Dominant Position in UK Law

Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement.

In this case Miss T. had been during her childhood subjected to the religious beliefs of her mother and in her weakened medical condition, in pain, and under the influence of the drugs administered to assist her, the pressure from her mother was likely to have a considerably enhanced effect.

Second, it is said that the refusal to grant a patent licence to VIA either at all or on lawful and/or reasonable terms is an abuse of a dominant position contrary to Article 82 and/or section 18, and Intel is not entitled to the relief sought by it in these proceedings.

Standing back, the question I have to decide is whether Unwired Planet is in a dominant position in the relevant market. The relevant market is a market for licences under the SEPs. It is a market in which the SEP owner has 100% market share. The market is covered by the FRAND undertaking which does weaken the SEP owner's position. It is a market in which licensees can engage in holding out and there is some evidence that they do, particularly given the relative weakness of Unwired Planet.

Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.

It is important to notice that it is the imposition of unfair prices, not high prices, which can constitute an abuse. All that is said is that the rates are fixed at 10% of the bookmaker's gross profit or 1.5% of the bookmaker's turnover, that the cost of preparing the Pre-Race Data is approximately £4 million per year and that BHB's total income from data licensing was stated in 2002 to be expected to amount to £600 million over 5 years, that is to say, about £120 million each year.

The unfortunate fact in this case was that the hearing below was occupied to a considerable extent in questioning the wife's solicitor, who is himself the defendant in a pending action for negligence which may or may not be proceeded with. That is to say, it is not necessarily negligent advice to take a course or permit a client to take a course which a more experienced, or a stronger minded legal adviser would have discouraged.