Copstick argues her point in this week’s Grouchy Club podcast
This week’s Grouchy Club Podcast features a slight disagreement between co-host Kate Copstick and me about the mess over the Cowgatehead venue at this year’s upcoming Edinburgh Fringe.
VIDEO HERE
AUDIO-ONLY HERE
In the podcast, I say that I think Peter Buckley Hill (known as PBH) of the PBH Free Fringe and the competing Freestival organisers are both telling the truth as they perceive it, even though their versions of what has happened seem mutually exclusive. You would have to listen to the podcast to get the idea. (Never knowingly underpromoted.)
The basic highly-simplified situation is that both organisations claim to have had rights to the Cowgatehead venue. The PBH Free Fringe now have a written contract; the Freestival claim to have had an earlier oral contract. Under Scots law, oral contracts are legally binding.
The key point to me is the point at which the Freestival offered a ‘compromise’ solution of splitting the rights to the building in two (as they were last year) with the PBH Free Fringe staging shows in the upper half of the building and the Freestival staging shows in the lower half.
It was the point at which this proposed ‘compromise’ meeting did not happen that it became inevitable that acts could lose an estimated £77,000.
As I understand it, the idea of splitting the building is currently totally unacceptable to the PBH Free Fringe. There is also disagreement over the number of venues possible in the building, with PBH saying it is not possible to put nine performance rooms in the bottom half.
In a statement on 5th June, Frank Galbraith of PBH Free Fringe wrote (the capitals are his):
So that we are all clear on this point the licensee has confirmed with us and the Fringe Office that NO COMPROMISE MEETING WAS EVER AGREED OR EVEN DISCUSSED WITH FREESTIVAL FOR THEM TO USE OR SHARE THE BUILDING.
As I understand it, the compromise suggested by Freestival involved splitting the high-rise venue (as last year) with the Free Fringe running six rooms (at the top) and Freestival running nine rooms (at the bottom), three of which they would specially build.
As I understand it, the PBH Fringe holds that it is not possible to have nine rooms in the bottom half of the building.
On Scots comedian Alan Anderson’s Facebook page, there is a posting from Al Cowie, who was part of the team administering the Freestival last year (but who is not working with them this year). He writes that, last year, Freestival themselves built the six rooms used and he continues:
Freestival had budgeted for building a further 3 rooms this year, and would no doubt have done so in the current situation had PBH allowed this. So while PBH has made claims that the 3 rooms never existed, this is correct but also disingenuous.
As for the meeting between the licencee and Freestival, before PBH then phoned the licencee again (according to PBH’s own words), apparently when the licencee met with the Freestival team, he agreed in principal with PBH getting the top of the building (above George IV Bridge). PBH had it last year, and 6 spaces could be housed there with ease (there is space there for substantially more stages in fact). Freestival would stay in the bottom. As compromises go, it was a good one.
Of course, this is if we are to believe both PBH and Freestival (and the words used by PBH denying the compromise are very careful in not saying that Freestival have lied about their meeting with the licencee or whether the licencee agreed, it is other people interpreting those words as him saying that Freestival lied).
PBH’s response to Freestival arranging a meeting and reaching out to PBH and the Fringe Society to moderate (again, taking my information from what PBH wrote) was to phone the licencee. After that conversation, there was no compromise on the table, there was no meeting in London to happen, and further, it was at this stage the PBH also said that he now had two other Freestival venues as well, the Tron Kirk and St John’s, so disrupting many more shows.
The Cowgatehead building is massive (it used to be a library) and can take at least 19 stages, plenty of space for the 9 stages for Freestival’s, 6 stages of PBH’s and at least space for 4 more. If PBH had wanted to allow Freestival to use the space, he would still have had his 6 stages. But doing so would not damage Freestival as much (and I genuinely don’t think that PBH did this to harm the acts, I think that they are merely collateral damage in his entirely public desire to make Freestival to fail and collapse. And fair play to him, he’s probably succeeded in that).
However, the fact that the damage to acts wasn’t meant personally, doesn’t change that the damage was deeply personal to those of us who were booked into the venue by Freestival.
It would be easy to assume that this whole anarchic ongoing mess was partially caused by the PBH Free Fringe and the Freestival being at each others throats in the whole run-up to this fiasco and that neither side knew what the other side was doing.
This was certainly what I thought had happened.
However, it seems that, earlier this year, there was co-operation between the two apparently opposing organisations and that the PBH Free Fringe, as an organisation, was perfectly prepared to share the Cowgatehead building with the Freestival and acknowledged that a nine-room Freestival operation was at least entirely possible.
In the emails below, the people involved are:
FREE FRINGE
Frank Galbraith
Paul B Edwards
FREESTIVAL
Julian (Jools) Constant
At one point, the Fringe Office itself becomes involved.
Suruchi was a Fringe venue in 2014.
The Elio mentioned is Elio Crolla. I understand the Crolla family own the building and, this year, have rented it out to Kenny Waugh who is the gent farming out rights for the Fringe performance rooms.
I have altered abbreviations to make the correspondence more understandable – For example, I have changed Cgh to Cowgatehead.
20th JANUARY 2015
From: Julian Constant
To: Frank Galbraith
Hi Frank.
I hope you and mags are well. We are looking for another bar of our own this year and wondered if you were going back into the top half of Cowgatehead. If you are we will stay well away and not tread on toes.
Any pointers for other empty spaces for bars which you don’t want would be appreciated.
By the way. We won’t be doing Suruchi this year if you guys want it. It’s a 30 seat nice room.
Warmest regards
Jools
20th JANUARY 2015
From: Frank Galbraith
To: Julian Constant
Hi Jools,
All well here, hope all ok with you.
I had agreed with Elio to use same space again this year.
However Elio has now taken seriously ill with cancer and is presently in hospital. I understand he may not be with us for much longer, days as opposed to weeks.
Very sad situation for a young man (46ish) and his family.
I will check with his brother, when the time is right, what his plans are for the upstairs level.
I will let you know about other available spaces you can approach, including void spaces suitable as pop up bar, when I get home.
Cheers for now.
Frank
5th MARCH 2015
From: Paul B Edwards
To: Julian Constant
Hi Jools,
Frank’s alerted me to the Freestival listing of nine stages for Cowgatehead this year (I’m trying desperately hard not to get involved). Can I just check with you that this is maximising the space below the George complex and doesn’t include George itself?
We’re obviously keen to have our venues back again and I’d rather know in advance what you’ve negotiated if it affects us. I hope to God you haven’t encroached on it (I don’t think you would have) and would appreciate it if you could let me know asap. Things have been fairly quiet and aggro free this year and I really would rather keep it that way!
Cheers,
PaulyB
5th MARCH 2015
From: Julian Constant
To: Paul B Edwards
Well well. Last year aggression & rudeness… I offered to meet you last year to discuss talk about all of this properly in a adult fashion. Then I get first hand reports from two different people that you were loudly & openly slagging me off in the loft bar to anyone who will listen… & now you’re making semi polite requests for information. I will discuss whatever is or isn’t happening in Cowgatehead with Frank (as he is a reasonable man worth having a conversation with) as and when it becomes appropriate.
Jools
5th MARCH 2015
From: Paul B Edwards
To: Julian Constant
You’re damn right I was slagging you off last year. I made no secret of it and how I thought you acted was disgusting. It wasn’t just you though. It was all of the Freestival people. I myself suggested we talked about this year at the end of the Fringe when you attempted to glad hand me in The Loft itself, but not until after the dust had settled. This year I’ve sent a discreet request for information to you in the hope Peter won’t get ill again because you’re trying to take our venues. It was also in the vain hope you weren’t being underhand.
I’ve refused to get involved this year and sent the email below in an attempt to avoid any nastiness. I see it was in vain. Let’s just put it this way – If you have the nine stages that are potentially available in Cowgatehead this year – great, I’m pleased for you, well done. If you have made attempts to nick the George complex you’re just proving what I have (sadly) long suspected.
I really do hope I am wrong, for pete’s sake, for Peter’s sake.
10th MARCH 2015
From: Fringe Office (Participants)
To: Julian Constant
CC: Fringe Programme
Hello Jools,
Thanks for letting me know. There were a few things to add to the venue to make it live and I’ve done that just now. I think it was the confusion around people asking about Cowgatehead as a venue and not the new name of Cowgate Tops George IV Bridge with the space names of Cowgatehead 7, Cowgatehead 8 and Cowgatehead 9. I’ve copied the programme team in so that they are aware as well.
Just so you know, the Free Fringe has not told us they aren’t using this space this year, and they do have an active venue at the same address as Cowgate Tops George IV Bridge called the name they gave it last year, George on the Bridge. We’ll monitor how things go to ensure shows end up in the right spaces.
You’ll also always have the proofs as well to double check.
Best wishes,
Kevin
19th MARCH 2015
Frank Galbraith
To: Jools Constant
Hi Jools,
All well here, hope you’re well and not getting too stressed!!! the fekin Edinburgh Fringe does that to people.
Also, that fekin building attracted enquiries from all over the world this year, including the Bangkok girlie boys. When they lost the meadows this year Giorgio told me he was offered £50k for Cowgatehead.
Its a great building but it does come with high levels of stress at times, especially when the EdFringe deadlines keep getting earlier.
Hope all goes well for you this year and off course stress free.
Cheers for update,
Frank
19th MARCH 2015
Julian Constant
To: Frank Galbraith
Hi Frank
I hope you and Mags are well.
After hearing 6 different versions of what is happening to Cowgatehead all from credible people all claiming to have the definitive answer from someone on the inside… We now finally have a conclusion.
Kenny Waugh has signed the deal to take the lower half & you have the floor at George IV Bridge Street street level.
I should have just listened to you in the first place.
I will alter the location description we have used on edfringeware so that no more confusion is caused.
Warmest Regards
Jools
As I understand it, the signed deal referred to in the final email is between Kenny Waugh and the owner of the building for rental (by Kenny Waugh) of the building.
SO IT GOES - John Fleming's blog 
“Its a great building but it does come with high levels of stress at times”
No shit, Frank.
The last email states a deal was SIGNED with Freestival in March? So there is something in writing? This really needs some serious resolution.
The last email from Freestival to the Free Fringe says that a deal was signed by Kenny Waugh with the owner of the building (“to take the lower half”). At a later date, as I understand it, Freestival made an oral contract with Kenny Waugh
and, later still, the Free Fringe say they signed a written contract with Kenny Waugh. I have now added a final paragraph to the blog in case this is not clear.
It’s also a bit weird that the Fringe still have Freestival’s Cowgatehead as a performers opportunity in their Performer’s Opportunities thingy at
Click to access Showcase%20and%20Performer%20Opportunities%20Listing%202015.pdf
Interesting. Well, we must all give what we can offer to the Free Fringe so I will offer my experience of contracts. This is not legal advice just an uninformed opinion…
The email to Jooles from Frank Galbraith doesn’t read like a contract to me. In my understanding a contract must quantify an exchange of goods, money or services in a form like…. I will give you X for Y or …I will give you A, B, C for D, E and F. The email simply says “you have the floor at George IV Bridge Street street level” not “you have the floor at George IV Bridge Street street level… in return for”.
Of course there may be a secondary aural agreement that this may substantiate but we are dealing with non-fungible bartered commodities and labour. I would advise that taking the “king of clubs” in Edinburgh to court over a possible aural agreement over non-fungible assets and labour would not be a prudent course as I would imagine that even if the Freestival have a case (which I doubt) rather than an understanding (which I suspect) the legal team that multi-millionaire Kenny Waugh can muster might be slightly better than the one Jooles Constant can muster.
Also leaving that aside it would seem to me that this man seems to own a large sector of the pub business in the city and that taking legal action against him could have negative long term consequences for the Freestival’s desire to work in the city again … even if you won the case it would make future negotiations with the pub industry …shall we say …”interesting” … if they thought reneging on the agreement could have serious financial consquences. Suddenly we’re talking money again, aren’t we…? Suddenly it’s not as simple as “if you give me a room I’ll fill it with punters”.
It’s like this. Pear Shaped does not have a contract with the Fitzroy Tavern. We have an understanding. “We’ll get some people in the room and you’ll get some beer sold”. There are other secondary understandings too such as we’ll make all political problems to do with the circuit and the acts stay away from you and we won’t generate any negative publicity for the venue. Most of this is unspoken but sometimes it is spoken. That’s fine for a small comedy club … But what Peter and the Freestival are trying to do is take something like Pear Shaped and/or the Comedy Bin and scale it up to the 10, 20, 30 venues and hundreds and hundreds of performers and hours and hours of hour long shows. Suddenly we’re bartering a huge volume of time and labour and ultimately that’s arguably exchangable for money and that’s when things start to become a problem. There’s a reason there’s only one Pear Shaped and that’s because workers collectives work well on a small scale but are hard to scale up. The most we ever went to was 2 and a half nights.
It’s interesting too that Peter writes of the Free Fringe “The licensee does not wish to work with Freestival. He has chosen the Free Fringe as his preferred partner.” But what sort of partner? A business partner? It is interesting to read the Ethos and Conditions. Particularly “You have paid nothing, so nobody’s working for you. You have no entitlements. Everything’s a matter of negotiation and goodwill.” Scan it again and see how many times you can find the word “work”. Peter is wrong. He is running a business. People hand out his branded literature – they are working for him. He has made a remedial error. He thinks that by stating people have no entitlements and getting them to agree to the fact that they have no entitlement people have no entitlements either as consumers or as a result of being employed. He is wrong. Everybody has fundamental consumer and employment rights that you cannot make them sign away in a contract – if you could they wouldn’t be rights. I’m not saying he’s doing anything majorly wrong here exactly so much as he is mistaken and if the negotiation and goodwill runs out he could find himself legally liable for his mistakes.
Perhaps he is aware of this. The PBH forums contain a load of waffly old group emails by PBH over old venue negotiations. He tells his acts exactly what stage negotiations are at with each venue all along the line. Something possibly the Freestival should have done! But they didn’t so their bottoms are not covered. Petere’s “this is where we are now” system means that if things go pear shaped Peter’s bottom is legally covered to a large extent because no one can say that they’ve been led up the garden path. It might also go some way to explaining why Peter does not want people applying to multiple organisations – because he is sharing commerically sensitive information to everybody who applies and he doesn’t want it all bulk disseminated to the Freestival and Alex Petty.
Also the thing about Freestival and the division of rooms. Pear Shaped is closing soon (at least for a while) as the Fitzroy Tavern needs a major refurb and rebuild that will cost many millions of pounds. Nothing exterior to the pub will change but the interior will be completely repartitioned with the upstairs becoming three rooms and the downstairs becoming an enormous toilet (which some may argue it is at the moment). The repartitions in the rooms have to be sent to the Council planning department particularly in the case of a listed building or any kind. Can you really just go round just sub-partitioning rooms willy nilly into new performances spaces relentlessly? What about health and safety regulations? In my experience once you get into altering the internal fabric of the building a small army of bureaucrats appear from the woodwork …and negotiations get a lot more complicated. It took us 5 years to get a new door handle that you could buy in B&Q for a tenner and fit in half an hour but … of course changing the doorhandle gets you involved in the politics of the building and then things get very complicated very fast. I’m sure the Council in Edinburgh turn a bit of a blind eye to building regulations etc during the Fringe but they have to have some and I expect they’re an issue or the Free Fringe will soon turn into a Tokyo capsule hotel. You think just putting a soundproofed wall up is simple and in physical terms it is …but in legal terms…?
That all said if you deal with large sums of money (as one does) for a day job you are taught very early on that any email can be interpreted as a contract and to be very careful. I would advise the Mr Waugh to …erm … review procedures… it didn’t always used to be so you used to have to fax things for them to be legal until some twisted mind argued that actually a fax is a digital tiff compression file that just happens to be sent in analogue form … who exactly possesses the kind of mind that would make such an observation I cannot say…
Anyway …well, PBH isn’t PBH by accident is he? He’s got 17 years of experience plus all those years in the music business dealing with venues before … hum … Freestival are trying to learn it all in 2.
I also think everyone involved should get better legal advice…
Just to clarify the start. Jools/Frank and the Free Fringe/Freestival were not talking in contractual terms with each other. Kenny Waugh was the man dishing out agreements to put on shows.
Yes. The email simply says the Freestival may have a space but not for anything. You never know Kenny Waugh may just go around giving performers spaces out of the goodness of his heart or be a great philanthropist. One of the upsides of using external promoters is of course that we are disposable. If you gave the job to building managers and bar managers then when you moved them to another venue they’d have to pass that knowledge on to another building manager or bar manager … Also if you run as some pub chains do as an unlimited company/companies there’s a danger that if the staff get involved in promotion then elements of your business and its assets can theoretically schism off. So it often makes sense legally to have your promoters external othewise you might find your pub chain schisming as often as the Free Fringe. The rules vary a lot from chain to chain but there are some pub chains where the landlords are not allowed to put up a single poster …which makes running a comedy club in them … a challenge.
The really interesting question is if PBH has a contract rather than just an understanding … what does it say? Presumably if no money is changing hands then it must quantify what the Free Fringe is providing in some form. Is that an admission that labour is being provided and is worth something? Is it indemnifying the venue against a faliure of acts to show up? Presumably then some of his acts and staff must be legally workers…? If there is a contract then presumably people switching at a late stage to another provider may cause him more problems than mere logistical ones? Some very strict clauses in the ethos and conditions about dropping out and sub-contracting. Fascinating isn’t it? However, I will stop thinking about it now because although I’m nosy that’s not always a healthy way to be…
Does anyone know if the basement of 7 George IV Bridge, in the cowgate,will be open this year? Last year it was The Cowshed.