Go on then.
I would advise people to read Conn’s article first before reading the below. I would apologise for the length of this post, but the two judgments combined are over 80 pages.
1. As quick background, the case related to allegations that just before Gavin McCann signed for Bolton from Villa he was tapped up by a new agent (SEM/SEM's employees) and convinced to leave his old agent Tony McGill, thereby breaching McCann's oral agreement with McGill. SEM took the commission from Bolton for the transfer, rather than McGill, so McGill sued just about everyone available at both SEM and Bolton in civil proceedings using every possible line of argument under the sun.
2. Conn’s primary position in his article is that Lee had ‘knowingly given false evidence’ in civil proceedings in which he and Bolton were both defendants. Conn relies, in this regard, upon a passage from a costs judgment, which is not public. Conn also indicates towards the end of the article that McGill (the Claimant, and an adverse party to Lee) was a source contacted by Guardian in preparing the story, which may need to be borne in mind.
3. Admittedly, it is somewhat difficult to say without seeing the costs judgment what specific findings it states about Lee, but (i) that costs judgment wasn’t being appealed in the Court of Appeal anyway; and (ii) more importantly, it is not consistent with the characterisation of Lee throughout the substantive judgment that was actually appealed, which is linked at the bottom of this post and described further below.
4. The Judge at first instance, Waksman QC, said that he found Lee's evidence "not always convincing" and that he did not accept that Lee was right about (i) having been told about the availability of Gavin McCann by a specific individual at Bolton (McParland, the Club Secretary); and (ii) two specific meetings having taken place between Bolton and SEM insofar as they related to McCann.
5. These types of disputes as to facts arise in pretty much every single civil case. It does not follow that because a Judge did not like someone's evidence on a point he found they were not telling the truth and doing so knowingly (lying). For example, the Judge overall found McGill to be a reliable witness but found that he had exaggerated on certain points or been mistaken on others. This happens in most cases that reach judgment.
6. It is a whole different kettle of fish to describe someone’s evidence as 'not always convincing', as opposed to the judgment’s findings on McCann, who is characterised as knowingly untruthful and found to have fabricated a number of events, or to say that the evidence provided was unsatisfactory, as was the case for Anderson (an SEM defendant). Judges are quite nuanced in how they describe evidence, and there is nothing in any public judgment in this case to suggest that Waksman considered that Lee had knowingly misled the Court or lied (as opposed to being mistaken).
7. The facts alleged in this case arose in 2007. The trial occurred in 2014. It’s not uncommon for someone’s evidence to be found unconvincing by a Judge in any event, and becomes increasingly likely with the amount of time that elapsed between the the facts in this case and the trial.
8. More specifically, Conn portrays the meetings between Bolton and SEM as having been a complete work of fiction, and uses this in support of his criticisms of Lee. However, the High Court judgment states that, while any meetings between SEM and Bolton could not have related to McCann, there may have been meetings between those two parties at the relevant time, as they had been discussing other players, including Heidar Helguson and Danny Guthrie, at that point (para 92).
9. In fact, Waksman made it clear in his judgment on more than one occasion that the intention of Bolton and certain of the Bolton parties appears to have been to keep their powder dry, rather than to engage in any form of conspiracy with SEM, and to attempt (unsuccessfully, as it turns out) to avoid being drawn into a dispute involving the rival agents McGill and SEM.
10. So Waksman found that (i) Lee's intention was to avoid being caught in the middle of a dispute between two agents (para 72); (ii) Lee txted McGill around the time the dispute started asking him not use Lee as a ‘pawn’ (para 72); (iii) Lee's solicitors said in 2009 that he could not assist with the case brought against McCann by McGill, despite that not being the case (para 90); and (iv) some or all of the defendants did not want to rock the boat when a convenient deal had presented itself (para 161).
11. Conn also relies on the fact that during the course of the costs judgment Waksman made reference to the conduct of the various defendants, and reduced their costs awards on that basis. The inference Conn appears to want the reader to derive is that Lee knowingly lied and that, as a result of this, the costs award for the Bolton defendants was amended downwards. However, the material in the High Court judgment which is far more prejudicial in its findings on the Bolton defendants relates to the positions they took on the backdating of the agency agreement between Bolton and SEM and the changing of Bolton’s evidence (in particular by Phil Gartside) in relation to when that agreement was actually signed (para 121).
12. As background, the agreement entered into between SEM and Bolton relating to the transfer was actually signed on 8 June 2007, but was marked by the parties as having been entered into on 1 June 2007. This was required by SEM to show that they had not simply poached McCann at the last minute and that they had been acting for him throughout and therefore provided services to him, rather than simply relying on the work of McGill. There are two points that need to be considered in relation to this backdating.
13. First, Waksman stated that, while Bolton agreed to backdate the agreement, he did not think the purpose of the backdating would have been explained to the club and the Club secretary may well have assumed that the earlier date included was simply the date on which SEM had started acting for McCann (para 124). Even Gartside, who is subject to some criticism in the judgment, was not found to have agreed to backdate for the same reasons as SEM wanted the agreement backdated. SEM are criticised heavily in the judgment for the backdating and their intention at the time in requiring it. Bolton are criticised more for not coming clean immediately, and providing false accounts, on whether the backdating had occurred. It may well be for this reason, although you would need to read the costs judgment, that SEM's costs were capped at 30% whereas Bolton were able to recover 80% of their costs (para 13 of COA judgment).
14. Second, and more pertinently for the purposes of Conn’s article and this post, there is no suggestion in the High Court judgment whatsoever that Sammy Lee had any involvement at all with the backdated agreement (see paras 113-124). It was the Bolton club secretary that was involved with the paperwork and Lee’s name is not mentioned once in connection with that particular issue.
15. Conn also characterises the Court of Appeal as having 'upheld all of the findings of the High Court'. That isn't really how appeals work and it’s also a mischaracterisation of the appeal. The Court of Appeal isn't there to re-litigate a case or (in the vast majority of cases) to make new findings of fact. It's there to deal with the grounds of appeal raised by the applicant, usually on specific, narrow points of law. Applicants can attempt to appeal on the facts where there has been a clear error by the lower Court, but in the vast majority of instances the Court of Appeal will simply adopt the factual findings of the High Court.
16. The suggestion that the Court of Appeal rubber stamped all Waksman’s findings on Lee's evidence is therefore misleading when (i) the question of the reliability of Sammy Lee’s evidence in the lower court was not in issue in the appeal; (ii) the extent to which Lee's evidence was criticised is misrepresented by the Conn article; and (iii) the appeal by McGill actually succeeded on certain of its grounds (albeit that those grounds were, as is usual, legal rather than factual);
17. It is also clear through the High Court judgment, and indeed from the appeal, that the Court considered that SEM (the rival agents) and its employees were the primary wrongdoer in the case. In fact, Lee and the Bolton defendants weren’t even Respondents to the appeal, which related only to the dismissal of the claim against the SEM defendants. The suggestion that Bolton were somehow complicit in the inducement that SEM undertook, is therefore highly misleading. There is therefore absolutely no consequent suggestion whatsoever that Lee took any part in the inducement by SEM. This is borne out by the fact that McGill decided to go against only SEM in the appeal and it was SEM, rather than Bolton, whose costs were limited most severely by the High Court.
18. A thread that seems to run through the Conn article appears to be the desire to plant in the reader's mind that Lee committed perjury. Interestingly, McGill instigated a private prosecution against most of the defendants in this action, including Lee, alleging perjury. That private prosecution failed and all the defendants were acquitted.
19. The article also makes a great deal of the fact that the FA elected not to take action against any parties in relation to the transaction. However, for the FA to take action against you, you need to be in breach of one of its regulations. There is the possibility that the FA could, theoretically, have taken action against Bolton for (i) having dealt with Weston (of SEM) prior to there being a written agreement between the Club and agent; or (ii) if they knew that Sheron also of SEM, and who was actively involved) was not a licensed agent.
20. (i) above is a breach of the regulations but, as the High Court judgment says, it is common practice for agents to tie up all of the paperwork prior to completion of a transfer and the FA does not regard it as a breach of the regulations if work prior to that written contract is ultimately dealt with in a written agreement. As such, it is highly unlikely that the FA would take action against Bolton on this point.
21. In relation to knowledge that Sheron was unlicensed, there was no finding that Bolton either dealt primarily with him and the point of Bolton's knowledge wasn't put to anyone from the club by McGill during the trial (para 175).
22. Taking into account the above, I cannot see any basis for the FA to have taken disciplinary action against Bolton. There is even less possibility that they could have proceeded to take disciplinary action against Lee in relation to the facts of this case. I cannot even identify a regulation that would have applied to him, rather than the club, let alone been breached. An inducement to breach of contract, as was ultimately found to have been committed by SEM, is a civil matter and not a concern of the FA.
23. Ironically, because McGill undertook various activity on behalf of McCann under an oral agreement he was, himself, arguably in breach of the Regulations if Bolton were. It is therefore a bit rum of the article to suggest that Regulatory action should have been taken by the FA against Bolton when McGill was arguably in breach of the very same regulation (and never ultimately ended up entering into a written agreement with McCann so didn't remedy the situation as Bolton did).
24. So, in summary, Lee was found not to have been liable for any alleged claim in the High Court, was not even included as a party for the Court of Appeal, was acquitted in a private prosecution brought by the same claimant for perjury, was not subject to any regulation that could have brought any form of FA charge, and was not found in any of the factual findings of the High Court to have knowingly lied.
25. Finally, Conn misunderstands the basis of the appeal, which is on a technical legal point, but I won't go into detail on that one as it will be even more tedious to folk than the above.
Other than the above, the article is spot on.
High Court judgment: mannyroad.com/wp-content/uploads/2014/09/FinalJudgmentMcGill.doc
Court of Appeal judgment: To view the link you have to Register or Login