Football Dataco Ltd v Smoot Enterprises Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 14 April 2011 |
| Neutral Citation | [2011] EWHC 973 (Ch) |
| Docket Number | Case No: HC09C01092 |
| Court | Chancery Division |
| Date | 14 April 2011 |
[2011] EWHC 973 (Ch)
Mr Justice Briggs
Case No: HC09C01092
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark Chacksfield (instructed by DLA Piper UK LLP, 3 Noble Street, London EC2V 7EE) for the Claimants
The Defendants were not represented and did not attend
Hearing date: 11 th April 2011
INTRODUCTION
This is an application for judgment in default and, as against the first defendant only, for an interim payment of damages pending assessment. I have taken the unusual course of giving a reasoned judgment on the application for judgment in default because it raises a point of potentially general application, arising from the fact that the question whether the claimants have a cause of action for part of the relief sought turns on a question of European law which is the subject both of an unresolved appeal to the Court of Appeal and of a reference by that court to the European Court of Justice.
THE FACTS
The claimants are parties responsible for organising and running the major football leagues in England and Scotland. They publish lists of forthcoming matches in each season (the "Fixture Lists"). They also publish match information relating to matches currently being held, such as goals scored, red and yellow cards shown and the outcome of penalties ("the Live Data").
The Amended Particulars of Claim allege ( inter alia) copyright in the Fixture Lists as databases, and a sui generis database right in the Live Data.
The claimants' pleaded case is that the defendants have each committed infringements within England of their copyright and database rights respectively in the Fixtures Lists and the Live Data, by publishing them on websites serviced within England without the claimants' consent. They seek by this application permanent injunctions restraining that conduct in the future, damages to be assessed, and, as against the first defendant only (due to difficulties in serving the second defendant), an interim payment on account of damages. Service of the claim upon the defendants out of the jurisdiction was effected without the court's permission, pursuant to CPR Part 6.33(1). Neither defendant acknowledged service.
In similar proceedings against Yahoo! UK Ltd and others commenced in 2008 the claimants sought similar relief arising out of infringement of their alleged copyright in the Fixture Lists. In Football Data Co Ltd & ors v. Yahoo! UK Ltd & ors [2010] EWHC 841 (Ch) Floyd J held, on the trial of a preliminary issue, that the claimants did indeed enjoy copyright in the Fixture Lists as a database pursuant to sections 3 and 3A of the Copyright Designs and Patents Act 1988 (" CDPA 1988"). Section 3A was introduced by amendment into the CDPA 1988 so as to implement within the United Kingdom Article 3 of the Database Directive (96/9 EC).
On 9 th December 2010 the Court of Appeal gave judgment on the defendants' appeal, for which the Neutral Citation Number is [2010] EWCA Civ 1380. Without expressing a concluded view on the merits, the Court of Appeal considered that the issue as to the subsistence of database copyright in the Fixture Lists raised questions of interpretation of Article 3 of the Database Directive which needed to be referred to the ECJ, and settled what Jacob LJ described as short and simple questions upon which the determination of the ECJ was sought. The result is that the appeal in the Yahoo case remains to be determined and, so I was informed by Mr Chacksfield, counsel for the claimants, a period of up to two years may reasonably be expected to expire before the decision of the ECJ is obtained, always assuming that the litigation which has generated that reference is not itself settled.
In the absence of settlement, the outcome of the reference to the ECJ (together with its implementation when the Yahoo case returns to the Court of Appeal) will, as Mr Chacksfield frankly conceded, be conclusive of the question whether the claimants in the present case do or do not enjoy database copyright in the Fixture Lists. He submitted that this uncertainty was, nonetheless, no reason why the court should not give default judgment in the claimants' favour against these defendants, upon the basis of the allegation in the Amended Particulars of Claim that such database copyright subsisted.
THE LAW
The procedure for obtaining judgment in default of acknowledgement of service (which is the relevant default for present purposes) is set out in CPR Part 12. Rule 12.2 prevents default judgment being obtained at all in respect of certain types of claim. Rule 12.4(1) provides that, in relation to certain types of claim, default judgment may be obtained, purely administratively, by filing a request. Those cases include claims for liquidated sums or for damages to be assessed, together with claims for delivery of goods where the claim form gives the defendant the alternative of paying their value, or any combination of those remedies.
By contrast, where a claim consists of or includes a claim for any other remedy (such as an injunction) rule 12.4(2) provides that the claimant must seek default judgment by application pursuant to Part 23, unless he abandons his claim for remedies other than those identified in Part 12.4(1), which I have summarised...
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