of the relationship was made clear at the outset, no one committed anything to writing at that time. Consequently, both parties have had to produce witness statements and give oral evidence as well as provide such documents as were created and then seek to show that they support their version of events. The evidence

9. The evidence on behalf of the claimant was given by its two founders, Jason Dunlop and Russell Slade. The evidence on behalf of the defendant was primarily given by Christopher Farnell, the senior partner of the defendant, along with brief evidence from Elaine Lawler and Fred Rose, who were employed by the defendant at the relevant time, together with Ronald Higgins, a potential investor in “Project Red Card”, which was the venture at the centre of the relationship between the claimant and the defendant.

10. Given that the best part of five days of court time was spent in the witnesses giving evidence, it might be thought that a lengthy recitation of the evidence they provided would be necessary. However, that is not my view, having heard the witnesses giving evidence. Mr Dunlop, Mr Farnell and, to some extent, Mr Slade were the key witnesses. Although their evidence was diametrically opposed on the nature of their relationship, I formed the view that all of the witnesses were seeking to assist the court in the evidence that they gave and that they firmly believed what they said to be true. It would be fair to say that their evidence was unshakeable on the central issue that I have to decide. It would also be fair to say that there was not a lot of evidence in respect of that central issue and most of the cross examination related to other matters which were, at the highest, seeking to question the credibility of the evidence given by those witnesses.

11. The Practice Direction to Part 67, which governs proceedings brought under the Solicitors Act 1974 seeks to avoid parties providing witness evidence before the initial directions hearing. But Part 67, and its Practice Direction is not particularly well known, and this evidential variation on the usual requirement to file and serve evidence in Part 8 claims is regularly overlooked. In this case, Mr Farnell provided a witness statement prior to the directions hearing setting out his position in detail. Consequently, when the Senior Costs Judge came to give directions regarding the preliminary issues hearing, he took Mr Farnell’s first witness statement into account. The parties were to file and serve witness statements from anybody other than Mr Farnell who the parties wish to give evidence by 28 June 2024 and then the parties were entitled to serve witness statements in reply by Mr Dunlop and Mr Farnell by 26 July.

12. The witness statement provided by Mr Slade in accordance with these directions simply adopted the evidence of Mr Dunlop. However, following receipt of Mr Farnell’s second witness statement, the claimant sought to rely upon a second witness statement of Mr Slade which was a substantial document. I allowed it to be used at the hearing despite the defendant’s objections.

13. It transpired during the cross-examination of Mr Slade on his witness statement, that Mr Slade was probably not the best person to give at least a proportion of the evidence included in that statement. There were also a number of occasions during which Mr Slade gave evidence at which he reiterated the point that his strength in the company was his relationship with footballers and other sports people so that he could drum up business from potential clients. The business of running the company, including relationships with the other entities, was Mr Dunlop’s domain. Consequently, it seems to me that Mr Slade’s evidence added little to that given by Mr Dunlop and the initial approach taken by the claimant of Mr Slade simply adopting Mr Dunlop’s evidence, without taking matters further, very largely reflected the evidential position. The evidence of Jason Anthony Dunlop in his witness statements

14. In his first witness statement, Mr Dunlop set out his evidence in respect of “the basis of the parties’ relationship” at paragraph 4 onwards in the following terms: “4. Global is a data rights company. Amongst other interests, we have an ongoing large-scale project, known as Project Red Card. Project Red Card, which I shall refer to as PRC, was a commercial joint venture between the Defendant and Global. I will summarise the history and basis of that commercial joint venture as follows.

5. PRC concerns potential large scale, group litigation, concerning breaches of data protection laws and GDPR, regarding the personal data of professional athletes. The breaches, I believe, the purpose of PRC, have been committed and are ongoing, by various gaming or betting entities.

6. Russell Slade and I were introduced to Chris Farnell, the Principal Sole Practitioner of the Defendant, through one of our business consultants. That consultant had worked with Mr Farnell on a previous matter. We had an initial Zoom call with Mr Farnell on 19 March 2021 at 11:30am. We had a further Zoom call with Mister Farnell on 24 March 2021, at 10am. Accompanying us were Richard Dutton and Dean Armstrong KC, who were part of Global’s advisory team.

7. As a result of discussions and Mr Farnell, it was agreed that he would find litigation funding with the aim of raising £20 million. The agreement between Global and Mr Farnell was based on the premise that Russell had extensive contacts in sport and professional football, I have expertise in sports data governance; and Mr Farnell held out to us that he had contacts in sport finance. In return for his role in PRC, it was agreed that Mr Farnell and his firm would enter into either conditional fee agreements (CFA) or damage[s] based agreements (DBA) with the individual athletes or players, who would bring individual claims against entities who had breached and misused their personal data.

8. It was agreed with Mr Farnell that the Defendant would become the lead solicitors of the individual athlete and player PRC claims. It was also agreed that Dean Armstrong KC would act as the lead Counsel. It was agreed that Global would provide data rights consultancy and would source the players and athletes to make the data breach claims.

9. The agreement with Mr Farnell was that the parties were entering into a joint commercial venture at the respective risk of each party. It was made clear from our first meeting that the model was to be 10% to the funders, 10% to Mr Farnell and his law firm, and 10% to Global; paid for from the damages under the terms of the CFA or DBA between the Defendant and each individual player or athlete. Once the PRC Claimant book was established, it was planned that the Defendant would enter retainers with the individual players. This model was reinforced during discussions in email exchanges several times. In particular, there were further discussions and meetings on 26 May 2021 and 13 June 2021. Mr Farnell and his firm would never have been considered for PRC if they wish to charge legal fees to Global, at Global’s risk.”

15. In the remainder of his first witness statement, and in his second witness statement in its entirety, there are comments as to why the defendant’s version of events could not be right and the shortcomings in the defendant’s evidence et cetera. There is no other positive evidence directly concerning the nature of the relationship between the claimant and the defendant. The evidence of Christopher William Farnell in his witness statements

16. In his first witness statement, Mr Farnell makes the following statements: “3. IPS Law has, for a period of close to four years, between January 2021 until the present date been retained by Global Sports Data and Technology Ltd (GSDT) and in particular Mr Jason Dunlop and Mr Russell Slade. At the outset of the relationship both Mr Jason Dunlop and Mr Russell Slade indicated that they wish[ed] to work with and instruct IPS Law in advising them on the matter named Project Red Card which relates to the misuse of athlete’s personal data. …

6. As a result of my help and assistance in relation to the position with the previous Queens Counsel (now Kings Counsel) Dean Armstrong, both Mr Jason Dunlop and Mr Russell Slade, agreed that they wish[ed] to work with IPS going further forward. Jason Dunlop reiterated to me as did Russell Slade, that they had been unhappy working with Freeths due to the fact that they were looking to seek to charge significant amounts of funds on the matter and it would have an impact on any damages that would be likely to receive [sic] and to that extent Jason Dunlop and Russell Slade both confirm[ed] that they had for a period of time felt that Dean Armstrong (KC) and Richard Dutton who they also informed me in fact worked with Dean Armstrong (KC) on a number of matters outside of chambers, were also seeking to charge Global Sports Data and Technology Ltd (GSDT) sums of monies that were in effect not what Mr Jason Dunlop and Mr Russell Slade would want to agree to.

7. Russell Slade added that he felt that they (GSDT) wanted help and support from the players perspective, from a lawyer that understood the position as far as the players were concerned and that was willing to work with GSDT without seeking to take the emphasis away from GSDT.

8. It was on this understanding that GSDT engaged then with IPS Law and started informing the wider community of footballers, football agents, various media both written and audio, that IPS Law had been instructed by GSTD (sic). It was on this basis that IPS Law then started entering into correspondence requesting files of papers from Freeths and also acting on behalf of GSDT in the discussions with Dean Armstrong and Richard Dutton.

9. Not only were IPS engaged by GSDT to advise on project Red Card on a number of different legal areas including but not limited to the litigation of the misuse of athletes’ data, IPS also took action in relation to the sending of Pre-Action-Letters, upon full and expressed instructions of Mr Jason Dunlop and Mr Russell Slade, intermating [sic] action under CPR 19.6 (now CPR 19.8).

10. In relation to Project Red Card then IPS not only advised on the structure of Project Red Card, but also on reviewing contracts and various discussions with advisers to and users of player data. This included but is not limited to Genius Sports. Letters before action were sent out upon the direct instruction of Mr Jason Dunlop, advice was given on the merits of individual sports and the use of players data, engaging in all correspondence with instructed barristers, legal practices acting on behalf of betting companies, attended meetings with third parties including meetings at the Oval in relation to professional cricketers with the Professional Cricketers Association whereupon both Mr Jason Dunlop and Mr Russell Slade introduced IPS Law as solicitors acting on behalf of GSDT and also included IPS Laws remuneration in budget forecasts which had been sent to a number of potential third party investors (Exhibit CWF 1).

11. As the relationship grew between Mr Jason Dunlop, Mr Russell Slade and myself, I was asked to raise investment funds (Litigation Funding) from people that I knew personally in the industry.”

17. In his second witness statement, and having had sight of Mr Dunlop’s first witness statement, Mr Farnell said: “5. At my first meeting with Mr Jason Dunlop I had explained to him that IPS Law is a small, boutique law firm, and as such we are unable to take on a considerable amount of multi disciplined work or in fact any work without being paid. This was acknowledged by both Mr Jason Dunlop and Mr Russell Slade. I did explain to both Mr Jason Dunlop and Mr Russell Slade that we can only provide legal services if we were paid. It would not be possible for a small boutique and specialist sports law firm to take any considerable capacity away from IPS Law without financial payment. Both Mr Jason Dunlop and Mr Russell Slade agreed with this. I asked both Mr Jason Dunlop and Mr Russell Slade for confirmation from them that IPS Law were the lawyers appointed in relation to GSDT and they confirmed that to be something that they were happy to agree to. I also explained that it would not be possible for me to give a precise estimate of those legal fees as it was unclear, at that time what the extent of the tasks that would need to be included in relation to what they wish to achieve, which was to issue proceedings in relation to footballers that they claimed to represent for the misuse of those footballers’ data.

6. I made sure to repeat to Mr Jason Dunlop and Mr Russell Slade that IPS Law being a specialist boutique sports legal practice would only work on the condition that IPS Law would be paid for its services and that GSDT would be billed in relation to those services. This was agreed by both Mr Jason Dunlop and Mr Russell Slade at one of the meetings that we had in Dean Armstrong KC Chambers in London. I can recall Mr Jason Dunlop’s words exactly. He informed me that “no one expects you to do work for nothing.” I took great comfort in those words. …

15. The contractual relationship between IPS and GSDT is not wholly contained within the retainer but further supplemented by the Terms of Business which was sent to Mr Jason Dunlop of GSDT. Those terms of business apply to all services provided by IPS Law to its clients. There has never been any agreement to exclude the terms of business and in any event to suggest that the total exclusion of Terms of Business would potentially represent a breach of regulatory requirements. As such I believe the terms of business applies (sic) to the invoices that have been rendered to GSDT in relation to the contractual interests and unpaid invoices.”

18. As with Mr Dunlop’s evidence, a good deal of it relates to disputing the veracity of other witnesses’ evidence as well as dealing with other matters. The parties’ oral evidence

19. I have set out the relevant evidence regarding the nature of the relationship in the witness statements of Mr Dunlop and Mr Farnell. As I indicated at the outset, I think they were both trying to assist the court but fundamentally were simply convinced of their own positions. Given the gulf between the parties as to the nature of the relationship, one of them has to be wrong.

20. Whilst Mr Slade’s evidence was limited, for the reasons I have previously set out, there was no inconsistency in my view, between the evidence that he gave with that of Mr Dunlop. Consequently, it supported the overarching position that the various entities in Project Red Card were acting as a form of partnership with a view to making a profit overall.

21. On behalf of the defendant, neither Ms Lawler nor Mr Rose seemed to me to be able to give any meaningful evidence. That is not to say that they were seeking to be unhelpful, but it was clear that they had no recollection of the specific issues involved and as such they were of little, if any, support to Mr Farnell’s own evidence.

22. Mr Higgins was not in the witness box for very long. It seemed to me that of all the witnesses, he was the only one who had an axe to grind. His company had wanted to buy a majority stake in Project Red Card at one point but that had not come to fruition and the claimant had begun talking to Safe Harbour instead. Some of the evidence contained in Mr Higgins’ witness statement was plainly second-hand (e.g. “I have now been made aware by my conversations with Mr Farnell that Mr Nick De Marco [counsel] has confirmed that he was instructed by IPS on behalf of IPS client GSDT.”) There were also similarly second-hand and rather scurrilous accusations regarding the claimant’s business practices. Mr Higgins repeated some of these in the witness box and clearly felt the need to ventilate such matters, regardless of whether they related to the question posed or not. I did not consider myself to be assisted by Mr Higgins’ evidence.

23. Both Mr Dunlop and Mr Farnell appeared to me to be unperturbed by Mr Dunne and Mr Hogan’s respective cross examination on the central issue. Given the unshakeable nature of their evidence and the limited nature of the support to be given to them by the other witnesses, I now turn to various elements of the evidence and documentation on surrounding matters which was said to support the parties’ arguments. The agreement with Freeths

24. Prior to the defendant’s involvement in Project Red Card, a different law firm, namely Freeths, had been involved and they had data which needed to be transferred to the defendant. In an email dated 8 July 2021, James Hartley of Freeths wrote to Mr Farnell about that transfer. He then went on to say: “Jason and I discussed a financial/commercial arrangement whereby Freeths would enter into an agreement that would provide for a proportion of our WIP incurred to date to be paid in the event of successful recovery in Project Red Card, to reflect the fact that we Freeths incurred very considerable time costs in, for example, making the numerous FOI requests and corresponding with the various firms of solicitors that were instructed by the recipients of the FOIA requests. Perhaps all of the above matters (including some form of authority enabling us to transfer the data) could be dealt with in one short agreement; in which case perhaps you could produce a draft for discussion?”

25. This is one example of surrounding documentation which was interpreted in different ways by the parties. Mr Dunne submitted that it was clear that Freeths were being paid for work done on behalf of GSDT and this tied in with the defendant’s case that the lawyers involved with GSDT were paid for the work they had carried out. When cross-examining Mr Dunlop, Mr Dunne was incredulous with Mr Dunlop’s evidence that GSDT would simply agree to pay the sum of £50,000 to Freeths as a “goodwill gesture” in the manner described by Mr Dunlop.

26. I do not accept Mr Dunne’s incredulity. Given the sums involved potentially in this scheme, a payment of £50,000 would not have been significant since it would only have been paid once the scheme had proved its worth. In those circumstances, a goodwill gesture to a firm who might be useful in a further venture, for example, would be no more than the cost of doing business.

27. It seemed to me to be clear, however, that the terms of this email demonstrated two things. First, that Freeths had written letters to third parties regarding FOIA requests in respect of Project Red Card and secondly that there was no agreement for Freeths to be paid because the proposed agreement referred to in the email resulted from a recent telephone call between Mr Dunlop and Mr Hartley and which proposed a potential payment in the event that successful claims had been made. In my view, this supported the claimant’s version of events whereby the law firm would be writing to third parties as part of the project rather than as being instructed by GSDT as a client. Outside Investors

28. A second category of documents which were said by each party to support their case related to agreements by outside investors to inject money into the project. These were described by the claimants as being “working capital” and by the defendants as being “litigation funding”. There is some considerable dispute regarding the sizeable sums involved and there is the distinct prospect of further litigation occurring elsewhere. Since, for the reasons I am about to give, I do not think the agreements assist me in determining the nature of the relationship between the claimant and the defendant, I do not intend to set them out in any detail.

29. Suffice to say that there is an agreement with a third party called Mimi and Marble investments Ltd which provided for an investment of £600,000 and described, in the recitals to the agreement, as being for the purposes of working capital. In return for that investment, the claimant provided shares in the company and a multiple of the investment sum upon settlement of the claims.

30. There is also a term sheet with Safe Harbour Equity LLC regarding the provision of funding of £2 million to litigate what is described as a Class Action through to trial. In return for that funding, Safe Harbour were to receive shares in the claimant together with the return of the funding amount +10% of all amounts recovered in the event of the class action being successful.

31. Mr Dunne quizzed Mr Slade as to the difference between the agreement said to involve working capital and the one said to involve litigation funding given that the second witness statement of Mr Slade suggested there was a clear difference between the two. It was no great surprise that Mr Slade struggled with this task given that the investors in both cases received shares and a return on their investment in the event of success.

32. Since the agreements could be described as either a litigation funding agreement or a working capital agreement I do not think that they support either side’s arguments in any decisive way. In my experience, litigation funding agreements generally sought a percentage of the damages until the Supreme Court’s decision in PACCAR, and now a multiple of the investment is preferred. But I note the recent consultation on litigation funding agreements by the Civil Justice Council refers to funding models varying considerably and I do not think that either label adopted by the parties would be impossible to accept. Presentation material

33. There is no dispute that the claimant sought investment in its company so as to “build its book” of potential claimants. In order to facilitate the pursuit of that investment, PowerPoint presentations were prepared. Mr Dunlop said that he produced those “decks” himself. Whilst the presentation inevitably changed to some extent over time, the version in the exhibit to Mr Higgins’ witness statement is accepted as being representative of those presentations. Indeed, according to Mr Higgins, it was the presentation that he received as a potential investor.

34. On a slide headed “Project Red Card” there are a number of bullet points. The first describes the project as involving a class action with a value of over £600 million. It appears from the bullet point that that figure was based on historic claims as opposed to future data rights. A hundred potential defendants were said to have been identified. Over 1,500 professional footballers had signed letters of intent and also a number of professional cricketers had signed a memorandum of understanding.

35. The fourth bullet point stated that “Our legal team has issued letters before action to some of the largest companies in the case.” Further bullet points indicated that there were two legal opinions supporting the case with (presumably prospects) “above 65%”. Project Red Card was said to have been created by the claimant and that “leading the case is a top UK sports law firm, IPS Law”.

36. The other promotional communication referred to was a press release dated 29 August 2022 which said: “Global Sports Data and Technology Group confirms that IPS Law has issued letters before claim in line with the pre-action protocol regarding the unlawful use of professional football players’ data by the betting gaming and sports data industry.”

37. There were then quotations by Mr Farnell and Mr Slade. Mr Farnell confirmed that letters before action had been issued and said that this was on behalf of over 1,400 professional football players in the UK. Mr Slade said, amongst other things, that he would like to thank “all of the legal teams to date and all of our financial supporters.”

38. Mr Dunne made great play of the bullet point in the PowerPoint slide which referred to “our legal team” and similar comments in the press release which he said demonstrated that the defendant was instructed by the claimant as its solicitor. But it seems to me that it can equally be read in the way contended for by Mr Hogan in that the claimant and defendant were acting in partnership so that the claimant was simply confirming that the defendant had issued letters before action and that the description of “our legal team” was only part of the description of the overall team used for Project Red Card.

39. Both Mr Dunne, in his submissions, and Mr Farnell, in his evidence, laid great store by the fact that Mr Farnell had written letters before action to a number of potential defendants. Yet it was clear from those letters that they were described as being written on behalf of various, named players and there was no mention of being instructed by the claimant. The defendant’s argument had to be extended to say that as the players had not yet been signed up as such, the only party to be able to give instructions to the defendant to send those letters before action was the claimant and therefore it had assumed the role of client in respect of such work preparatory to “onboarding” the potential claimants.

40. It does not seem to me that the wording of these documents, which are clearly advertising puff to some extent, can weigh heavily in terms of a description of the relationship between the claimant and defendant. Taking the presentation as a whole, it is at least as apt to describe the group of entities who had come together for the purposes of Project Red Card in the sort of partnership described by the claimant as for the claimant indicating that it had retained solicitors to pursue the claims in a traditional solicitor and client relationship. Budgets

41. A number of documents were produced to be sent to potential investors concerning the costs involved in Project Red Card. Some of those documents included costs said to have been incurred by the claimant, and others involved costs to be incurred by the defendant (and sometimes both of them). How exactly investors were to use those budgets is not entirely clear and I note from Mr Higgins’ witness statement that it seemed a good deal of work had to be done by the investor and so the relevance of the figures themselves is perhaps questionable. Mr Dunne submitted that the very existence of the figures put forward by the defendant as having been incurred was sufficient to demonstrate that the claimant was aware of the work that had been done by the defendant. The budgets were put together by either Mr Slade or Mr Dunlop and so they had notice of the figures involved.

42. The evidence of Mr Slade and Mr Dunlop regarding these costs was not particularly convincing. It seemed to me that they assumed that the monies obtained from the investors would pay for the various entities’ work to date and that investment would be paid for over time by the success of the claims. In effect, therefore, the costs would be paid for and, to all intents and purposes, simply disappear.

43. Ultimately, I have concluded that I cannot draw any great inference from the budgets. In particular, I do not think they are misleading in the manner described by Mr Dunne in respect of the investors who received them. Either they were costs ultimately to be met, one way or another, by the claimant, as the defendant contends, or the costs had been incurred by the defendant itself as a reflection of the time engaged in the project. In either event, budgets were produced with a view to those time costs being recovered. Invoicing

44. The fourth point of dispute challenges the treatment of funds received from third party investors. As indicated earlier in this judgment, the treatment of those funds is undoubtedly contentious and there is no need for me to do anything other than record that a challenge has been made. More importantly, for the purposes of this judgment, there is then a challenge to numerous invoices revealed by the cash account beginning in October 2022. Those invoices are not before the court for assessment and indeed they are not before the court in any other fashion either. Copies of those invoices were not exhibited to any witness statement or otherwise included in the bundles. The claimant says that it did not receive these invoices and so has never seen them. The evidence of Ms Lawler (as well as Mr Farnell) for the defendant went purely to the delivery of such invoices.

45. Ms Lawler’s evidence was, understandably, very much based on “what would” have happened in terms of the production and posting out of invoices and she could not have been expected to have any particular recollection of the disputed invoices several years after the event. The two invoices before the court were emailed to the claimant rather than posted. Mr Farnell said that this was because it was the end of the relationship and I do not see anything unusual in that.

46. Similarly, I do not think that Mr Farnell’s explanation for invoicing the client for the sum remaining on client account was surprising in itself. It is not uncommon, in my experience, for a solicitor at the end of a relationship with their client to decide to limit the invoice which he considers he is entitled to render to the credit balance, rather than deliver a bill for a larger sum and have to pursue the client for the remainder. That is what Mr Farnell said in evidence and, despite Mr Hogan’s attempts to suggest something sinister in this practice, I do not see that as being the case here.

47. There are two more important factors concerning the first invoice in my view. One is that the description in the narrative of the work done which Mr Farnell dictated for someone else to type up, does suggest, as Mr Hogan submitted, that it was intended to cover all of the work done “from inception” until the end of the relationship. That would seem to leave no space for work done to be claimed in any other invoices. In the absence of those invoices, it is unclear what work those invoices were said to reflect.

48. Secondly, the existence of the invoices was revealed by the cash account on a document described as a “live matter enquiry.” However there are two versions of this document and one of them contained no mention of those invoices even though they ought to have appeared chronologically as entries during the running of the ledger. There were a number of matters of concern according to Mr Hogan regarding the cash account. Some of those concerns did not seem to me to be of any great weight. I am aware, for example, that where bills have been rendered then the work in progress figure can be brought to zero to reflect the fact that it has all been billed, even if some of that work was written off.

49. Other concerns such as the peculiarity of a computer based document being typed by hand because of some apparent computer difficulty and whose entries then did not run chronologically in certain respects, held more weight. They would have cast concern on the reliability of the figures if that was an issue currently before the court. But as the defendant was not relying on the cash account, in relation to the preliminary issues, they were simply credibility points being made by the claimant and I do not need to set them out in any further detail.

50. The important issue, in my view, is the existence of the two versions of the document where one includes interim invoices and the other does not include them at all. Despite this, the same sum appears to be available for the first invoice before the court to be rendered.

51. Concerns were also raised by the claimant in respect of the second invoice which dealt with work specifically said to concern the litigation funding from Safe Harbour LLC. An introducer’s fee of £20,000 was invoiced but it did not appear on the second invoice before the court. Instead, it was paid from client account rather than office account which suggested that it was paid for by the claimant (from funding received) but not actually invoiced to it. The August 2022 letter

52. The rather peculiar approach to documentation produced by the defendant brings me onto what is said to be a retainer letter sent by the defendant to the claimant in August 2022. This letter comprises the essence of Point 3 in the points of dispute. It is common ground that it was a draft letter and indeed there are spaces still to be completed in it. The point of dispute argues that it is of no effect given the lack of any description of the scope of work, any information about costs and charging rates. The reply is in my view very carefully worded and includes the following: “C accepts that they were in receipt of a retainer letter which set out a clear liability for them to pay the fees of D. This was prepared so as to allow litigation funding to be obtained. … C’s argument to the effect that the fact that they did not sign the retainer letter renders the contract irrelevant [sic] is legally and factually wrong. It is trite law that an offer to contract on terms can be accepted by conduct… Here, D provided C with terms of a retainer which would govern their relationship going forward. C then continued to provide instructions to D on this basis and in full knowledge of those terms. In the circumstances, the court should have no difficulty in finding that C accepted the retainer terms through conduct.”

53. Mr Farnell’s first witness statement, at paragraph 15, merely says that “A Precedent Rule 15 letter was sent to GSDT in August 2022.” He then goes on to reiterate the point made in the reply to the points of dispute regarding the apparent existence of a retainer as a result of the claimant’s receipt of this retainer document. As far as I can see, there is no mention of the August 2022 retainer letter in Mr Farnell’s second witness statement.

54. During cross-examination, a second version of the August 2022 letter came to light via the transcript of a judgment in the case of IPS Law LLP v Safe Harbour Equity Distressed Debt Fund 3 LP [2024] EWHC 2663 (Ch), a decision of Deputy ICC Judge Curl KC. The second version of the letter differed in at least one respect, namely that there was simply a gap in the space for hourly rates to be set out rather than the figure of £315 in the first version. Mr Farnell was unable to explain why there were different letters, notwithstanding the fact that he had exhibited the second version to a witness statement in the Safe Harbour litigation (see quotation of paragraph 66 of the judgment below).

55. Mr Farnell was also unable to explain why the reply to the point of dispute expressly states that the purpose of the retainer letter was to assist with the obtaining of litigation funding. He was asked for this explanation having stated the opposite in cross examination. He clarified the defendant’s position, to some extent, by stating that the reply was “wrong.”

56. There was one further element concerning the production of the August 2022 letter which seemed to me to be significant. The interaction between the claimant and defendant began in or around March 2021 and so the August 2022 letter was not produced for nearly 18 months. Even if it was not produced purely for the litigation funding proposals, it was sent many months later than would be expected as a matter of professional conduct in a solicitor and client relationship.

57. This period of delay is highlighted by reference to an email sent by Mr Farnell on 10 June 2021 to Messrs Dunlop and Slade as well as others involved in Project Card at the time. Having referred to some issues in drafting the individual CFAs / DBAs, he said: “Turning to the draft letter then Lois and I spoke with both Jason and Russell yesterday and we have now I believe a template that is capable of being sent out to the players by way of introduction. Both Russell and I are happy with it. … In addition we have amended to reflect the position vis a vis our standard Rule 15 (which all solicitors have to send out to clients informing clients of who will be responsible for their claim, costs etc) and this is now ready. Perhaps one of the points we can discuss is when we seek to get these letters and correspondence out to the players.”

58. Despite working on the client care elements of the letters to go to the individual claimants-to-be, there is no mention of a similar letter needing to be sent to the claimant to rectify the “Rule 15” position that had not been addressed in the three months since the first meeting. The Global Agreement and the December 2022 letter

59. The Safe Harbour judgment proved to be fertile ground for Mr Hogan to till in cross examination of Mr Farnell. At paragraph 66, Judge Curl states: “66. IPS’s case, as introduced at paragraph 22 of Mr Farnell’s first statement, was that “In September 2020, GSDT formally instructed IPS to advise on Project Red Card generally and to litigate the Personal Data Claims.” In that first statement, Mr Farnell relied on two documents as “primarily” containing the terms on which IPS would act: first, an agreement between GSDT and IPS dated 1 September 2020, which was described by him as the “Global Agreement”; and, second, IPS’s standard letter of engagement dated 1 December 2022 and accompanying standard terms of retainer (“December 2022 Engagement Letter”). The December 2022 Engagement Letter was referred to by IPS during the hearing as “the CFA”, although even if its terms had become binding in their entirety the document itself cannot conceivably have given rise to a CFA arrangement. No competent solicitor could reasonably have thought that it did: it is at most an engagement letter and contemplates that a CFA might, separately, be entered into. In Mr Farnell’s second statement, he made reference to (and exhibited) a further engagement letter dated 22 August 2022 (“August 2022 Engagement Letter”).

67. None of the Global Agreement, December 2022 Engagement Letter or the August 2022 Engagement Letter is signed by GSDT. Only the August 2022 Engagement Letter is signed by IPS.”

60. Mr Hogan inevitably queried with Mr Farnell why neither of the “primary” documents referred to by Judge Curl had been disclosed in these proceedings. Mr Farnell’s response was to say “if it’s not in the bundle, it’s not before the court.” I recorded him as saying that on three separate occasions. It seemed to me to be a remarkable statement even in proceedings where there is no continuing obligation to disclose relevant documents. It may be a statement of incontrovertible fact since those documents are not before the court. But the implication that a document that is out of sight is necessarily also out of the judicial mind is simply quite extraordinary. It is perhaps fortunate that the judgement of Judge Curl is more than sufficient to understand the nature of the contents of those documents without having to see them. But if that were not the case, it seems to me that the defendant would have had some very difficult questions to consider about disclosure of what would appear to be fundamentally relevant documents.

61. It would, in any event, have been a short step to infer that the documents do not support the defendant’s version of events. As it is, the defendant’s case, as set out in Mr Farnell’s witness statement in the Safe Harbour proceedings is described by Judge Curl as IPS being appointed by GSDT to represent the professional sports people in their claims under Project Red Card. In return, IPS would be paid 10% of any award of damages or any settlement of the claim beforehand. As Mr Hogan pointed out in his closing submissions, the Safe Harbour proceedings have run in parallel with these proceedings. Here, the defendant says that it was entitled to be paid on an hourly rate basis rather than a share of the recoveries for the individual data claims. In the Safe Harbour proceedings, the reverse was sought to be shown.

62. In the Safe Harbour judgment, Judge Curl makes it clear that he was not seeking to establish the nature of the relationship between IPS and GSDT. The relevant question that he had to determine was whether or not there was a substantially triable issue, namely a binding contractual entitlement to share in the net damages recovered under Project Red Card. In that context, it was clearly to IPS’s advantage to demonstrate that it had a share of what potentially was said to be tens of millions of pounds. By so doing, IPS could avoid the advertising of a winding up petition against it, which was the purpose of the proceedings in the Business and Property Court. Mr Dunne sought to downplay the relevance of the Safe Harbour judgement given this difference of judicial question. However, as Judge Curl commented, IPS’s submissions tended to elide the two questions so that it sought to show a triable issue over whether or not it was GSDT’s solicitor. Consequently, there is a good deal of material which seems to me to be entirely germane to the question I have to resolve.

63. Mr Dunne also sought to challenge the evidence of Mr Dunlop as being inconsistent between these proceedings and the Safe Harbour litigation. Mr Dunlop was a witness in those proceedings and produced a witness statement dated 11 October 2023. At paragraph 18, he referred to a “Global Agreement” which he said was in draft form and was in the process of being negotiated when discussions between the claimant and defendant broke down. At paragraph 22, Mr Dunlop stated that the figures were never “set in stone” and were the starting point for negotiation. This is said in the context of a discussion with a funder which was unsuccessful. He also made reference to discussions with Safe Harbour themselves where Safe Harbour’s solicitor set out in an email Safe Harbour’s expectations of receiving their outlay plus interest +10% of any damages or settlements. Based upon that email, Mr Dunlop stated that it was nonsensical for Mr Farnell to assert that the economic breakdown of Project Red Card was settled or agreed. At paragraph 24, Mr Dunlop referred to a number of models being developed which looked at different ways in which the proceeds would be distributed. That again demonstrated, in Mr Dunlop’s view, the economic aspect of Project Red Card was very much under discussion and no agreement had been reached.

64. Mr Dunne contrasted that evidence with Mr Dunlop’s witness statement (set out at paragraph 13 of this judgment) regarding a 10/10/10 distribution which had been “made clear from our first meeting”. In response, Mr Dunlop said that he had written the statement in the Safe Harbour litigation in response to questions received from Safe Harbour. He said that he had done his best to present the facts as he understood them. He had wanted to see Mr Farnell’s witness statement in order to respond to it and did not see the witness statement as his own but really a witness statement for Safe Harbour. He said that he could not argue that he was neutral in the dispute but considered that he had given his evidence in a true fashion. He did not consider there to be the contradiction put forward by Mr Dunne and said that he thought the situation could be truthful in both statements.

65. In my view, Mr Dunlop was entitled to state that he was seeking to be truthful in both cases and I do not consider that there is the inconsistency for which Mr Dunne contended. In order to discuss the project, it seems to me to be inevitable that some method of calculation of the distribution between the participants in Project Red Card needed to be suggested or else it would simply be too vague to discuss or pursue. That would not mean that, when subsequently negotiating with a third party investor, there was not room for adjustment of the original distribution proposal. As such, the general structure of the distribution could be set out from the off and yet not be set in stone until the third party investment had been obtained. To the extent that there is any inconsistency at all in Mr Dunlop’s evidence, it seems to me that it is completely dwarfed by the contradictory nature of the evidence given by Mr Farnell in the two separate proceedings. Decision

66. At the end of my description of the main witnesses’ evidence at paragraph 23, I described them as being unperturbed by the cross examination of them in respect of the central issue of the nature of the relationship. That sang froid continued in respect of the other areas I have just described. This was not surprising in my view, in respect of Mr Dunlop, whose evidence was straightforward and consistent. It was, however, surprising in respect of Mr Farnell who had to steer through considerably choppier waters. He did not seem concerned by the appearance of the Safe Harbour judgment or the trenchant criticisms of the computer records in the way that witnesses generally become uncomfortable in trying to explain away apparent discrepancies.

67. Plainly, witnesses react in different ways and an unusual reaction ought not necessarily be seen in a negative light. However, it did suggest that Mr Farnell was expecting the difficult questions he received in the witness box and so was not surprised by their appearance. This suggested a calculated approach to the evidence and this caused me to view the missing documentation in this case as being deliberately withheld as part of a stratagem to put only documents which were thought to support the defendant’s case before the court.

68. It was obviously a high-risk approach as the appearance of the Safe Harbour documents was always a possibility, even if the judgment had not been handed down prior the hearing before me, and the absence of such documents was likely to be viewed negatively by me. However, there was no doubt whatsoever that the interim invoices referred to in one of the cash accounts would come to light since they were referred to in the points of dispute, replies and the parties’ witness statements. Even though the claimant’s position was that they had not received those invoices, they were not produced by the defendant. Instead, the defendant’s argument was that only two invoices were being assessed by the court and so these other invoices were irrelevant. Separate proceedings needed to be brought to set out the claimant’s case on any breach of fiduciary duty or similar. By way of illustration, Mr Farnell stated at paragraph 11 of his witness statement in support of the application to strike out preliminary point of dispute 4 that: “It is denied that the invoices to which point 4 relates were not sent to GSDT. However, this assessment is not concerned with any of those invoices and so they relate to the s70 assessment.”

69. It is of course true to say that the disputed invoices are not being assessed in these proceedings. However, that does not prevent them being produced as exhibits, not least where the defendant is seeking to demonstrate a solicitor and client relationship. This would seem to be an obvious thing to do if they supported the defendant’s case. In their absence, it is difficult not to lean towards the assumption that any such invoices were there simply to “mop up” time recorded by fee earners at the defendant and be paid from the investments received and which are described by the parties as either working capital or litigation funding.

70. One of Mr Farnell’s central arguments was that he would not have agreed to an arrangement as portrayed by the claimant because it would make no economic sense for his firm to do so. There were two interwoven strands to this argument. The first was that the firm could not operate on a scheme which did not involve payment for the work done. Secondly, that his boutique firm did not have the capacity to indulge in such a speculative venture. If the disputed invoices were used as “mopping up” bills for work done in the manner I have just described, then that was an answer to the particular problem. There is no direct evidence of this but I do not think it is a large leap to infer that invoices recorded in the defendant’s accounting system but not seen by anyone outside the defendant, including the court, were more of an accounting solution to convert work in progress into bills which could be treated as income for the firm.

71. In respect of capacity, much was made by the defendant of the small, boutique element of Mr Farnell’s firm. This was not a point made in the first witness statement of Mr Farnell, but it may be that he (optimistically) assumed there was no issue regarding the relationship between his firm and the claimant. In the second witness statement, Mr Farnell says in the middle of paragraph 5 of his witness statement that: “It would not be possible for [a] small boutique and specialist law firm to take any considerable capacity away from IPS Law without financial payment”

72. It seems to me that this sentence is quite revealing. Whilst a boutique firm, Mr Farnell clearly suggests that if financial payment were forthcoming, “considerable capacity” could be available to GSDT. Later, in the same witness statement, Mr Farnell suggests that the defendant would not have continued to be involved in a significant amount of work “if it was aware that it was not going to be paid” (paragraph 12) and it would not make commercial sense “to agree not to be renumerated (sic) at all” for significant levels of work (paragraph 13).

73. These later comments are not a question of capacity. They relate to the overall nature of the scheme. The claimant’s case is that the 10% of the DBA proceeds from the individual cases would represent a profit on each party’s involvement. The defendant, at least in these proceedings, departs from that view and says that the work done before any of the individual claims were “onboarded” also had to be paid or else it was uneconomic.

74. That is a view laden with hindsight, in my view. The potential rewards were said to be significant with the sum of £60 million being suggested. 10% of that figure would be worth risking some speculative work, or at least it would be a rational choice to do so if the risk appetite were there. The fact that the project was not successful, at least to date, does not mean that it was not a reasonable conclusion to draw to risk some time and effort to see if it might be successful.

75. It seems to me that, once the parties fell out, Mr Farnell’ opportunity to share in the proceeds of any DBAs had disappeared and that led to the invoices being raised and sent to the claimant.

76. The parties’ falling out occurred in respect of the use of the external investment sought in order to tide the project over until monies started to come in from the putative defendants. In this context, time “sunk” into the project might be recovered initially from the funding and ultimately by repayment of the loans. Mr Dunlop’s comment to Mr Farnell that “no-one expects you to work for nothing” reflects, in my view, this idea that the sunk costs would, or at least could in principle, ultimately be recouped. It did not mean that the claimant would be paying the defendant. Payment by Mr Farnell of counsel once the litigation funding had been secured falls in the same category.

77. For the sake of completeness, I record that Mr Dunne added to the arguments regarding capacity and cashflow militating against the conclusion of a joint enterprise. He pointed out that the claimant had needed cash but seemed to expect no-one else to do so. That, in my view, was countered by Mr Hogan’s point that the claimant was trading away shares in itself in order to obtain funds. There is no comparison with the defendant in this respect.

78. As mentioned at the outset, where there are oral agreements, the parties always point to the surrounding context to show the greater or lesser likelihood of each party’s case being correct. In my judgment, none of the factors I have discussed tilt in favour of the defendant. The outside investment could equally be seen as working capital or litigation funding given the drafted documentation and the presentation material could support an interpretation consistent with either party’s view of the relationship.

79. The remaining matters, in my judgment, favour the claimant’s interpretation. The agreement with Freeths demonstrated a predecessor law firm’s involvement which relied on a goodwill agreement at the end of the relationship for a potential future payment. It plainly pointed away from a solicitor client relationship since otherwise Freeths would simply have invoiced the claimant for the time spent. It seems to me the nature of that relationship had to be apparent to Mr Farnell from the outset.

80. I have described the non-appearance of the disputed invoices, the Global Agreement and the December 2022 letter. If any of those documents supported the defendant’s case then surely they would have been produced. Instead, they leave room for adverse inferences to be drawn and not just as a result of the Safe Harbour litigation.

81. The extrinsic evidence which quite possibly weighs the heaviest, in my view, is the production of the draft retainer letters for the individual claims compared with the non-production of any retainer letter for 18 months or so. Where there was to be a solicitor and client relationship, Mr Farnell was prompt in ensuring the client care documentation (“Rule 15”) was in order. By contrast, there was no such alacrity in his dealings with the claimant and that speaks volumes to me about his understanding of the relationship. Indeed, the answer in the reply to the points of dispute enhances that characterisation: the client care letter was only produced at all for the purposes of seeking external funding. Simply to say the reply was wrong in the witness box was unconvincing. It is difficult, in the light of Mr Farnell’s evidence in the Safe Harbour case, not to conclude that he considered the reply did not support his case in these proceedings and simply decided to change tack.

82. It will be apparent from the foregoing paragraphs that I prefer the evidence of Mr Dunlop to that of Mr Farnell. I consider the relationship between the claimant and the defendant be one of a partnership or joint venture of different entities bringing their skills to a project on the basis that it would make a considerable amount of money for everyone if successful.

83. Such a relationship is not a client and solicitor relationship of the sort where an implied retainer exists and the client is liable to pay the solicitor for doing work even if there is no written documentation. It is very much a matter where each entity puts in its time and effort at its own risk if the project proved unsuccessful.

84. Consequently, I find for the claimant in respect of Points 2 and 3 of the points of dispute. Point 1 is then rendered nugatory along with the remainder of the points of dispute.