Building on Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 942 (TCC), while the decision provides certainty on the enforceability of informal digital agreements, it serves as a cautionary tale that informal or preliminary discussions may have biding legal consequences.
Background
The case involved sublicensing rights for the 2025 FIFA Club World Cup. Broadcast rights were granted to the DAZN group ("DAZN"), who were permitted to sublicense across different territories. Subsequently, DAZN and e-commerce company Coupang Corp ("Coupang"), in January 2025 the parties entered negotiations regarding broadcasting rights in South Korea across telephone calls, emails and WhatsApp.
By 27 February 2025, Coupang had emailed its offer of USD 1.7 million for co-exclusive rights to broadcast in South Korea (the "February Email"). On 03 March 2025, DAZN emailed back their acceptance and stated that contract drafting would start shortly (the "March Email").
DAZN later received a higher competing bid and sought to withdraw from the arrangement with Coupang, on the basis that the negotiations had not been intended to be legally binding. Coupang subsequently commenced proceedings, and an expedited trial took place in the Commercial Court in May 2025. The Commercial Court held that a binding contract had been concluded for co-exclusive broadcasting rights in South Korea. An injunction was also granted restraining DAZN from sublicensing or distributing the feed to third parties, except on DAZN/Coupang platforms.
Appeal
The Court of Appeal dismissed DAZN's later appeal. The Court of Appeal noted it was industry practice to negotiate key terms informally, often via WhatsApp, and then confirm with a more formal step such as an email. The February Email was therefore seen to resolve all key commercial terms, and it was found that the March Email was a clear acceptance of that offer. The Court of Appeal was further persuaded by the parties' subsequent conduct and communications between the parties, including trading congratulatory messages, which supported that an agreement had been reached. The urgency created by the imminent start of the FIFA Club World Cup also supported the inference that the parties intended to contract immediately.
Significance
The decision highlights that how parties negotiate can be just as important as what they negotiate. For commercial teams, it is an illustrative warning for the need for clarity and caution amid fast-paced informal negotiations.
Practical takeaways
- Language matters: Where parties do not intend to be immediately bound, it is essential that clear and unambiguous language is used. Phrases such as “subject to contract” or equivalent language remain the clearest ways to signal that negotiations are not yet legally binding. Parties should also avoid language or actions that could be interpreted as agreement or acceptance to performance, such as “I agree”, “let’s proceed”, thumbs-up emojis or any wording that suggests finality or acceptance.
- Engage legal teams early: Early legal input can prevent misunderstandings and ensure that informal communication does not unintentionally create binding commitments. Legal teams should also support the business in setting protocols for digital negotiations and training businesses on risk mitigation.
- Internal processes: Businesses should establish robust internal processes for managing negotiations on digital platforms. In fast-moving informal negotiations, an uncoordinated network can blur lines of authority and lead to fragmented negotiations. This increases the risk of parties inadvertently committing to obligations they did not intend to accept. Clear roles, approval pathways and documentation protocols are essential to mitigate these risks.
- Record-keeping: Where discussions take place over WhatsApp, Teams or other platforms with auto-delete features, key information should be transferred into a permanent record. This helps preserves evidence of what was agreed and supports compliance with regulatory record-keeping duties.
Clarity in digital communications is no longer just good practice - it is essential to avoiding unintended contractual obligations.
If your business is navigating fast-paced negotiations via informal channels like WhatsApp or Teams, our Commercial team at DWF is here to help. Contact us for practical advice on contract formation, digital communication protocols, and risk mitigation strategies.
Thank you to Adrian Davies and Joy Blankson-Hemans for the production of this article.
