[New search] [Printable RTF version] [Help]

MR SALTER QC:

Introduction

1. The defendant, Michael Bisping (“Mr Bisping”), is a mixed martial arts fighter, who is well-known in that world. The claimant, Anthony McGann (“Mr McGann”), was for a period Mr Bisping’s manager. In this action, Mr McGann claims payment of arrears of commission on Mr Bisping’s earnings, and repayment of expenses alleged to have been paid on Mr Bisping’s behalf. Mr McGann says that these sums are due under the terms of a Management Agreement dated 22 July 2005 (“the Management Agreement”), alternatively on what his closing submissions describe as a restitutionary basis.

2. Mr Bisping denies signing the Management Agreement (though he accepts that he did sign some form of agreement), and denies the authenticity of the invoices and other documents relating to expenses now relied on by Mr McGann, alleging that they have been fabricated for the purposes of this action. Mr Bisping’s fundamental position is that he owes nothing further to Mr McGann.

3. Mr Bisping denies that any further monies are owed by way of commission. In particular:

3.1 He denies that any commission is payable on sums deducted at source by the US and Australian tax authorities

3.2 He denies that any commission is payable to Mr McGann on the value of two Range Rover motorcars which Mr Bisping received from Zuffa LLC (“Zuffa”) following his appearances in the reality television series The Ultimate Fighter (“TUF”), on the basis that those cars were a gift.

3.3 He denies that any commission is payable to Mr McGann on monies received by Michael Bisping Limited and/or Royal MMA Inc.

3.4 He denies that Mr McGann has any contractual right to commission following the ending of their relationship in May or July 2011

4. Mr Bisping also denies that any further payment for expenses is due from him, asserting that he has already paid all that it was agreed that he should pay. It is in any event Mr Bisping’s case that the claims now put forward by Mr McGann are (like the invoices relied upon to support them) invented or (at least) exaggerated.

5. Mr Bisping also relies on settlements of account which he says were reached between him and Mr McGann in 2007 and December 2010. Finally, Mr Bisping says that at least some of Mr McGann’s claims are statute-barred. Mr Bisping also counterclaims for an account of monies received by Mr McGann on his behalf.

The course of the hearing

6. The Claim Form in this action was originally issued on 18 February 2013 in the Warrington County Court. The proceedings were first transferred to the Chester County Court, then (by order dated 25 November 2013 of HH Judge Halbert) to the Central London County Court, and finally to The London Mercantile Court.

7. The action was originally listed for trial in March 2015 before HH Judge Mackie QC. However, on 26 February 2015 HH Judge Mackie vacated that trial date and adjourned the matter to come on not before 1 October 2015, on the grounds of what he described as “a deplorable failure by [Mr Bisping] regarding disclosure”, resulting in the case being in “a state of disarray”. HH Judge Mackie gave directions for mediation and/or a without prejudice meeting between the parties and their respective solicitors “with a view to seeing what steps can be taken to settle the case or at least narrow the issues in dispute between the parties”. Regrettably, no settlement was achieved, and the action was then re-listed for trial before HHJ Waksman QC on Monday 5 October 2015. Unfortunately, Mr McGann was injured in a road accident shortly beforehand, and that trial date also had to be vacated.

8. The trial was then re-listed before me, to begin on Wednesday, 26 April 2017. It eventually occupied 11 court days, during which I heard evidence from Mr McGann, from Mr Bisping, and from 11 other witnesses (one of whom gave evidence by video link from the USA). A number of video extracts were played during the trial. Closing submissions were then made in writing. At trial, Mr McGann was represented by Mr Nigel Lawrence QC and Ms Victoria Roberts. They were not the counsel who had been instructed for the October 2015 trial date. Mr Bisping was represented throughout by Mr Gabriel Buttimore. I am grateful to all counsel for their assistance.

9. The 59-page Written Opening Submission served by Mr Lawrence and Ms Roberts on Monday 24 April 2017, less than two days prior to the start of the trial, took two preliminary points. First, it argued that Mr Bisping was precluded from disputing the authenticity of the Management Agreement and the invoices, because he had not served notice under CPR 32.19 in relation to those documents. Secondly, it argued that Mr Bisping was precluded from relying upon any witness evidence of fact at trial by paragraph 11 of the order dated 28 August 2014 of HHJ Mackie QC (“the August 2014 Order”), as a consequence of Mr Bisping’s failure to comply with the conditions of the August 2014 Order.

10. I ruled against both of these contentions, for reasons which I expressed briefly at the time and which I set out at greater length below.

CPR 32.19

11. Paragraph 2 of the Defence & Counterclaim served on 5 April 2013 responded to Mr McGann’s reliance upon the Management Agreement in his Particulars of Claim as follows:

2. The Claimant relies on [the Management Agreement]. In this respect:

(a) no admissions are made as to whether the [Management Agreement] was signed by the Defendant and the Claimant is required to prove this;

(b) at all material times the Defendant understood that he was managed not by the [Claimant] personally, but by Wolfslair Promotions Ltd .. with which company the Defendant believes he signed a management agreement in or around May 2005. The Claimant is accordingly put to strict proof that the Claimant is the proper claimant for any management fees ..

It has therefore been plain since April 2013, on the face of the Statements of Case, that the authenticity of the Management Agreement was in issue, and was a matter which Mr Bisping required Mr McGann to prove.

12. The Management Agreement was disclosed in Mr McGann’s first disclosure list served on 15 November 2013. The witness statements thereafter served by the parties reflected the fact that the authenticity of this document was in dispute. Mr McGann gave evidence about the execution of the Management Agreement in his first witness statement dated 25 March 2014, and served witness statements from Mr Lee Gwynn (dated 6 March 2014) and Mr Mike Wood (dated 16 March 2014) to the effect that they had witnessed the execution of the Management Agreement. Mr Bisping’s first witness statement, dated 31 July 2014, contained evidence (in paragraphs 20 to 23 and 49) supporting his pleaded case that he had not signed the Management Agreement in July 2005, but had signed a different agreement with “Wolfslair” in May 2005.

13. On 8 September 2014, Mr Bisping served a Re-Amended Defence and Counterclaim, which contained the following additional paragraph relating to the Management Agreement:

7A. .. It is not admitted that the Management Agreement was signed by the Defendant and it is also not admitted that the Management Agreement in the form relied upon was presented to the Defendant for signing and accordingly it is not admitted that any of the acts relied upon amount to acceptance of the offer said to be contained in the Management Agreement by conduct ..

14. As to the invoices and other documents relating to expenses, Mr Bisping’s Re-Amended Defence & Counterclaim was even more blunt, pleading in terms in paragraph 30A that the letters that were alleged to have enclosed the invoices “are recent fabrications made in support of these proceedings and were not created or sent at the time they purported to have been” .. “A number of the supporting documents are patent fabrications” .. “The remainder of the supporting documents have been recently created by or at the request of the Claimant for the purposes of these proceedings” .. “The claim for expenses herein against the Defendant is bogus and without foundation”. Again, the witness statements served on behalf of the parties amply demonstrate that both sides considered that the authenticity of these documents was a live issue.

15. Mr Graeme McPherson QC (the leading counsel then instructed on behalf of Mr McGann) prepared a 53-page Written Opening Submission dated 4 October 2015 for use at the trial listed to begin on 5 October 2015. It is plain from the terms of that document that the case then being put forward on behalf of Mr McGann was that the authenticity of the Management Agreement and of the various invoices and supporting documents relied on by Mr McGann was in dispute, and that these matters were issues that the court would have to resolve on the evidence at trial. Mr McPherson QC’s Written Opening Submission made no reference to CPR 32.19.

16. It therefore seems clear that, until the moment that Mr Lawrence and Ms Roberts served their Written Opening, both sides had been preparing for trial on the shared assumption that the authenticity of these documents was in issue.

17. CPR 32.19 provides as follows:

Notice to admit or produce documents

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served:

(a) by the latest date for serving witness statements; or

(b) within 7 days of disclosure of the document, whichever is later.

18. Unlike its predecessor, RSC Ord 27 r 4, CPR 32.19 contains no proviso dis-applying the rule in the case of any document “the authenticity of which the party has denied in his pleading”. Nor does it expressly say that the rule applies only “unless the Court otherwise orders”. I accept the submission of Mr Lawrence that this is a mandatory provision, the purpose of which is to ensure that the parties and the court know, beyond question, whether the authenticity of any given document is a matter in dispute. Merely putting the other party to proof in a Statement of Case of the authenticity of a document does not satisfy the requirements of the rule: see Mumford v HMRC. Nor are those requirements satisfied simply by a challenge made in a witness statement. Such a challenge would, in any event, be likely to come after the date specified in CPR 32.19 for the giving of notice, and so be too late for the issue to be dealt with satisfactorily in the witness statements of the other party.

19. Since it is common ground that any notice under CPR 32.19 ought to have been served at the latest by 29 August 2014 (the latest date for serving witness statements) and that no notice complying with this rule has been served at any point, it follows that CPR 32.19 now deems Mr Bisping to have admitted the authenticity of these documents, despite both his pleading and evidence to the contrary, and despite the assumption shared by both parties until very recently that these matters were to be in issue at trial.

20. In Mr Lawrence’s submission, that is the end of the matter. Under CPR 3.8(1), the consequences prescribed by CPR 32.19 have effect unless and until Mr Bisping applies for and obtains relief; and Mr Bisping has neither applied under CPR 3.2(2)(a) for an extension of time for service of notice under CPR 32.19, nor made any application under CPR 3.9 for relief from sanctions.

21. The logic of Mr Lawrence’s submissions cannot be faulted. However, in my judgment, the justice of the present case requires a different result. Applying the three-stage approach laid down in Mitchell v News Group Newspapers Ltd, as explained in Denton v TH White Ltd:

21.1 I must first consider the seriousness and significance of Mr Bisping’s failure to give the required notice. In my judgment, it was neither serious nor significant, on the particular (and perhaps unusual) facts of the present case. Mr McGann and his advisers were not misled by the failure, nor did the failure had any material effect on the orderly progress of the action. The parties, very sensibly, treated the pleading in paragraph 2 of the Defence as a sufficient indication that the authenticity of the Management Agreement was in dispute, and shaped their evidence on that basis in accordance with the timetable laid down by the court. They acted similarly in relation to the invoices and other documents relating to expenses, when these were eventually disclosed.

21.2 I must then consider why the default occurred. It seems to me to be plain that it occurred because of ignorance of the rule (an ignorance apparently shared by Mr McGann’s legal team, at least until the instruction of Mr Lawrence and Ms Roberts) rather than because of any deliberate default.

21.3 Finally, I must consider all the circumstances of the case, giving particular weight (in accordance with the guidance given in Denton) to the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders.

22. In considering all the circumstances of the case, it seems to me to be of particular significance that both parties prepared for trial, both in 2015 and 2017, on the basis that the authenticity of these documents was in issue, and that Mr Bisping was not precluded from challenging their authenticity by any deemed admission. It follows that all of the costs in relation to those issues (except for those relating to time spent on the point at the hearing itself) had already been incurred by the time that Mr McGann’s legal team took this point. In my judgment, to permit them to do so now would be unjust, and contrary to the overriding objective set out in CPR 1.1 of dealing with cases justly and at proportionate cost.

23. CPR 1.3 requires the parties to help the court to further the overriding objective. As the Court of Appeal stated in Denton[6]: “Litigation cannot be conducted efficiently and at proportionate cost without .. cooperation between the parties and their lawyers”. That is particularly so in the Commercial Court (of which The London Mercantile Court forms part) where, as is stated in paragraph A1.6 of The Admiralty and Commercial Courts Guide “The Court expects a high level of co-operation and realism from the legal representatives of the parties”.

24. There is, of course, no general duty on parties to point out to their opponents the procedural mistakes that those opponents have made. However, where a party intends to take a procedural point which, if correct, will mean that costs are being wasted by the other side, the duty of cooperation under CPR 1.3 requires that party to take the point promptly. On the facts of the present case, the high level of realism and co-operation required of parties to commercial litigation should have involved Mr McGann’s legal team in giving notice of this point (if it was to be taken at all), either in correspondence or at one of the many case management hearings which took place, at a time well before the significant costs of dealing with these issues had already been incurred on both sides.

25. I do not think it likely that Mr McGann’s legal team were alive to this point from an early stage, and deliberately held back from taking it in the hope of procedural advantage. On the contrary, it seems to me to be probable that, prior to the instruction of Mr Lawrence and Ms Roberts, they shared the ignorance of CPR 32.19 displayed by Mr Bisping’s legal team. Nevertheless, for Mr McGann’s legal team to take the point at this very belated stage, in the hope of obtaining a “windfall” advantage in the litigation, is in my judgment contrary to the spirit in which commercial litigation should be conducted.

26. No useful purpose would have been served by requiring Mr Bisping to serve notice under CPR 32.19 after the start of the trial. It was, however, desirable (for the sake of good order) for Mr Bisping to identify precisely those documents (other than the Management Agreement) whose authenticity was the subject of challenge. For these reasons, when I ruled on this issue, I exercised of my own motion the very wide powers conferred by CPR 3.1(2)(m) to make an “order for the purpose of managing the case or furthering the overriding objective”.. and by CPR 3.10 “where there has been an error of procedure such as a failure to comply with a rule .. [to] make an order to remedy the error”, by dispensing with service of a notice under CPR 32.19 in relation to the challenged documents identified in the list which I then required Mr Bisping’s legal team to produce.

The August 2014 Order

27. I now turn to consider the effect of the August 2014 Order which, according to Mr McGann’s legal team, precludes Mr Bisping from relying upon any witness evidence of fact at trial.

28. It is right that I should begin that consideration by noting that there can be no doubt that the performance by Mr Bisping of his disclosure obligations in this case has repeatedly been found to be inadequate.

29. The parties were ordered to give standard disclosure by District Judge Conway in his Order dated 7 October 2013. Mr Bisping served his List of Documents on 14 November 2013. Mr McGann’s solicitors drew attention in correspondence to a number of deficiencies in that list. When Mr Bisping failed to remedy those deficiencies voluntarily, Mr McGann’s solicitors issued on 10 April 2014 an application for specific disclosure. That application came on for hearing on 28 August 2014 before HH Judge Mackie QC, together with an application by Mr Bisping for directions and for relief from sanctions in relation to his failure to file witness statements by the date specified in HH Judge Halbert’s Order dated 25 November 2013.

30. Judge Mackie made the August 2014 Order in response to those applications. In the August 2014 Order, he gave a number of directions, including one requiring Mr Bisping to give specific disclosure of 14 categories of document. He granted Mr Bisping’s application for relief from sanctions, but only subject to certain conditions, including the condition that:

(b) The Defendant must fully comply with all further orders of the Court hearing, including this Order. In the event of his failing to comply with any paragraph of this Order or any further order of the Court, he may make an application for relief but such application shall be made to HH Judge Mackie QC ..

In the event of the Defendant failing to comply with any of these conditions (and subject to any order for relief pursuant to an application under sub- paragraph (b) above), the Defendant shall not be entitled to rely on any witness evidence of fact at trial.

31. Thereafter, Mr Bisping provided a small number of documents, purportedly in compliance with the August 2014 Order, and sought an extension of time to comply with certain other elements of that order. In response, Mr McGann’s solicitors issued further applications for disclosure. These resulted in another order made by HH Judge Mackie QC on 16 October 2014. Judge Mackie found that Mr Bisping had not complied with the August 2014 Order, but permitted Mr Bisping an extension of time and ordered him to provide witness statements, one made by himself, and one made by his accountant, Mr Farnsworth. Those witness statements were to list the disclosable documents which were no longer in Mr Bisping’s control, and were to explain what had become of those documents, and to set out the extent of the searches that have been made to locate those documents.

32. Mr Bisping served witness statements on 6 November 2014, purportedly in compliance with the order made on 16 October 2014. However, Mr McGann’s solicitors remained dissatisfied with Mr Bisping’s response and, on 19 December 2014, issued an application for an order that Mr Bisping should not be entitled to rely upon any witness statements at trial alternatively that his Amended Defence should be struck out. On 30 January 2015 HH Judge Mackie QC made an Order on that application. In it, he granted Mr Bisping a yet further extension of time (to 23 February 2015) to provide the specific disclosure required by the August 2014 order, but ordered Mr Bisping the file a further witness statement and to provide further documents.

33. In purported compliance with that Order, Mr Bisping provided a further witness statement and disclosed a further 1500-odd documents. That resulted in Mr McGann’s solicitors making the application to adjourn the trial which resulted in the order of HH Judge Mackie QC referred to in paragraph 7 above, in which Judge Mackie commented on the “deplorable failure by [Mr Bisping] regarding disclosure”.

34. Mr Bisping served a further witness statement from Mr Farnsworth in April 2015, together with a further file of documents. Again, Mr McGann’s solicitors expressed the view in correspondence that Mr Bisping’s disclosure remained inadequate. On 30 July 2015, they applied to strike out Mr Bisping’s re-Amended Defence on the grounds of his continuing non-compliance with his disclosure obligations. That application was accompanied by a Schedule of Deficiencies, identifying where Mr Bisping had failed to give disclosure and remained in breach of previous Orders.

35. Mr Bisping provided 400-odd pages of new and duplicate documents and a response to the Schedule of Deficiencies purporting to explain why he was not able to comply fully with the various orders that have been made against him. Mr McGann’s application came before HH Judge Waksman QC on 2 September 2015. Judge Waksman made a number of orders against Mr Bisping for specific disclosure and for the filing of further witness statements. These were expressed as final orders, accompanied by the sanction that Mr Bisping’s Re-Amended Defence and Counterclaim should be struck out in the event of failure to comply.

36. In purported compliance, Mr Bisping provided further documents and further witness statements. However, yet again these did not satisfy Mr McGann’s solicitors. On 24 September 2015 they issued an application for a declaration that Mr Bisping’s Re-Amended Defence and Counterclaim stood struck out as a result of his failure to comply with Judge Waksman’s Order of 2 September 2015. In response, on 1 October 2015 Mr Bisping served an application for relief from sanctions.

37. Those applications came before HH Judge Waksman QC late on Thursday, 1 October 2015, only four days before the date listed for trial. Judge Waksman gave a short extempore judgment, refusing Mr McGann’s application on the basis that there had been substantial compliance with (or at least “no material breach” of) his Order of 2 September 2015, save in one minor respect (which he referred to as the “Drop Box emails”) in relation to which he made a further order requiring provision of a further witness statement by 4 pm the following day, in readiness for trial to begin on the following Monday.

38. Ms Roberts, who argued this aspect of the case on behalf of Mr McGann, submitted that the effect of Mr Bisping’s repeated failure to comply with the various Orders recited above was, by the express terms of the August 2014 Order, to prevent him from relying upon any witness evidence of fact at trial. That was not a matter adjudicated upon by Judge Waksman on 1 October 2015, because that hearing was concerned only with the issue of whether Mr Bisping’s Re-Amended Defence and Counterclaim stood struck out.

39. Mr Buttimore’s response, for Mr Bisping, was that Judge Waksman had already determined that there had, at least by 1 October 2015, been substantial compliance with all relevant Orders that had been made, and that it was not possible for Mr McGann now to seek to re-open that finding before me. The various Orders made by Judge Mackie and Judge Waksman after the August 2014 Order had impliedly superseded the sanctions provided in the August 2014 Order: and the parties and the court had proceeded on that basis. This was shown, inter alia, by the fact that Mr McGann’s 24 September 2015 applications sought only a declaration that the Re-Amended Defence and Counterclaim stood struck out, and made no reference to Mr Bisping being debarred from relying upon witness evidence. Had Mr McGann wished to rely upon this point, he should have raised them, and his attempt to do so now is primâ facie an abuse. It was also shown by the fact that Mr Graeme McPherson QC’s 53-page Written Opening Submission for the trial listed to begin on 5 October 2015 assumed that there would be factual evidence called behalf of Mr Bisping. In any event, it would be just to grant Mr Bisping relief from sanctions, for the reasons set out in the fourth witness statement of Mr Symeou.

40. As with the submissions made by Mr Lawrence in relation to CPR 32.19, the logic of Ms Roberts’ submissions cannot be faulted. As the Court of Appeal explained in Marcan Shipping (London) Ltd v Kefalas, the sanction prescribed in an Order takes effect automatically as a result of a failure to comply with its terms. Unless the party in default has applied for a relief, or the court itself decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not require a judicial determination.

41. However, in my judgment, Mr Buttimore again has the better of the argument on this aspect of the case. Judge Waksman’s 2 September 2015 Order implicitly dealt with all the consequences of Mr Bisping’s earlier non-compliance, including those specified in the August 2014 Order: and his decision on 1 October 2015 that there had been substantial compliance with his 2 September 2015 Order is, in my judgment, implicitly determinative of the present application.

42. I think that Mr Buttimore probably put his case too high in saying that this further application is strictly an abuse on Henderson v Henderson principles. However, the issue of whether Mr Bisping was entitled to call any evidence of fact was (for all the reasons explained in paragraphs 23 and 24 above) plainly a matter which, in the interests of effective case management, ought to have been raised at the hearing on 1 October 2015 (if not at the hearing on 2 September 2015, or even earlier), and which should not have been left to be dealt with at the outset of the trial before me. It would be contrary to the Overriding Objective to permit such a fundamental objection to the basis upon which both parties have prepared for trial to be raised so belatedly, in the absence of any evidence giving a reasonable explanation as to why the point was not raised earlier. For that further reason, also, it seems to me that this application by Mr McGann must fail.

43. Had it been necessary, I would have exercised the court’s powers (inter alia, under CPR 3.1(2)(m) and/or CPR 3.9 and/or CPR 3.10) to produce that result, because that is what the overall justice of the case requires.

Mr McGann’s own disclosure

44. As I have said, Mr Bisping’s approach to his disclosure obligations was highly unsatisfactory: but there was also a strikingly unsatisfactory aspect to Mr McGann’s disclosure.

45. Mr McGann served his list of documents on 15 November 2013. In that list, Mr McGann’s solicitors listed a series of letters, one for each bout, concerning camp expenses. Each of these bore a date shortly after the bout to which it related. The copy of each of these letters produced on inspection contained wording indicating that it attached an invoice for training camp expenses in relation to the particular fight concerned. Following on behind each invoice were copies of documents which appeared to be further attachments to the letter.

46. The series of documents disclosed in relation to the Hayes and Schafer fights were broadly similar. For example in relation to the Hayes fight in June 2006:

46.1 The letter was dated 1 July 2006 and stated “please find attached invoice of camp expenses including flights, hotels, per diems etc. Also included UK camp expenses. As agreed expense payment will lie on file and will be settled at a later date, when you are more financially comfortable”.

46.2 Immediately behind that letter was a “Training Camp Expense Invoice”, also dated 1 July 2006 with columns for “Flights US”, “Hotels”, “P/D”, “Taxi”, “Flights UK”, and “Timesheets”. The amounts in these columns totalled £32,397.

46.3 Immediately behind that was a page ruled in columns with numbered rows, as if from a ledger or account book, which had been filled in in manuscript. This was headed “Client: Michael Bisping”, “Subject: UFC TUF Finale”, “Prepared by A McGann Date April”, “Reviewed by [blank space] Date: July 2006”. This page provided a breakdown of the figures in the Invoice, including a list of “Time Sheet Totals”.

46.4 Immediately behind that were 4 printed “Employee TimeSheet” forms, again filled in in manuscript. The printed columns, which were headed “Date”, “Start Time”, “End Time”, “Regular Hours”, “Overtime Hours” and “Total Hours”, had all been completed, apparently week by week, in manuscript. At the bottom was a printed certificate that “these hours are a true and accurate record of all time worked during the pay period”, followed by a “Supervisor Signature” from Mr McGann, “Date: 30th June 06”.

46.5 The final document was an undated receipt signed by Francisco Netto.

47. The impression given by the way that these copy documents were produced on inspection, and by the way that they had been filled in, was that they were all contemporary documents, produced at the time and attached to the letters which they followed. This impression was strongly reinforced by the fact that Mr McGann’s signatures to the various “Employee TimeSheet” documents were dated in manuscript “30th June 06” (in relation to the Hayes fight) and “4/1/07” (in relation to the Schafer fight).

48. However, closer inspection revealed that that impression was misleading. Each of the Employee TimeSheet documents bore in the bottom right-hand corner in small print the words “©2011 Redcort Software, Inc, http://www.redcort.com”, indicating that it had been printed using an online software package. This package (as investigations by Mr Bisping’s solicitors in January 2014 discovered) was not available prior to June 2011, and so could not have been used to produce a document that was filled in or signed in 2006 or 2007, as these time sheets purported to have been.

49. Mr McGann’s solicitors first provided an explanation for this discrepancy in their letter dated 27 February 2014. This was supplemented by Mr McGann’s evidence in his witness statement dated 25 March 2014:

I invoiced [Mr Bisping] for camp expenses after each fight. .. Records of all training camp expenses were kept in various files and ledgers in the office at the Wolfslair gym. I used these records as a reference to prepare the invoices I sent or hand-delivered to [Mr Bisping].

In May 2011, when the first serious problems in my relationship with [Mr Bisping] began to appear I realised for the first time that he might try to get out of repaying me for all the camp expenses over the years and therefore I would need to have clear and ordered documentation showing what expenses had been incurred (especially in terms of spar and coaching fees) so I could show [Mr Bisping] this and not give him an excuse to duck out of paying. The various ledgers and other pieces of paper I had kept over the years were not ideal for this, so when I had time I took them all and where necessary I rationalised them into new orderly timesheets showing the sessions that the coaches and sparring partners had provided at the time. The plan was to sit down and go through them all with [Mr Bisping] but once he cut off all contact with me after the Miller fight in December 2011 I never had the chance to do that. However, the rationalised records I produced were disclosed as part of this litigation.

Around this time I sent the rationalised records I had created along with copies of all the letters and invoices I had sent Michael over the years to my accountant, because I intended at some point to go through them all with him as well. Most of my office records were later destroyed in a fire at the Wolfslair gym in November 2011 .. Later in January 2013 I also asked some of the coaches and sparring partners who were involved in Michael’s training camps to provide written confirmation of the amount I paid them on Michael’s behalf to help show the expenses that I had incurred.

At the time of preparing my disclosure list in respect of this litigation, my solicitors and I have not discussed in detail the dates on which each individual document evidencing camp expenses incurred by me on [Mr Bisping’s] behalf was produced. As a result, we disclosed documents to [Mr Bisping] (and his solicitors) grouped together on the basis of the camp they related to using the date of the first invoice sent as a reference.

When my solicitors and I revisited this evidence in the course of producing this statement, we realise that the manner in which we disclosed the documents may inadvertently have created some confusion around the date of creation of the documents, specifically the internal rationalised records that I produced in mid-2011 but were never sent to [Mr Bisping]. My solicitors wrote to [Mr Bisping’s] solicitors on 27 February 2014 to explain this.

50. The letters and invoices in relation to subsequent bouts followed different formats. The invoices were typed (or computer printed) rather than handwritten. There are no more “Employee TimeSheet” reports produced using the Redcort software. Instead, for the Sinosic fight in May 2007, a series of “Training Camp Timesheet Report” forms followed a “Training Camp Expense Report”. Each of these documents consists of a printed sheet with spaces to write in “Event”, “Date” and “Fighter” across the top. Below that is a printed grid, 4 columns across and 27 rows deep, which looks as if it has been produced from a computer spreadsheet. The sheets have then been written up in manuscript. For the Hamill fight in September 2007, there is simply a typed “Training Camp Expense Sheet” rather than an invoice. Though this refers to “Time sheet totals”, no timesheets are attached. For the Evans fight in December 2007 the typed “Invoice for Camp Expenses” was followed by a “Timesheet Report” typed in block capitals. For the McCarthy fight in April 2008 and the Day fight in June 2008, the invoices, again typed, were in tabular form, with no reference to timesheets. All subsequent invoices were typed, and none referred to timesheets. Just as the layout of the various documents changed, so too did the format of the Wolfslair logo at the top. Various receipts and other documents followed certain of the invoices.

51. In his oral evidence, Mr McGann explained that he ran a number of businesses from his office at the gym. In the early days, he kept a record of expenses in a notebook, and kept a record of his commissions in the same book. However, when things got going there was a lot more to be recorded, and so he kept “ledgers and whatever” - maybe 30 ledgers, covering several fighters. It became quite a big office, with filing cabinets, computers and photocopiers. The office was run by his sister and he mainly just tidied up. He confirmed that the information relating to Mr Bisping’s camp expenses was “in ledgers” and “came off a ledger sheet or a clipboard” when, in mid-2011, he copied it into the documents which were subsequently produced in this litigation. He said that, back in 2007, he must have had timesheets, but must have lost them. When asked by Mr Buttimore why he had signed and put the dates of 2006 and 2007 on documents which were not produced until 2011 he replied that “that was what the ledger said” and that that was the “relevant” date. He said that he could not remember when he created the various supporting documents, but “some of them were photocopies”.

52. Mr Bisping challenged the veracity of Mr McGann’s explanation in relation to the Redcort documents. Mr Buttimore, on Mr Bisping’s behalf, pointed out that Mr McGann’s explanation that he wrote up all of these supporting documents from his ledgers and other records in mid-2011 does not explain why the supporting documents after the first 2 fights are not in the same format. If they were all created together as part of a single exercise, why are they not all on the same forms and in the same format? Mr Buttimore submitted that the production of these misleading documents is strong evidence in support of Mr Bisping’s case that all the letters and invoices now relied upon by Mr McGann have been produced specifically for the purposes of this litigation, and were not produced or handed to Mr Bisping at the time.

53. I shall return to this issue, and to the significance of these documents, later in this judgment.

The witness statement of Paul Davies

54. I must also mention four other matters which occurred in the course of the trial.

55. First, I allowed Mr McGann’s application to serve out of time a witness statement given by Mr Paul Davies. That application was supported by the Second Witness Statement of Nic Couchman, and was opposed, on behalf of Mr Bisping, by the Fifth Witness Statement of Andrew Symeou. Mr Davies was the agent and coach who represented Mr Bisping until, in 2005, Mr Bisping began to train at the Wolfslair gym.

56. I accepted the evidence of Mr Couchman that it had not been reasonably possible to obtain a witness statement from Mr Davies at an earlier stage, because Mr Davies had, because of ill-health, refuse to provide one. However, contact between Mr McGann and Mr Davies in early April 2017 had, unexpectedly, resulted in Mr Davies agreeing to provide a statement. Given that Mr Davies was unwilling on health grounds to give evidence voluntarily, it was reasonable of those advising Mr McGann not to serve a witness summary from Mr Davies at any earlier stage, as they did not then expect to be able to call him as a witness.

57. In my judgment, Mr Davies was able to give relevant evidence, and refusing to admit his statement would cause injustice to Mr McGann which would be substantially greater than any prejudice or injustice caused to Mr Bisping by admitting it. Mr Buttimore did not suggest that it would be difficult for him to take instructions on the contents of Mr Davies’ statement, and to cross-examine on it. Nor did he suggest that there was any further witness whom he would wish to call as a result of the admission of Mr Davies evidence. Taking all the circumstances of the case into account, it therefore seemed to me that the justice of the case favoured admitting Mr Davies’ statement, and hearing his evidence.

Re-Amendment of the Particulars of Claim

58. It was not clear to me, from Mr Lawrence’s opening submissions, quite how he put his case in relation to Mr McGann’s claim for commission on earnings paid to Mr Bisping’s companies, rather than to Mr Bisping himself. As a result of questioning from the bench, Mr Lawrence applied in the middle of the trial to Re-Amend his Particulars of Claim, to make that aspect of Mr McGann’s claim clear.

59. Mr Lawrence’s original draft alleged a small number of new facts, to which Mr Buttimore objected. Having regard to the stage at which the application was made, I indicated that I was unlikely to give permission for any amendment raising new factual issues. Eventually, Mr Lawrence produced a version of his proposed amendments which did not introduce any significant new factual issues.

60. Even then, Mr Buttimore maintained his objection on behalf of Mr Bisping to this late amendment, relying upon the principles discussed in cases such as Swain-Mason v Mills & Reeve LLP, Su-Ling v Goldman Sachs International, and Re Ralls Builders (No 2).

61. I nevertheless permitted the amendment, on the basis that it was largely clarificatory, would therefore assist the court in dealing with the case justly, and would cause no material prejudice to Mr Bisping. I gave Mr Bisping permission to make consequential amendments to his Defence.

Mr McGann discusses his evidence

62. Mr McGann began his evidence on the afternoon of Wednesday, 26 April 2017 (the first day of the trial) and was still being cross-examined when the court rose for the weekend at the end of Thursday, 27 April 2017. I gave Mr McGann the usual direction that, while he was giving evidence, he should not discuss the case (or his evidence) with anyone. I specifically instructed him that he should not discuss the case with any members of his legal team or with his wife, other family members or any of his friends.

63. Despite this instruction, Mr McGann did discuss the case and his evidence over the weekend. This was discovered (as I was later informed) in the following circumstances. On Monday evening (1 May 2017), Mr Lee Gwynn, Mr McGann’s business partner, sent an email to Mr McGann’s counsel and solicitors, copied to Mr McGann himself, to which was attached a document setting out a number of matters that Mr McGann had “recalled” over the weekend about issues that have been dealt with in earlier cross-examination, and about corrections or clarifications that he wished to make to his previous answers. Mr Lawrence read that email in the train from Liverpool on his way to court.

64. This set in motion a train of events which resulted in the waste of nearly a complete court day. Mr Lawrence first had to take instructions from Mr McGann. He then (as he told me) had to check with the Bar Council’s Ethical Enquiries Service his provisional view that it would not be proper for him to continue without informing the court of what had happened. He then had to obtain Mr McGann’s consent to tell the court. That having been done, Mr Lawrence then sought to put before the court (on Mr McGann’s instructions) only a redacted version of the email which he had received. Only when, following an objection by Mr Buttimore, I ruled that an un-redacted copy should be provided were the full terms of Mr Gwynn’s email disclosed.

65. Mr McGann gave an explanation for his conduct later in his evidence. According to Mr McGann he had become incensed by certain aspects of the cross-examination, particularly in relation to his conduct in relation to the submission of a misleading return to the Australian tax authorities on behalf of Mr Bisping (see paragraphs 103 to 108 below). He had (in his words) been “ranting” about it to his partner, Kristin, over the weekend. Kristin had then, by chance encountered Mr Gwynn in the street (the families living near to each other), and had passed on to Mr Gwynn what Mr McGann had said. Mr Gwynn had then passed the information on in the email to Mr McGann’s legal team. According to Mr McGann, he had not discussed his evidence directly with Mr Gwynn.

66. Mr Gwynn made a short supplemental witness statement dated 4 May 2017 which broadly confirmed Mr McGann’s evidence about this aspect of the case. He declined to answer questions in cross examination about these events, saying that he had dealt with them in his witness statement and claiming the privilege against self-incrimination.

67. Mr Buttimore challenged the accuracy of the accounts of these events given by Mr McGann and Mr Gwynn, submitting that the contents of Mr Gwynn’s 1 May 2017 email clearly showed that Mr McGann and Mr Gwynn had conferred directly about a number of aspects of Mr McGann’s evidence. Mr Buttimore did not make any applications or seek any specific relief on the basis of these events. Instead, he simply submitted that these matters reflected poorly upon the credibility of both Mr McGann and Mr Gwynn. That seemed to me to be a proportionate and practical approach.

68. Again, I shall return to this issue later in this judgment.

Scuffles outside court

69. Finally I should mention that, towards the end of the trial, it was reported to me by the security team at the Rolls Building that there had been a scuffle between Mr McGann and Mr Bisping in the waiting area just outside the courtroom. When I mentioned this to the parties, they did not deny that there had been an “incident”. I cautioned them that such behaviour in the precincts of the court could not be tolerated, and received and accepted assurances that there would be no repetition. I record this incident only because it indicates the degree of ill-feeling between Mr McGann and Mr Bisping, which was also evident in the way that they conducted themselves towards each other within the courtroom, and in the way that they gave their evidence.

The background facts

Introduction

70. This is a case in which both sides accuse the other, not just of being wrong, but of lying and deliberately fabricating evidence. In forming my views as to which parts of the evidence to accept, and which to reject, I have of course paid close attention to the demeanour of the witnesses in the witness box as they gave their evidence to me. I have borne in mind the fact that the events with which this trial is concerned began some 12 years ago, and that it is inevitable that memories have faded and been made less reliable by the passage of years[14]. I have been careful to test the evidence of each of the witnesses against all the other materials available to me, bearing in mind the helpful observations of Robert Goff LJ (as he then was) in The Ocean Frost[15]:

.. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth ..

71. The documentary record often provides a tribunal of fact with the most reliable evidence of what actually happened at the time. Unfortunately, Mr McGann and Mr Bisping did not record much of what happened in writing. Many documents are said to have been destroyed in the fire at Wolfslair: and the authenticity of some of the most important documents is itself in question. The documentary record on which I can safely rely in this case is therefore comparatively limited. In reaching my conclusions, I must therefore pay particularly careful attention not only to those documents whose authenticity is not challenged, but also to the small number of facts that can be objectively ascertained, to the witnesses’ likely motives, and to the overall probabilities.

72. Before setting out my conclusions of fact, it is therefore necessary for me to explain in some detail the background facts of this dispute and to set out the contentions of the parties in relation to the various disputed points, in order to put my reasoning in relation to the various issues which I have to decide in its full context. I do so in approximately chronological order.

2005 - Mr Bisping joins Wolfslair

73. Mixed martial arts (“MMA”) is a full-contact combat sport. It allows striking and grappling, both standing and on the ground, using techniques from other combat sports and martial arts. Among the disciplines in which MMA fighters have to be proficient are Brazilian jiu-jitsu (which focuses on grappling and ground fighting), boxing, Thai boxing (Muay Thai, which focuses on stand-up striking and various clinching techniques) and wrestling. Professional MMA fighters have to have a high level of proficiency in all four of these disciplines, and need to be very fit and resilient.

74. Professional MMA worldwide is dominated by Zuffa, a corporation based in the state of Nevada in the USA. Zuffa trades under the name of the Ultimate Fighting Championship (“UFC”), and is the largest promoter of MMA sporting events in the world. Since 2005, it has also been responsible for the production of TUF. At the times that are relevant to this action, TUF (which had its 24th season in 2016) generally featured 16 athletes, in designated weight classes. These athletes would be shown living and training together, and eventually competing against one another to win the title of “The Ultimate Fighter”. Established UFC stars were often retained by Zuffa to appear in subsequent series in the role of coach to the competitors.

75. MMA took longer to become popular in the UK. However, it began to gain ground at the start of the 21st century. Mr McGann became a fan of the sport at about that time. In about 2004 Mr McGann and his friend, Lee Gwynn (“Mr Gwynn”) decided to build their own MMA gym in Widnes in Cheshire, and to bring in some Brazilian coaches as trainers. They named the gym “Wolfslair” (though Mr McGann assured me that he intended no reference to Adolf Hitler's similarly-named headquarters in World War II). Wolfslair was the first gym in the UK to have a full-size cage, and to have in-house Brazilian coaches (including Francisco Neto, as head coach). Within a couple of years, Wolfslair was already attracting professional MMA fighters.

76. Mr Bisping won his first professional MMA fight in April 2004. By 2005, he was already beginning to make a name for himself, and had won “Cage Rage” and “Cage Warriors” light heavyweight titles. Mr Bisping’s manager at the time was Paul Lloyd Davies. Mr Davies, unfortunately, was away in Thailand in April 2005, at the time when Mr Bisping was preparing for an important fight. Mr Bisping, who was then living in Clitheroe, searched online to find sparring partners, and came across an advertisement from Wolfslair seeking sparring partners. Mr Bisping applied, was accepted by Mr McGann, and began to train there, sparring with Antonio Silva, Henrique Nogueira, and other Brazilian professional fighters staying at the gym.

77. Within a short time, Mr Bisping had decided to leave the management of Mr Davies and to base himself at Wolfslair, which was comparatively near to his home. There is a dispute about precisely when, why and how this happened, and a dispute about when and with what person or entity Mr Bisping signed his new contract. Mr Bisping says that he signed a contract with “Wolfslair” (rather than Mr McGann) in about May 2005. Mr McGann claims (but Mr Bisping denies) that Mr Bisping signed the Management Agreement in July 2005. It is however, common ground that Mr Bisping did in fact sign a new contract sometime in the middle of 2005, under which he ceased to be managed by Mr Davies. It is also common ground that, in practice, Mr Bisping’s management as a professional MMA fighter was thereafter in fact largely in the hands of Mr McGann. It is also common ground that the agreed rate of commission payable by Mr Bisping was 20%.

2005-2007 - The First PAR Agreement

78. Later in 2005, Mr Bisping auditioned in London for a role in season 3 of TUF. He was successful and, as a result entered into a Promotional and Ancillary Rights Agreement dated 6 January 2006 (“the First PAR Agreement”) with Zuffa. This was expressed to last for an initial period of one year from the date of the first fight involving Mr Bisping promoted by Zuffa following the conclusion of season 3 of TUF, but gave Zuffa options for a further 2 years thereafter. Mr Bisping was required to undertake a minimum number of fights to be promoted by UFC, and was to be entitled to a “Fighter’s Purse” in relation to each of them. The amounts payable depended on whether Mr Bisping won in the final event of season 3. If he won the final, his purse was to rise from USD 12,000 in the initial period, to USD 16,000 in the first option period, and to USD 22,000 in the second option period. The amounts payable if he lost in the final were considerably less, rising only to USD 11,000 in the second option period. In addition, Mr Bisping was to be entitled to a “Win Bonus” of a similar amount for every fight that he won. For the final of the third season itself, the “Fighters Purse” was USD 5,000, with a “Win Bonus” of a similar amount.

79. The First PAR Agreement contemplated that each fight would be the subject of an individual Bout Agreement. Mr Bisping duly participated in season 3 of TUF, and won the light heavyweight final against Josh Haynes in a bout in Las Vegas which was screened on 24 June 2006. That bout was covered by a Bout Agreement also entered into in June 2006. The Term Sheet to that Bout Agreement recorded Mr Bisping’s entitlement to various incidentals including an hotel or motel room, two round-trip economy class air tickets, and either USD 50 per day or meal vouchers for himself and an “affiliate”.

80. The Bout Agreement for the Haynes fight specified a “Training Commencement Date” of 20 June 2006. It is nevertheless Mr McGann’s case that he organised a five-week training camp in Las Vegas prior to this fight, in order to give Mr Bisping the best chance of victory. Mr McGann asserts that he personally paid expenses for this training camp of £32,379 on Mr Bisping’s behalf, which he says have never been repaid. Again, according to Mr McGann, Mr McGann invoiced Mr Bisping for these expenses on 1 July 2006. In relation to those expenses, it is Mr McGann’s case (as set out in the accompanying letter dated 1 July 2006) that, at that early stage of Mr Bisping’s career, “As agreed expense payment will lie on file and will be settled at a later date, when you are more financially comfortable”. In other words, it was agreed that Mr McGann would initially pay and fund the cost of these training camps, but that Mr Bisping would repay Mr McGann at some unspecified point in the future (to be agreed), when Mr Bisping’s earnings were sufficient.

81. Mr Bisping’s case is that there was no such agreement. According to Mr Bisping, there was no question of his paying any camp expenses for the Haynes fight, and that the figures claimed are in any event absurdly high, given the small amounts that he was likely to receive from that bout. Mr Bisping also asserts that he did not receive any invoice from Mr McGann for these expenses, and that the letter, invoice, and other documents now produced by Mr McCann in support of his claim are recent fabrications. According to Mr McGann, Mr Bisping earned USD 25,000 from the Haynes fight. Mr McGann accepts that Mr Bisping paid in full the 20% commission due on his “Fighter’s Purse”, “Win Bonus” and sponsorship income in relation to this fight.

82. Mr Bisping took part in a number of further bouts under the First PAR Agreement. The detailed particulars of each of these fights were contained in specific Bout Agreements between UFC and Mr Bisping:

82.1 On 30 December 2006, Mr Bisping fought Eric Schafer in Las Vegas in “UFC 66”. Mr McGann asserts that he organised a training camp in California run by Kazeka Muniz, and sent an invoice for £12,490 to Mr Bisping on 7 January 2007 in relation to camp expenses. Mr Bisping denies receiving the invoice, and disputes that the expenses claimed were ever incurred, asserting (inter alia) that he trained in Las Vegas, not in California. Mr Bisping won the fight and, according to Mr McGann, was paid an Event Bonus of USD 101,000 and Sponsorship of USD 15,000 in addition to his “Purse Fee” and “Win Bonus”. Commission at 20% on the total of USD 140,000 would have been USD 28,000. Mr Bisping paid Mr McGann USD 22,000 shortly after the fight, leaving a balance of USD 6,000 which Mr McGann now claims. This sum forms part of Mr McGann’s claim for commission on sums withheld (at least initially) by overseas tax authorities from payments made to Mr Bisping.

82.2 On 21 April 2007, Mr Bisping fought Elvis Sinosic in Manchester. Mr McGann asserts that, although the training for this fight took place at Wolfslair, using Wolfslair’s in-house Brazilian coaches, he incurred and paid expenses of £12,180 on behalf of Mr Bisping, for which he invoiced Mr Bisping on 1 May 2007. Mr Bisping denies receiving the invoice, and disputes the incurring of the expenses. According to Mr McGann, Mr Bisping received USD 169,000 from this fight. Mr McGann accepts that all commission in relation to this fight was duly paid.

82.3 On 8 September 2007 Mr Bisping fought Matt Hamill in London. Mr McGann’s case is that Mr Bisping was invited to attend the training camp of Quinton “Rampage” Jackson (another MMA fighter managed by Mr McGann) in Big Bear, California, and in return agreed to provide and pay for training facilities when Quinton Jackson came to the UK to train. According to Mr McGann, he paid expenses of £17,300 on behalf of Mr Bisping in relation to Quinton Jackson’s training facilities, and invoiced those expenses to Mr Bisping on 20 September 2007.

82.4 This is all disputed by Mr Bisping, whose evidence on this point is supported by the evidence of Juanito Ibarra, who used to be Quinton Jackson’s manager. Mr Ibarra confirmed that Mr Bisping had trained with Mr Jackson in California, and that Mr Jackson had then travelled to England, had trained at Wolfslair, and had been accommodated by Mr McGann. No payment passed in either direction. However, according to Mr Ibarra, “At no point was it discussed or agreed that [Mr Bisping] would be responsible for the expense of our accommodation. At no point was it agreed or discussed that [Mr Bisping] would be responsible for any expenses of ‘Team Rampage’ during our stay in England”. According to Mr McGann, Mr Bisping earned USD 149,000 from this fight. Mr McGann accepts that all relevant commission in relation to this fight was duly paid.

82.5 On 17 November 2007, Mr Bisping fought Rashad Evans in Newark, New Jersey in the USA. Mr McGann’s case is that the training camp for this fight took place at the Wolfslair and at a temporary facility created by UFC in Newark. Mr McGann claims to have paid expenses of £11,200 on behalf of Mr Bisping, and to have invoiced those sums to Mr Bisping on 1 December 2007. All of this is disputed by Mr Bisping. Mr McGann’s case is that Mr Bisping’s total earnings from this fight were USD 212,000, on which commission would have been USD 40,000, but Mr Bisping paid only USD 32,400. The balance of USD 7,600 forms part of Mr McGann’s claim for commission on sums withheld (at least initially) by overseas tax authorities from payments made to Mr Bisping.

End 2007 – The meeting in the Wellington Arms

83. On Mr McGann’s case, Mr Bisping had by the end of 2007 accumulated a debt to Mr McGann in relation to training camp expenses of some £85,549, a sum slightly greater than the amount that Mr McGann had earned by way of commission on Mr Bisping’s earnings over the same period. According to Mr McGann, he regarded this as “a significant debt”, and he told Mr Bisping that he would have to look at reducing it soon. Again, according to Mr McGann, Mr Bisping fobbed him off, saying that he still couldn’t afford to pay back anything yet, but would do so soon. On Mr McGann’s case, Mr Bisping had by then earned a total of about USD 695,000 gross, USD 556,000 net of commission, over the previous two years. At the then current exchange rates, that would have been roughly equivalent to about £330,000. Mr McGann would, of course, have had to pay expenses and then tax from that sum.

84. Mr Bisping’s account of what happened at the end of 2007 is very different. According to him, he received a telephone call from Mr McGann, in which Mr McGann told him that he wanted 20% of all the “locker room bonuses” that Mr Bisping had received. When Mr Bisping challenged Mr McGann about this, Mr McGann’s response was that “it’s in the contract”. When Mr Bisping asked to see a copy of the contract, Mr McGann asked Mr Bisping to meet him at the Wellington Arms pub (which was about halfway between Mr Bisping’s home and Mr McGann’s). Mr Bisping and his father, Jan, attended the meeting, at which Mr McGann produced the contract for another fighter, Lee Dixon, rather than Mr Bisping’s contract. When Mr Bisping and his father asked why Mr McGann was not producing Mr Bisping’s contract, Mr McGann responded that Mr Bisping’s contract was “locked in a safe at Lee Gwynn’s property in Liverpool”, and offered to drive to collect it, if that was what Mr Bisping wanted.

85. Mr Bisping’s case is that, after a discussion, he reluctantly agreed to pay commission on all his bonuses to date, and wrote a cheque for around USD 70,000. However, he accepts that he cannot provide any documentary corroboration to show that he paid that particular amount. According to Mr Bisping, two other important things happened at that meeting. First, it was agreed that Mr Bisping’s payment “wiped the slate clean”, and that no further monies were due from Mr Bisping. Secondly, Mr Bisping and his father told Mr McGann that, when the current contract had run its course, Mr Bisping would not be staying with Wolfslair, and would not be renewing his contract on its expiry. In relation to what happened at the meeting with Mr McGann, Mr Bisping’s case is supported by the evidence of his father, Jan Bisping.

86. Mr McGann accepts that he did meet Mr Bisping and Jan Bisping at about this time. However, according to Mr McGann, Mr Gwynn was also present. Mr McGann also accepts that, at the meeting, there was a discussion about the amounts that Mr Bisping owed. However, Mr McGann denies that there was any talk of “wiping the slate clean”, or about anything to do with what was to happen at the end of the Management Agreement. It was Mr McGann’s evidence that “this meeting had no particular importance; it was one of many meetings I had with [Mr Bisping] over the years arguing over unpaid expenses and commission”.

2008 – Further Bouts

87. Following this, Mr Bisping fought two further bouts under the First PAR Agreement:

87.1 On 19 April 2008, Mr Bisping fought Charles McCarthy in Montréal, Canada. According to Mr McGann, training for this fight took place at Wolfslair, then for several weeks in California, before the team went to Montréal. Mr Bisping accepts that he trained for the fight at Tiki’s Gym in Huntingdon California with Paul Kelly and later with Dave Jackson. However, he asserts that he paid for Paul Kelly’s flight himself, and paid directly any other expenses for which he was liable. He disputes Mr McGann’s claim for expenses of £12,420 and says that he never received the invoice dated 1 May 2000 on which Mr McGann relies. According to Mr McGann, Mr Bisping earned USD 149,000 from this fight, entitling him to commission of USD 29,800. Mr McGann accepts that all commission due in relation to this fight was paid.

87.2 On 7 June 2008, Mr Bisping fought Jason Day in London. According to Mr McGann, training for this fight took place at Wolfslair, and he agreed with Mr Bisping that he would bring in Kazeka Muniz to help. Mr McGann claims to have paid expenses of £9,200 on behalf of Mr Bisping, and to have invoiced those sums to Mr Bisping on 22 June 2008. Mr Bisping disputes this. According to Mr Bisping, he paid £5,000 for the services of Mr Muniz, because he was told by Mr McGann and Mr Gwynn that he had to pay it. “This was a shock, but I paid it under duress”. This in turn is disputed by Mr McGann, who claims that he was paid nothing. According to Mr McGann, Mr Bisping was paid a total of $226,000 for this fight, and accounted to Mr McGann in full for his 20% commission. Mr Bisping also asserts that he had an argument with Mr McGann about whether Mr Gwynn should act as one of his corner men for this fight, and that Mr Gwynn subsequently called Mr Bisping to threaten him when he refused.

September 2008 - Incorporation of MBL

88. On 10 September 2008, Michael Bisping Limited (“MBL”) was incorporated. Mr Bisping and his partner (later his wife) Rebecca Sidwick were the first directors. Although the company’s constitution did not say so in so many words, the only activity that it was intended that MBL should carry out was to employ Mr Bisping, to provide his services, and to receive the income thereby produced.

October 2008 - The Second PAR Agreement

89. On 13 October 2008 MBL and Mr Bisping entered into a fresh Promotional and Ancillary Rights Agreement (“the Second PAR Agreement”) with Zuffa. Under the Second PAR Agreement, “MBL on behalf of Fighter” [ie Mr Bisping] granted to Zuffa the same promotional and ancillary rights as Mr Bisping had granted under the First PAR Agreement. The terms of the Second PAR Agreement provided that it was to be for an initial period ending on 30 December 2008, but granted Zuffa the option of a one-year extension. The provisions relating to “Compensation to Fighter” broadly followed the same format as those in the First PAR Agreement. The “Fighters Purse” for bouts during the initial period was to be USD 16,000 with a “Win Bonus” of another USD 16,000, rising in each case to USD 22,000 during the option period. Under clause 7.3 “The Fighters Purse and Win Bonus, together with the Incidentals (defined below) shall be the sole compensation due to or claimed by MBL and/or Fighter on account of this Agreement, the Rights, and Fighter’s participation in any Bout or any activity related thereto”.

90. According to Mr McGann this was a “bridging” agreement, pending the negotiation of a significantly more lucrative deal: and only one fight took place under the Second PAR Agreement. On 18 October 2008 Mr Bisping fought Chris Leben in Birmingham. According to Mr McGann, the training camp for this fight took place at Wolfslair, in relation to which he paid expenses of £7,150 which he invoiced to Mr Bisping on 1 November 2008. Mr Bisping disputes this, saying that all the training at Wolfslair was covered by his basic entitlement to use the gym, and that the only outsider was Brian Talbert, whom he paid directly. According to Mr McGann, Mr Bisping earned USD 279,000 from this fight, and paid the 20% commission due in full.

2009 - The Third PAR Agreement

91. The Third Promotional and Ancillary Rights Agreement (“the Third PAR Agreement”) was entered into on 5 June 2009. Again, this agreement was between MBL, Mr Bisping (as “Fighter”) and Zuffa, and its structure was broadly the same as its two predecessors It was stated to be for eight bouts or a period of 34 months from the first bout promoted under the agreement. If at the end of the term, Mr Bisping was then the UFC champion, the agreement was automatically to be extended for a further three bouts or one year. Under the Third PAR Agreement, the “Fighters Purse” for the first bout was to be USD 150,000 with a “Win Bonus” of USD 100,000. However, provided that Mr Bisping went on winning his bouts, the “Fighters Purse” would rise incrementally, so that for the eighth bout it would be USD 325,000 with a “Win Bonus” of USD 150,000. In addition, as UFC Champion, Mr Bisping was (in certain circumstances) to be entitled to a “pay per view bonus”, which could be of an even larger amount. As before, the Third PAR Agreement stated that Zuffa would provide incidentals such as transportation, lodging, meals and bout tickets (or payments in lieu), as specified in the particular Bout Agreement. This time however, these included a round-trip business-class air ticket for Mr Bisping as well as a round-trip economy-class ticket for one of his affiliates. It also provided for a Training Commencement Date, which could be up to 8 days prior to the date of the bout, to be specified in the Bout Agreement.

92. It was Mr McGann’s case that he was primarily responsible for negotiating these greatly improved terms for Mr Bisping: and, in support of his evidence, he produced an email dated 8 April 2009 from himself to Zuffa, in which he set out a bargaining position on behalf of Mr Bisping.

93. Mr McGann’s evidence was also that, having secured the Third PAR Agreement, he persuaded Mr Bisping to start paying 50% of the training camp expenses himself. However, Mr Bisping still claimed that he was unable (inter-alia because he had a large tax bill to pay) to afford to repay the expenses previously incurred by Mr McGann on his behalf, and still required Mr McGann to fund 50% of future expenses, again on terms that Mr Bisping would eventually repay Mr McGann for those expenses out of future earnings. Mr Bisping accepts that, from the time of the Henderson fight referred to below, he agreed to meet 50% of training camp expenses. However, his evidence was that this agreement was made in the context not only of the improved terms contained in the Third PAR Agreement, but also of the increased expense of having the camp for that fight in the USA.

94. On 22 March 2010 Mr Bisping signed a Ratification of the Third PAR Agreement. This stated that “I .. hereby represent, warrant and agree that I consent to the execution of the Agreement, and hereby ratify and confirm, in my capacity as an individual and as an employee of MBL, but I shall be bound by and will duly observe, perform and comply with, all of the terms, covenants and conditions of the Agreement which are relevant to the performance of the duties of my employment with MBL, and which are necessary to enable MBL to comply with its obligations under the Agreement”. The Ratification also contained extensive provisions for the assumption of risk and waiver of all claims by Mr Bisping against Zuffa.

Summer 2009 - Season 9 of TUF

95. In June and July 2009, Mr Bisping appeared as head coach of one of the teams in Season 9 of TUF. The evidence of Dana White, the President of Zuffa, was that this appearance was not negotiated through Mr McGann, but with Mr Bisping directly. Mr White confirmed that Mr Bisping did not receive any compensation for participating in this season, apart from “transportation, housing and a small per diem”. The benefit which he received was “the exposure he received from appearing on the series and the notoriety that came along with it”.

96. It was Mr White’s evidence that “as a way of thanking Michael Bisping for appearing as a coach on season nine of TUF, Zuffa purchased a Range Rover SUV for him as a gift”. An on-line news item at the time recorded that “USD 100,000 custom Range Rovers” had been given to Mr Bisping and to his fellow coach, Dan Henderson. Mr McGann’s case is that he is entitled to commission on the value of this car, because it was an “in-kind contribution” within clause 2.2 of the Management Agreement. Mr McGann claims to have invoiced Mr Bisping for this commission on 27 July 2009: and his evidence was that, when he and Mr Gwynn asked Mr Bisping if he could borrow the car for a funeral, Mr Bisping acknowledged that he was “technically entitled to 20% of the value of the car in commission anyway”. Mr Bisping denies this (although he accepts that Mr McGann did borrow the car for a funeral). His evidence was that “There was no question at the time of McGann getting commission on this and he never raised this with me”. According to Mr Bisping, the first time that Mr McGann ever sought to claim commission on this car was in his email dated 28 May 2011.

2009 – The agreement to split expenses 50/50

97. Mr Bisping lost his first bout under the Third PAR Agreement.:

97.1 On 11 July 2009 Mr Bisping fought Dan Henderson in Las Vegas. According to Mr McGann, the training camp for this fight took place at Wolfslair and at the Zuffa gym in Las Vegas. Mr Bisping specifically requested that the camp should be run by a wrestling expert, Zak Light. Mr McGann therefore arranged for Little Big Man LLC (which owed money for sponsorships) to forward USD 11,900 to Mr Light. In support of this, Mr McGann produced an email dated 24 August 2009 from a Mr Rowlands of MMA Authentics (on behalf of Little Big Man LLC), showing payments to Mr Light at Mr McGann’s request of USD 9,900 on 22 June and USD 2,000 on 8 July 2009. However, the table attached to that email also shows that the funds from which these payments were made included commission of USD 10,000 due to Mr Bisping: and Mr McGann’s evidence did not (in my judgment) satisfactorily explain why at least that part of the money paid to Mr Light belonged to Mr McGann rather than to Mr Bisping. In all, Mr McGann claimed to have paid expenses of £13,800 on behalf of Mr Bisping, and to have invoiced those expenses to him on 21 July 2009.

97.2 Mr Bisping’s evidence was that this was the first time that fight camp issues had arisen. He agreed to Mr McGann’s suggestion that expenses (“ie outside coach sparring partners from overseas, or full camp trips overseas etc”) should in future be split 50/50, but was surprised to be asked for USD 30,000 by Wolfslair for his share of the costs of this camp. That was particularly so since (according to Mr Bisping) Mr Bisping paid for all food when he was present, two of the flights were paid for by Zuffa, and everyone stayed at the Palace Station Hotel owned by Zuffa and so paid a heavily discounted rate. Again, according to Mr Bisping, no supporting documentation was ever provided. Mr McGann’s evidence was that, to the contrary, he paid for all the food and accommodation: and this was certainly not the first occasion on which issues about payment for fight camp expenses had arisen.

97.3 Mr Bisping lost this fight, so did not receive any “Win Bonus”. However, according to Mr McGann, Mr Bisping’s total earnings from this fight were USD 306,000, meaning that the commission due to Mr McGann was USD 61,200. Mr Bisping paid only USD 46,200. The remaining USD 15,000 forms part of Mr McGann’s claim for commission on monies withheld by overseas tax authorities.

September 2009 - Incorporation of Wolfslair Promotions Ltd

98. Wolfslair Promotions Ltd (“WPL”) was incorporated on 24 September 2009. Karl Gwynn was appointed as a director on 26 November 2009, and held office until November 2012. On 22 January 2013 Lee Gwynn became a director of the company.

2009 - Sponsorship monies

99. Mr McGann’s case is that Mr Bisping’s disclosure shows that in the accounting period ending 30 September 2009, Mr Bisping received further sponsorship monies from Ecko, UFC video game, Spike Person Services Appearances, 2 US Series Coaching and tax on a video game. These receipts totalled USD 44,933, and Mr McGann claims 20% of those sums amounting to USD 8,986.60 and/or an account of the sums received.

100. Mr McGann also points out that on 9 November 2009 Mr Bisping entered into a sponsorship agreement with MusclePharm Inc. This was for an initial 3-fight term, with the option to extend for a further year. Further contracts were entered into on 26 February 2011 and 23 April 2015. Mr McGann claims to be entitled to 20% of all sums received by Mr Bisping under these contracts, but asserts that - although it is not clear how much Mr Bisping has in fact received - he has paid no commission on those amounts. Again, this forms part of Mr McGann’s claim for an account.

2009-2010 – Further bouts

101. Continuing the list of bouts under the Third PAR Agreement:

101.1 On 14 November 2009, Mr Bisping fought Denis Kang in Manchester. According to Mr McGann, Mr Bisping requested Mr McGann to arrange for some wrestlers from Canada who had previously trained with his opponent to come to the training camp, which took place at Wolfslair. Mr McGann’s case is that Mr Bisping himself paid approximately 50% of the expenses directly, but that he (Mr McGann) paid £7,299 on behalf of Mr Bisping for which he rendered an invoice on 2 December 2009.

101.2 Mr Bisping’s evidence was that, on this occasion, he was for the first time given a document setting out the amount of the camp expenses: “I was given a breakdown which had fight costs totalling £14,084 .. I was not at all happy with this. I agreed to pay ½ of this (after certain deductions) on that occasion but told them from here on everything must be approved by me as they could not simply spend my money as they wished”. This account is supported by an email dated 4 December 2009 from Mr McGann to Mr Bisping to which a JPG image of a handwritten ledger sheet headed “Mike Camp” was attached. This ledger sheet has at its bottom a final figure of £14,084.

101.3 Mr Bisping’s account is disputed by Mr McGann. Mr McGann’s evidence was that the training camp was very important because of Mr Bisping’s recent loss to Dan Henderson - which meant that a win this time was imperative. According to Mr McGann, he brought in a number of other specialist sparring partners, and cleared everything with Mr Bisping as he went along. Mr Bisping (in Mr McGann’s view) has simply invented his account of saying that “from here on everything must be approved by me”. Mr Bisping, in the event, won the fight. According to Mr McGann, his total earnings were USD 346,000, meaning that the commission payable was USD 69,200, and that was paid in full.

2010 - The Agreement to split expenses 80/20

102. On 21 February 2010 Mr Bisping fought Wanderlei Silva in Sydney Australia as part of UFC 110.

102.1 According to Mr McGann, it was at about this time that he agreed with Mr Bisping that Mr Bisping would pay 80% of camp expenses, only 20% being advanced by Mr McGann. Mr McGann’s evidence as to the timing of this agreement was slightly contradictory. In his first witness statement, he initially said that “By the time we reached the Kang fight training camp in September 2009, [Mr Bisping] had agreed to pay 80% of expenses himself and I would cover the remaining 20% on the understanding I would be repaid at a later date”. However, in the subsequent passages of the witness statement which deal with individual bouts, Mr McGann says that, in relation to the Kang fight, “at this point [Mr Bisping] was paying approximately 50% of his training camp expenses directly himself”. It is only in relation to the Silva bout in February 2010 that Mr McGann says “For this fight and the next 3 fights .. [Mr Bisping] had agreed to pay 80% of his camp costs himself and I would pay 20% on his behalf on the understanding that I would be paid back”.

102.2 Mr Bisping in his evidence, accepted that “in the period 20 February 2010 to 27 February 2011 I paid 80% even though this completely went against what we had agreed when I signed with the Wolfslair .. In any event all expenses were squared as we went along. There should no[t] have been any significant outstanding costs at the termination of our relationship”.

102.3 According to Mr McGann, the training camp for this fight took place at the Wolfslair gym and then at the Elite Fighting gym in Sydney. Mr McGann sent an email dated 4 February 2010 to Mr Bisping, explaining that he had arranged for him to train at the Elite Fighting gym, to which Mr Bisping replied “Good job mate. Manager of the year!!!”. Mr McGann claims that he organised several specialist sparring partners, agreed with Mr Bisping in advance. He asserts that he paid expenses of £4,167 on behalf of Mr Bisping that he invoiced on 27 February 2010. According to Mr McGann “the letter and invoice were sent or delivered by hand to [Mr Bisping] on or around 27 February 2010”.

102.4 According to Mr McGann, Mr Bisping earned a total of USD 252,000 in respect of this fight, entitling Mr McGann to commission of USD 50,400. Of this, Mr McGann has paid only USD 44,000. leaving a balance of USD 6,400 which Mr McGann now claims. This sum forms part of Mr McGann’s claim for commission on sums withheld (at least initially) by overseas tax authorities from payments made to Mr Bisping.

103. On 20 January 2010, prior to the fight, Zuffa sent emails to all fighters participating in UFC 110 and their managers, giving information about Australian immigration and tax requirements and including a blank Schedule of Tax Deductions and Tax Rates form. This email stated that UFC/Zuffa had retained (and would pay the fees of) Michael Roseby, an accountant in Melbourne, to assist with the filing of the various documents necessary to fulfil each fighter’s tax obligations. Mr Bisping did not receive his copy until the following day, at which point Zuffa were pressing for an urgent response. Mr Bisping forwarded all this to Mr McGann by email dated 24 January 2010.

104. On 25 January 2010, Mr Bisping signed a “Representation Authority” to Mr Roseby’s firm, Roseby Rosner & Young Pty Ltd, in connection with his tax affairs in Australia and New Zealand. On about 27 January 2010 this was sent to Mr Roseby, together with the Schedule of Tax Deductions and Tax Rates form, completed in manuscript and signed by Mr Bisping. On this document, Mr Bisping claimed expenses totalling USD 52,460, including sums for the fees and expenses of spars and coaches, plus a 20% deduction from gross earnings for “Wolfslair Management” and a 30% deduction for “Trainer/Coach”, split evenly between the three disciplines of Brazilian jiu-jitsu, Muay Thai, and wrestling.

105. When he was cross-examined about this document, Mr Bisping frankly accepted that these claimed expenses were not all incurred. That admission was almost inevitable, given that the schedule of “Foreign Fight Expenses” prepared by Mr Bisping’s accountant, Mr Farnsworth, shows verified expenses for this fight of less than £12,000 in total. Mr Bisping’s explanation for this attempted deceit of the Australian tax authorities sought to put the blame for that deception squarely on Mr McGann, saying “on the way back from the gym, Mr McGann presented me with the form and said ‘sign here’ and I did .. [the form is] not my handwriting, but that is my signature. This was all written by Mr McGann”.

106. Mr McGann’s evidence about this form, in his second witness statement, was that Mr Bisping simply gave it to him to submit on his behalf. However, when Mr McGann was cross-examined about this document his first reaction was to say that “I filled a lot of forms in for [Mr Bisping], so it could be my handwriting but I do not know”. When Mr Buttimore returned to the topic after the weekend break, Mr McGann was by then positive that it was not his handwriting and said that it could be that of Mr Bisping’s wife. He accepted that he submitted the document by email and said that “I now know that there are things in it which are not true, but I did not know that at the time. I did not read it when I sent it in”.

107. On 7 March 2010, Mr McGann sent a letter by email to Mr Bisping about “tax withholdings by IRS”.

We still haven’t made any progress with your accountant concerning reclaiming the outstanding monies withheld by the American IRS ..

.. Our unclaimed 20% is becoming substantial and is a great concern .. Please make it a priority to get your accountant to make some progress.

If it helps with Brads Smuckler at the UFC, he advised that it is a simple act of claiming all your expenses back like I did for you in Australia. I would include the documents for your accountant to review ..

108. In cross-examination, Mr Buttimore put to Mr McGann that his reference in this letter to “claiming all your expenses back like I did for you in Australia” was inconsistent with his evidence that he had played no part, except that of intermediary, in the submission in January 2010 of Mr Bisping’s Schedule of Tax Deductions and Tax Rates form. Mr McGann did not accept this suggestion, and asserted that the letter simply referred to the fact that he had submitted the January 2010 document on Mr Bisping’s behalf.

2010 – Further bouts

109. Mr Bisping’s remaining bouts under the Third PAR Agreement were as follows:

109.1 On 29 May 2010 Mr Bisping fought Dan Miller in Las Vegas. According to Mr McGann, the training camp for that bout took place at the Wolflair and that the Striking Unlimited gym in Las Vegas. A number of other fighters from the Wolfslair team were also fighting, so they all trained and prepared together. Mr McGann’s case is that he paid expenses of £4,232 on behalf of Mr Bisping that were invoiced on 7 June 2010 but which were never paid back to him. According to Mr McGann, Mr Bisping’s total earnings were USD 400,000, meaning that Mr McGann’s commission was USD 80,000. Of this, Mr Bisping paid USD 61,000 some months later, leaving USD 19,000 unpaid. That sum forms part of Mr McGann’s claim for commission on sums withheld (at least initially) by overseas tax authorities.

109.2 On 16 October 2010 Mr Bisping fought Yoshihiro Akiyama in London. According to Mr McGann, the training for this fight took place at the Wolfslair, and Mr Bisping himself paid the coaching fees. Mr McGann therefore paid only £400 in respect of food and travel for the coaches on behalf of Mr Bisping, which Mr McGann says that he invoiced on 25 October 2010. According to Mr McGann, is to Bisping and a total of USD 412,000 from this fight, entitling Mr McGann to commission of USD 82,400. Mr McGann accepts that this commission was paid in full.

December 2010 - Meeting

110. Mr Bisping’s case is that, during 2010, he made a number of complaints to Mr McGann about Mr McGann’s failure to pass on sponsorship income to which Mr Bisping was entitled. This led, according to Mr Bisping, to a meeting in December 2010 between himself, Mr McGann, Lee Gwynn and a friend of theirs who they referred to as “Harry Potter”. It was Mr Bisping’s evidence that, at that meeting, agreement was reached after lengthy discussions on the amounts due from and to Mr Bisping, and Mr Bisping agreed to make (and did thereafter make) a bank transfer of £49,970 in full and final settlement of all amounts to date. Mr Bisping’s bank statement, which he produced, shows that payment being made and it is not denied by Mr McGann: though it is noteworthy that Mr Bisping’s original pleading alleged a payment of between £50,000 and £60,000. Mr Bisping’s evidence was that he remembers Mr McGann saying in a phone call something like that “don’t that feel good we are all completely square”. Mr McGann does not dispute that there was a meeting at about that time, but does dispute that there was any agreement on a full and final settlement or that he made the remark attributed to him by Mr Bisping. Mr McGann also disputes that Mr Bisping had any proper grounds for complaining of any failure to pass on sponsorship monies.

January 2011 – The second Schedule of Tax Deductions and Tax Rates

111. Thereafter, Mr Bisping had one further bout under the Third PAR Agreement.

111.1 On 27 February 2011 Mr Bisping fought Jorge Rivera in Sydney, Australia. According to Mr McGann, the training camp this fight took place at Wolfslair and then, for 3 weeks, at the Elite Fighting gym in Sydney. Mr Bisping was one of 3 Wolfslair fighters on the card, and he paid most of his expenses. However, according to Mr McGann, he paid expenses of £3,610 on behalf of Mr Bisping that he invoiced on 1 April 2011. Again, according to Mr McGann, Mr Bisping’s total earnings from the fight were USD 424,000, entitling Mr McGann to a commission of USD 84,800. However, according to Mr McGann, Mr Bisping paid only USD 74,300. The balance of USD 10,500 forms part of Mr McGann’s claim for commission on sums withheld (at least initially) by overseas tax authorities.

112. In January 2011, prior to this fight, Mr Bisping had completed a further “Representation Authority” to Mr Roseby’s firm, Roseby Rosner & Young Pty Ltd in connection with his tax affairs in Australia and New Zealand. Mr Bisping had also submitted another Schedule of Tax Deductions & Tax Rates. This was in materially identical (and similarly over-stated) terms to the form which he had submitted in relation to the fight against Wanderlei Silva the previous year. The 2011 form, however claimed only USD 45,460 (disregarding the percentages also claimed as deductions), since it omitted the USD 7,000 claimed in 2010 for “hotel expense for spars and coach”.

113. When cross-examined about the 2011 form, Mr Bisping denied seeing it at the time. Mr McGann’s evidence, in his second witness statement, was that Mr Bisping gave it to him to submit on his behalf. “I later noticed that [the 2010 and 2011 forms] were exactly the same and therefore in my opinion they are fraudulent”. In cross examination, he said that he probably sent this form to Zuffa, but could not remember whether he faxed it, emailed it or handed it in. He vigorously denied that he filled the form in. It was nevertheless part of Mr McGann’s case that on 21 April 2011, he sent an email letter to Mr Bisping in pursuit of his claim for commission on overseas withholding tax amounts, which began “Brad Smuckler commented on your obtaining the lowest rate in Australia after the job we did on your expense’s sheet. I believe we got it down to 14% ..”.

2011 - The Fourth PAR Agreement

114. According to Mr McGann, Mr Bisping was shown on live television spitting at his opponent’s cornerman, and was later filmed drunk in a bar assaulting a fan. As a result, Mr Bisping’s relationship with Zuffa was put in jeopardy. In order to put matters right, Mr McGann flew to Las Vegas to meet Dana White to resolve the situation. Mr McGann’s evidence was that his meeting with Mr White began with Mr White “showing the video clip from the website TMZ showing [Mr Bisping] drunk and punching fans in the stomach after the fight. From this starting point, I had a lot of work to do to calm Dana down and smooth things over so that we could start to discuss the future”. Mr McGann also claims that, while he was there, he also negotiated the new promotional and ancillary rights deal for Mr Bisping, which was eventually signed later in March. It is Mr McGann’s case that he is entitled to be reimbursed his flight and hotel costs for the trip, which amounted to £1,500.

115. Mr White did not support this account in his evidence. According to him, he never had any problem with Mr Bisping, never had a bad relationship with him, and mostly dealt with him one-on-one. His dealings with Mr McGann were mostly in relation to Mr Jackson rather than Mr Bisping. However, Mr McGann drew attention to an online news report dated 28 February 2011 in “MMA Fighting”, which recorded that “UFC middleweight contender Michael Bisping will face disciplinary action for his behaviour following his UFC 127 win, UFC president Dana White told MMA fighting”.

116. At all events, on 22 March 2011 Mr Bisping signed (on his own behalf, as “Fighter”, and on behalf of MBL) a new Promotional and Ancillary Rights Agreement with Zuffa (“the Fourth PAR Agreement”). This (like the Third PAR Agreement) was for 8 bouts or 34 months from the first bout promoted under the agreement. The “Fighters Purse” for each bout under the Fourth PAR Agreement had gone up to USD 275,000, with a “Win Bonus” of USD 150,000. Provided that Mr Bisping was UFC Champion, he was (in certain circumstances) also to be entitled to a “pay per view bonus” for fights in which he defended his title. As before, the Fourth PAR Agreement stated that Zuffa would provide incidentals such as transportation, lodging, meals and bout tickets (or payments in lieu), as specified in the particular Bout Agreement. This time, Zuffa agreed to provide 2 hotel rooms and 2 round-trip economy-class tickets for Mr Bisping’s affiliates for championship fights, as well as a round-trip business-class air ticket for Mr Bisping.

117. Mr Bisping signed the Fourth PAR Agreement at Mr McGann’s house, and a video was made of the occasion. This was played as part of the evidence. Mr Bisping is shown thanking the UFC for keeping him in employment, and saying that “I want to thank the Wolfslair for helping me to get there, the management, the coaches everybody .. Thanks to Dana White, Lorenzo and Anthony at Wolfslair, Lee, everyone”.

118. It is common ground that, at about this time, Mr Bisping again visited Mr McGann at his house and, in the course of that meeting, told Mr McGann that Mr Bisping and his family were intending to move to America. According to Mr Bisping, Mr McGann wanted to discuss the tax implications of that move, outlined a plan of how this thing could avoid paying taxes by laundering his earnings through the Gibraltar bank account used by a company owned by Mr McGann. Mr Bisping’s evidence was that he had now discovered that this company was called Diamond Blue Ventures Limited: and he produced what purport to be three invoices issued by Diamond Blue Ventures Limited in relation to the Evans fight (UFC 114) on 29 May 2010. Mr Bisping also produced what appears to be a certified copy dated 27 June 2014 of an entry dated 5 August 2009 in the Gibraltar Registry of Companies showing McGann as the director of another Gibraltarian company, Bellana Ltd, together with a copy of an invoice from Bellana for “Managerial Fees UFC 114 05/29/10”, claiming 10% of a pay-per-view bonus of USD 1m. Mr McGann accepts that he did own a company called Bellana, but says that it was closed down “years ago”. He denies owning Diamond Blue Ventures Limited, and says that there was no discussion about tax at this meeting.

May 2011 – Mr Bisping says he wants to “move on”

119. It is also common ground between Mr McGann and Mr Bisping that, in May 2011, Mr Bisping telephoned Mr McGann to ask him what had happened to some sponsorship monies that Mr Bisping thought he was owed. Mr McGann was in the USA, helping Quinton “Rampage” Jackson, at the time, and said he was too busy to chase these items up. This led to a heated argument. In their evidence, Mr McGann and Mr Bisping each blamed the other for this.

120. According to Mr Bisping, he had told himself that he was not prepared to put up with this kind of behaviour from Mr McGann, and so, having thought it over during the weekend, he decided to call Mr McGann to put an end to their relationship. It is common ground that, on about 24 May 2011, Mr Bisping did telephone Mr McGann and told him that he wanted to “move on”.

121. Mr Bisping followed this telephone conversation up with an email dated 24 May 2011, in which he said:

I just want to follow up on the conversation I had with you (Anthony). My decision to move on from the Wolfslair is nothing personal, and I have no problem with you guys or the gym. It simply a case of me moving on with my life. I want to thank you both for everything you have done to me over the years.

I signed with you guys in 2005 and it’s been a great 6 years that I have thoroughly enjoyed being a loyal member of the Wolfslair team. The contract has now run its course and as I said on the phone I want to do my own thing.

I wish you both, the coaches and the team my very best.

Obviously we still have some outstanding financial issues from the last fight. I will wire the money in today. I have outlined it below.

Fight purse £183,516 20% = £36,703

Affliction £12,407 20% = £2,481

I paid you £20,000 earlier in the year and you have said you have collected the MMA elite and Venum money, which I believe total £8,063, minus your 20% which equals £6,451.

I think that leaves a total of £12,733 outstanding to you guys. As I said, I will wire the money in today.

Of course there is still the money from Musclepharm and USD 1,800 you mentioned from Tapout. When I receive these I will forward your cut.

Thanks again for everything

Mike

122. According to Mr McGann, he tried to call Mr Bisping in the days following that email, to find out what was really going on and to attempt to resolve the situation amicably. Emails sent by Mr McGann at the time seem to confirm this. On 28 May 2011, Mr McGann sent a long letter by email to Mr Bisping. The letter was headed with the name and address of WPL, and was written as if from that company rather than from Mr McGann personally. Its terms are important, because they are heavily relied upon by Mr Bisping as being inconsistent in many respects with the claims now advanced by Mr McGann. Despite the length of the letter, it is therefore necessary to set its terms out almost in full.

There have been several conversations between you and our agent Anthony McGann in regards to you ending your relationship with the Wolfslair Academy. It is now come to our attention that, even after we agreed to put this issue off till next week, you have already proceeded to inform the UFC of your departure. You requested our position in an email so here it is. Like we discussed at great length the business of Michael Bisping goes beyond the contract.

History before the Wolfslair

You came to the gym around the time of your Dave Radford fight (4/30/05). At this time you were with your previous manager/trainer Paul Lloyd Davies. We assisted you in this and the next fight against Alex Cook (6/18/2005). You decided that we could offer you more in the training and management world, so you left Paul Davies and joined the team. This is now in a legal action being handled by our lawyer Mike Blood. Paul is seeking his 20% for the period of his contract.

History since joining the Wolfslair

We then took your training to a new level importing Brazilian Black Belts at huge cost to the company. We not only paid for all the travel and expenses but also visa’s [sic] and even there [sic] families accommodation and expenses .. At this time .. as you were then 9 wins and no losses we made the move towards the UFC and the Ultimate Fighter show. We flew in a Brazilian manager who was close to Joe Silva and a verbal agreement was made and you entered the show.

Josh Haynes

This was the final of the Ultimate Fighter 3 reality show, the Wolfslair Academy put a full spread of coaches and sparring partners in Las Vegas for 5 weeks to prepare you for the show. This was a great cost to the company. We realise that you never made much money from the event and never pursed [sic] our costs, from that fight to this day you have constantly tried to put as many expenses as you can on the company. For the next 7 fights over a two-year period. You not only strove for us to pay camp bills, you resisted paying us from any bonuses received. Although it clearly was payment for your fights and is clearly stated in your contract you resisted heavily. A similar position as any gifts received related to the business, you were effectively paid with a Range Rover for TUF9.

We eventually got to a position where we were paying 50/50 of bills after the Evans fight in New Jersey (11/17 2007), we were not happy with this but we had invested in you since early 2005. Our position was that we would get you through the reltitively [sic] weak Reality show contract and then re-negotiate a better deal with the UFC which we did. The new contract started in July 2009 with the Henderson fight. Because you had visa issues we had to run most of the camp from Las Vegas again at huge cost to the company. We then agreed to drop the camp splits to 80/20 as the contact [sic] was strong and were no longer working on a bonus system .. This continued for another 5 fights, 2 being in Australia and 1 in Las Vegas. After your last fight you upset the UFC by acting inappropriately in Australia. We fixed the problem by travelling to Las Vegas and meeting with them, and secured you a new 8 fight deal for more money.

Investment in Michael Bisping

April 2005 to December 2005

Radford/Cook/Mehmet/Lovestad/Pointon

We paid all coaches wages, living expenses, accommodation, (all expenses free events)

Mario Sukata & family

Tony Quigley

Henrique Noguiera

Loquinha

Cost to company Total = 32,000 pound

December 2005 to December 2006

Haynes/Schafer

Again all UK costs for coaches` 52,000 pound

Plus Las Vegas camp bill (Haynes) 30,000 pound

Plus Las Vegas/UK camp bill (schafer) 12,000 pound

Cost to Company Total = 94,000 pound

December 2006 to December 2007

Sinosic/Hamill/Evans

Again all UK costs for coaches 52,000 pound

Sinosic camp bill 10,000 pound

Hamill camp bill 17,000 pound

Evans camp bill New Jersey 12,000 pound

Cost to Company Total = 91,000 pound

December 2007 to December 2008

All UK coaches cost