In April 2019 Jockey Club Racecourses Limited (JCR), the owner of 15 racecourses nationally including Cheltenham and Aintree, obtained a permanent High Court injunction to prohibit touting of tickets at Cheltenham Racecourse. The permanent injunction followed on from a temporary/interlocutory injunction which was granted in October 2018.
The injunction places restrictions on classes of ‘persons unknown’ should they be engaged in selling or attempting to sell tickets and/or badges, buying or attempting to buy tickets and/or badges, or assisting in those activities at Cheltenham Racecourse without prior written consent of JCR.
We cannot imagine that written consent will be forthcoming for your average ticket tout, and with imprisonment, fines and seizure of assets the potential penalties for a contempt of court arising from breach of the injunction, JCR will hope that this will put an end to touting at Cheltenham once and for all, as it is said to have cost £1,000,000 - £1,500,000 in revenue last season alone.
JCR’s obligations to ‘persons unknown’
This is the first time a permanent injunction has been granted to prevent ticket touting on a racecourse against persons unknown on the grounds of trespass to JCR’s property and in her judgment Miss Penelope Reed QC detailed a number of reasons why he saw fit to grant the injunction, which were:
- It had been demonstrated beyond doubt that ticket touting on the racecourse’s own land was contrary to the terms and conditions on which tickets were sold. The terms and conditions of the racecourse provided that ‘no tickets shall be (a) transferred, sold or offered for sale:(i) if prohibited by law;… (iii) in the course of any business transaction whatsoever (including sales to or by any ticket tout)’
- A legal principal had been established in the criminal case of R -v- Jones (John)  1 WLR 672, that a person who is given permission to enter premises for a purpose and enters in excess of the permission is a trespasser. Therefore, ‘very arguably’ any tout entering the racecourse for buying and selling tickets does so as a trespasser
- On the evidence there was a real problem with touts which caused not only financial loss to JCR but also a nuisance to the race going public
- The application for an injunction was supported by the local authority (Cheltenham Borough Council) and the police
- Other attempts to control ticket touts with the assistance of the police and Cheltenham Borough Council had failed
- There was a real prospect that if a permanent injunction was not granted that the trespass would continue
What about the punters?
The injunction was made against touts and their accomplices. Those planning on selling tickets to touts should watch out, as they may be deemed to be engaging in a commercial or trading activity and come within the scope of the injunction.
The judge did not consider the position of individual punters who maybe have a spare ticket and try to sell it but the judge hearing the interlocutory injunction did not think that they would be affected as long as such sales were not ‘in the course of any business transaction’. However, clarity on this issue would be beneficial as it may well be possible to argue that any sale whatsoever, where money changes hands, is a ‘business transaction’ falling foul of the injunction. The judge said: ‘If ticket touts enter the racecourse with a view to ticket touting, which is clearly contrary to the terms and conditions of entry applied by the claimant, they do so as trespassers. In the unlikely event they enter with an innocent purpose, if they start to buy and sell tickets contrary to the terms and conditions which clearly would have come to their attention at that point, they would be acting in excess of the permission given to them to be on the racecourse.
It also seems clear to me that anyone carrying out ticket touting would either per se know that this was not an act which is allowed by the racecourse, or would have seen tickets or the website of the claimant and have been made aware that the effect of the terms and conditions made ticket touting an activity which was not part of the invitation extended by the claimant.’
Injunctions for other sporting venues?
A key area of discussion in the judgment was the classification of the touts at Cheltenham as trespassers. Racecourses are, in general, more likely than other sporting venues to have areas of their grounds that touts can enter easily in the absence of physical barriers.
Other venues such as football grounds or music venues may face difficulties trying to obtain an injunction as those touting their tickets often do so on public streets outside the venue, meaning they may not be actually trespassing.
It is interesting that the judge accepted the evidence that the obtaining of the interlocutory injunction in October 2018 had ‘a remarkable effect of almost eradicating the practice from the racecourse.’ Given the sums involved in ticket touting operations, other venue owners affected by similar issues may well sit up and take note.