Football Dataco Ltd and Others v Stan James (Abingdon) Ltd and Others

Hearing date: 11 February 2014

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Introduction

This is an application by the Claimants for permission to re-re-re-re-re-amend their Particulars of Claim in this action. In short, the application is to introduce a claim for joint liability on the part of the First and Second Defendants ('Stan James') for direct acts of infringement of database right by the Third Defendant, but more importantly by another company called Sportradar GmbH ('Sportradar'). Sportradar has already consented to judgment for the direct acts of infringement, following a decision of the Court of Justice of European Union in an action brought by the Claimants.

Stan James oppose the amendment. Essentially they say that it is made very late in the day, indeed after the trial and appeal of that part of the action against them which concerns their liability for extracting and/or re-utilising or authorizing the extraction and/or re-utilisation of Sportradar's infringing data. They say that the new allegation could have been made from the outset, and ought to have been brought into the proceedings (if it was going to be brought in at all) sufficiently soon for it to have been dealt with at that trial.

The Claimants say that the lateness has caused no prejudice. The issue can be dealt with at the trial of the remaining issues in the action. They further say that it could not or would not have been ordered to be heard at the first trial in any event.

In order for an uninitiated reader to make sense of the issues, it is necessary to provide (at least in summary form) a history of this action and the related action no. HC 09CO0391. Unfortunately, as will become apparent, the history is long and complex.

The history of the proceedings

These proceedings ('the Stan James action') concern the rights owned by the various Claimants in materials and data relating to professional football matches played in England, Wales and Scotland. The First and Second Defendants are bookmakers. The Third Defendant is a Danish company which provides a web-based live data feed of statistics and information relating (inter alia) to the football matches organized by the Claimants.

Commencement of the proceedings

This action was commenced on 11 February 2009. The Particulars of Claim included two separate complaints:

(i) that the Defendants were infringing copyright and/or database right in the fixture lists created by the Claimants by publishing those football fixtures on their websites (the 'Fixture Lists' claim);

(ii) that the Defendants were infringing copyright and/or database right in live data gathered by the Claimants from agents inside stadia (the 'Live Data' claim), by providing access (through a pop-up 'Live Scores' window) to D3's website which allegedly made use of that data.

The stay of the Live Data claim

On 23 July 2009, Master Bragge directed that the Fixture Lists claim should proceed to trial as a preliminary issue. In order to achieve this, all the Defendants had agreed that they would concede the Live Data claim if they lost on Fixture Lists.

There was a dispute between the parties as to the effect of Master Bragge's decision, and the parties duly returned before the Master on 7 October 2009, at which he confirmed that the Live Data dispute was to be stayed pending the outcome of the Fixture Lists dispute. The Claimants were unhappy about this and appealed to HHJ Michael Fysh QC, sitting as a Deputy Judge, on 26 November 2009. He upheld Master Bragge's decision.

The Fixture Lists claim

The Fixture Lists claim proceeded reasonably quickly to trial before Floyd J (as he then was). Judgment was handed down on 23 April 2010 in favour of the Claimants. However, Floyd J granted permission to appeal and refused to lift the stay of the Live Data dispute until the 'final resolution' of that appeal. At the first hearing of the appeal on 25 November 2010, the Court of Appeal referred a question on the subsistence of database copyright in the Fixture Lists to the CJEU.

The final resolution of the Fixture Lists claim did not occur until 12 November 2012, when the appeal was allowed by consent, the CJEU having held (in effect) that there was no database copyright in the Fixture Lists.

Commencement of the Sportradar action

On 23 April 2010, the Claimants commenced another action, HC 09CO0391 ('the Sportradar action'). The circumstances were as follows. At some point in early 2009, the 'Live Scores' button on the Stan James website had replaced the link to D3's Danish website with a link to a website hosted in Austria/the Netherlands and provided by a German company called Sportradar GmbH ('Sportradar'). The change of supplier of the Live Scores information from D3 to Sportradar had been pleaded by the Claimants by amendment to the Particulars of Claim in the Stan James action first notified on 18 August 2009 and formally made on 7 October 2009. However, the Claimants decided not to add Sportradar as a party to the Stan James action. Instead they instituted new proceedings (the Sportradar action) against Sportradar alone. This had the great tactical benefit of side-stepping the stay of the Stan James action, so that they could press ahead with proceedings which would (if successful) have the effect of stopping Stan James' infringing data feed at source.

Unfortunately for the Claimants, the Sportradar action did not provide the hoped-for speedy route to determination of the Live Data claim. Sportradar's response was to commence their own declaratory proceedings in Germany and to challenge the jurisdiction of the UK Courts on the basis that no relevant 'harmful event' had taken place here.

The Jurisdiction application in the Sportradar action

On 17 November 2010, Floyd J heard Sportradar's application to dismiss the proceedings on the basis of lack of jurisdiction. He found that the UK Courts had no jurisdiction in relation to the 'primary' acts of infringement of database right alleged against Sportradar – ie the acts of re-utilisation (making available to the public) of the data – because those acts occurred in the place(s) where the server(s) hosting the web-site were located (in this case Austria and the Netherlands). However, he held that the UK Courts did have jurisdiction in relation to an alleged secondary act of infringement of database right – joint liability for the infringing acts of customers (generally referred to in these proceedings as 'punters') who had, by clicking through the 'Live Scores' pop-up window on the Stan James website, accessed the Sportradar website and downloaded infringing data onto their computers. 1

The Jurisdiction Appeal in the Sportradar Action

Floyd J's decision on jurisdiction was appealed by both sides. The Court of Appeal handed down its judgment in the jurisdiction appeal on 29 March 2011. In short, it upheld Floyd J's decision on jurisdiction over joint liability for the infringing acts of customers, but decided to refer the question of jurisdiction over the acts of primary infringement to the CJEU.

Both sides seek to rely on what happened before the Court of Appeal in the Sportradar jurisdiction appeal. It is therefore necessary to consider the context of what was said and done.

The argument before the Court of Appeal was divided into two: jurisdiction over secondary liability for the infringing acts of third parties and jurisdiction over liability by way of primary infringement. It is important to remember the significance of the distinction. Whether liability was secondary or primary did not matter per se. What mattered was that secondary liability related to acts of primary infringement which had plainly occurred within the jurisdiction (because they were committed by UK punters on their computers), whereas the place of occurrence of the acts of primary liability by Sportradar

The only issue on secondary liability before the Court of Appeal was whether it had been properly pleaded in the UK before the German proceedings were begun. Thus the Court said this at ¶20 of their Judgment:

'The claimants say…that their complaint in April contains sufficient allegations to amount to a claim that the defendants are joint-tortfeasors with people here. It is accepted that if there are sufficient such allegations then the court has got jurisdiction and to that extent at least the English Courts are first seised of the dispute.'

It was because the people with whom joint liability was alleged were 'here' (ie they were carrying out the acts of infringement within the jurisdiction), that there was no jurisdictional issue on that part of the case. 2

The original pleading before the Court of Appeal, as quoted in their Judgment, named two customers of Sportradar. ¶23 of the Judgment sets out paragraph 34 of the pleaded case:

'…Their...