Football Dataco Ltd v Britten Pools Ltd
| Jurisdiction | England & Wales |
| Judge | JUDGE FYSH,Mr Justice Floyd |
| Judgment Date | 23 April 2010 |
| Neutral Citation | [2009] EWHC 3294 (Ch),[2010] EWHC 841 (Ch) |
| Docket Number | Case Nos: HC 08 CO3222 HC 08 CO0391,No. HC 08 C03222 HC 08 C99381 (Claim No. HC 08 C03222) (Claim No. Hc 08 C03223) (Claim No. Hc 08 C99381) |
| Court | Chancery Division |
| Date | 23 April 2010 |
[2009] EWHC 3294 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
St. Dunstan's House
Before: His Honour Judge Fysh QC
(Sitting as a Judge of the High Court)
No. HC 08 C03222
HC 08 C03223
HC 08 C99381
(Claim No. HC 08 C03222)
(Claim No. Hc 08 C03223)
(Claim No. Hc 08 C99381)
(As Approved by the Judge)
APPEARANCES
MISS L. LANE (instructed by DLA Piper) appeared on behalf of the Claimants.
MR. P. ROBERTS (instructed by Olswang LLP) appeared on behalf of the Defendants.
THE DEFENDANT ENET PULSE did not appear and was not represented.
This is an appeal from the order for directions of Master Bragge made on
nd October 2009 as a result of a case management conference in three actions. In fact, Master Bragge gave two judgments, the first of which stems from the case management conference itself and is dated 23rd July 2009. The other appears to have been given orally on 7th October 2009 and arises from the rival contentions of counsel relating to the form of order which should be made.
Master Bragge's order is to be found in file A3B of the trial bundle. In essence the Master ordered the trial of one of the two issues in the action as a preliminary point. He also identified a trial window for the determination of that issue – the window opening in March of next year – and stayed the other issue until over the judgment on the preliminary point. He also consolidated the three actions then involved, which are to be found as the claim numbers at the top of the first page of his approved judgment.
These actions involved three different defendants but the same claimants in each case. The three defendants thereupon became known as “the defendants” in the consolidated action and I shall so refer to them in this judgment; and I will return to various points in the order, not all of which I should add, is under appeal.
The six claimants, for whom Miss Lindsay Lane appears, now appeal the part of the order directing that all the pleaded issues “shall be tried together. 1 The claimants include both the English and Scottish Football leagues. The defendants may now be regarded, as I have noted, as being essentially three in number and they were represented by Mr. Philip Roberts. A fourth defendant, which was a Danish company called “Enet Pulse”, though mentioned at times during the hearing, was not represented and may, I think, at present at any rate, be ignored.
I should also add that the major facts of the case, sufficient for present purposes, are fully set out in the judgments of Master Bragge and, save as appears hereafter, need not be repeated; I therefore incorporate that part of his judgments, which also appears to me to be uncontroversial, into this judgment.
One of the issues raised by counsel at the start of their addresses was the question of the approach to appeals based on discretion. This is an appeal from an order made in a case management conference and it is based purely on the exercise of Master Bragge's discretion. As is well known, under such circumstances special and well established considerations arise. I was in fact referred to the White Book in this connection, p.1509 under “Part 52 Appeals”– 52.11.4:
“As to what constitutes a sufficient error in the exercise of discretion to warrant interference by the Appeal Court see Tanfern Limited v Cameron MacDonald [2000] 1WLR 1311 para. 32. Brooke LJ suggested that guidance might be gained from the speech of Lord Fraser in G v G (Minors Custody Appeal) [1985] 1WLR 647 at 652. In the latter part of the passage cited by Brooke LJ, Lord Fraser stated:
‘… the appellate court should only interfere when they consider that the judge of the first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible …’”
An alternative formulation of the threshold test for interference with the exercise of the discretion by an Appeal Court is that stated by Lord Woolf, MR in PPL v AEI Rediffusion Music Ltd [1999] 1 WLR 1507 at 1523:
“Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”
Mr. Roberts preferred the first quotation, Miss Lane the second, but I do not think there is anything for present purposes that flows from that. There is a further quotation I shall mention (which is cited in the AEI case), which is from a case called: Roache v News Group Newspapers Ltd [1998] E.M.L.R. 161 at 172:
“Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale. See per Griffiths L.J. in Alltrans Express Ltd v C.V.A. Holdings Ltd. [1984] 1 W.L.R. 394 at 403G.”
So those are the authorities that were cited to me by way of guidance in this appeal.
Summarising therefore on approach, we get to this position: it is common ground that this is an appeal by way of review and not rehearing. Secondly, I have to be satisfied that the Master has gone, may I say, seriously wrong in the exercise of the discretion; in other words – quoting from one of those authorities – that he has “erred in principle”. The fact that I myself might have come to a different conclusion myself appears to be irrelevant. Miss Lane says the Master has made “a simple but fundamental mistake” and that is why we are all here. Thirdly,
I have, of course, always to bear in mind the overriding objective, CPR Parts 1 and 3. I must assess whether the Master has observed it, and further ensure that it is adhered to in this appeal.
I would add that Mr. Roberts has no criticism of the Master's approach to the case management conference or its result enshrined in the order.
Let me next look at the parties and the actions. The case management conference which took place was in relation, as I have said, to three actions, which were consolidated without opposition in the same case management conference. The common causes of action were twofold: copyright infringement and infringement of the database right. The defendants’ commercial activities concerned what I may call a “spin-off” of the football industry, namely that they are concerned with the use of various kinds of data for betting 2 and, I believe, in other ways as well. Other than to note that the defendants were selected by the claimants so as to reflect different sorts of allegedly infringing activities, nothing turns on the details of what the defendants actually do, at any rate for present purposes. Miss Lane told me that this is a test case and, by reference to the evidence which was before the Master, she has satisfied me that the claimants’ data has attracted relatively interesting fees for its use with obvious benefits to the claimants. Mr. Roberts agreed and following this, suggested that in truth the most important reward of this litigation as far as the claimants are concerned in each of the cases, was money. This being so, he said, a number of issues now in active contention and debate could easily be resolved by reference to the availability of interest in appropriate measure, were the claimants to be successful. Miss Lane denied this and said there was more to it than money and pointed to one or two other factors which I need not go into. This is obviously an important group of cases. It is perhaps worth mentioning, as delay also comes into the equation, that two of the actions were started some time ago in 2006. Mr. Roberts relies on that, though it is, I would add, at this stage simply a factor which the court must take into account.
Let me next take a closer look at the defendants. I think Yahoo speaks for itself and needs no introduction. The two Stan James’ companies, one from Abingdon, the other from Gibraltar, have attracted particular attention in the litigation; I shall explain why in due course. They are substantial betting companies. I will also deal with the other company in the trio, Brittens Pools Limited. Brittens Pools Limited (‘Brittens’) are a husband and wife pools company with a turnover of about £300,000. It has no employees – as I understand it. I would mention in parenthesis that a good deal of evidence was filed regarding Brittens and I have been taken to some of it. The point about Brittens is that they are mere minnows in this drama. This position has been frankly put in evidence by Mr. Melvin Britten,
and Britten's modest position evidently moved the Master as an element in the exercise of the discretion. Both Brittens are very worried about the effect of this litigation on their business. Their business is being undermined, they say, by the ongoing uncertainty of this litigation and, reading between...
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