Helidon Vuciterni and Another v Brent Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Mr Justice Irwin |
| Judgment Date | 25 July 2012 |
| Neutral Citation | [2012] EWHC 2140 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5528/2011 |
| Date | 25 July 2012 |
[2012] EWHC 2140 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
and
Mr Justice Irwin
Case No: CO/5528/2011
The Queen on the Application of
MR MARTIN HOWE QC and MR ANDREW BODNAR (instructed by Lorrells LLP) for the Claimants.
MR JAMES MELLOR QC and MR ANTHONY HUCKLESBY (instructed by Brent and Harrow Trading Standards Service) for the Second Defendant.
The First Defendant did not appear and was not represented.
Hearing dates: 29 th & 30 th May 2012
Introduction
On 18 March 2011 the Brent Magistrates' Court, by a District Judge, issued warrants pursuant to Regulation 22 of the Consumer Protection from Unfair Trading Regulations 2008 ("the 2008 Regulations") authorising Brent and Harrow Trading Standards Service (the Second Defendant) to enter residential premises owned and occupied by Mr Vuciterni (the First Claimant) and his family and to inspect items there; and to enter commercial premises occupied by Alsat UK Limited (the Second Claimant), a company controlled by Mr Vuciterni, and to inspect items there. The warrants were executed on 22 March 2011. Various records and items were seized, as well as quantities of cash.
By claim form issued on 14 June 2011 the claimants challenge the grant of such warrants. They seek orders quashing the warrants; a declaration that the warrants were unlawfully executed; and an order for damages. The First Defendant has taken no part in these proceedings. The Claimants were represented before us by Mr Martin Howe QC and Mr Andrew Bodnar. The Second Defendant was represented by Mr James Mellor QC and Mr Anthony Hucklesby.
Background facts
The underlying case involves disputes as to rights with regard to the screening of football matches. It also involves consideration of the ambit of certain provisions of the Copyright, Designs and Patents Act 1988 (as amended) as well as of certain of the 2008 Regulations themselves. I will have to come on to those provisions in due course.
Mr Vuciterni was born in Albania. He came to the United Kingdom and was granted citizenship in 2003. He lives with his family at an address in Wembley. He owns 99% of the shares in the Second Claimant ("Alsat") and is its sole director. His wife owns the remaining 1% of the shares and is the company secretary. Its principal business was described as "retailing and wholesaling satellite products": a product called a Spider HD box being a particularly successful product. For the year end February 2010 turnover was £698,945; for the year end February 2011 (which covered the World Cup year) it was £1,625,805. Profit after tax for that year was £171,593.
The activities of Alsat were, as is not disputed, in October 2010 drawn to the attention of the Second Defendant ("Trading Standards") by a company called Media Protection Services Limited ("MPS") which itself has close connections with Football Association Premier League Limited ("FAPL") and BSkyB ("BSkyB").
The essential concern raised by MPS was this. In Albania a company called Tring TV had (under licence from FAPL) the exclusive rights to broadcast live Premier League football matches being played in England and Wales. (BSkyB has a licence from FAPL for the UK). In part because of restrictions on the broadcasting of such matches (primarily Saturday afternoon games) live in the UK itself, and in part because of other commercial reasons, Tring TV had agreed with FAPL that its broadcasting be encrypted so that it cannot be viewed outside Albania. Decoder cards are accordingly, it is said, supplied in Albania by Tring TV on terms that they are authorised for use only in Albania and are for personal domestic use. Purchasers of the decoder cards are required to give their details and also to agree that such cards are not transferable.
The complaint of MPS to Trading Standards was that Alsat was openly marketing and selling such Tring decoder cards for use in the UK, notwithstanding that they were permitted only to be sold and used in Albania; and, by being used in conjunction with Spider Boxes, they were enabling purchasers—who also may not be using them simply for private domestic use—to view live in the UK relevant Premier League football matches. MPS, through a representative, conducted an undercover test purchase on 17 November 2010 at Alsat's shop premises in Willesden Lane, London NW6. The representative stated that he wanted a Spider Box and Tring decoder card for use in his pub. He was, he said, told by Alsat's staff that the card was for domestic use only: but the sale was made anyway. Subsequent analysis of the Spider Box and card so purchased showed that they enabled the user to view live Premier League football matches. Examination of Alsat's website also indicated open advertising for the sale of Tring decoder cards to enable viewing of Premier League football matches. In the event the website was taken down in February 2011. In his witness statement Mr Vuciterni claimed that he did this because, although he considered Alsat's business perfectly lawful, he had become aware of FAPL's and BSkyB's "aggressive campaign" (as he styled it) to prevent live reception of Premier League games and he wanted, so he claimed, to try and avoid an expensive fight with them.
Trading Standards took the view that, in the light of the information provided, it was appropriate to commence proceedings against Alsat and Mr Vuciterni. Amongst other things, it was considered that it was an offence to advertise for sale these decoder cards on the footing that it was being stated or otherwise that the impression was being given that they could be legally sold when they could not, contrary to certain provisions of the 2008 Regulations.
It seems clear that Trading Standards were reliant to a degree on the information supplied by MPS, who themselves were acting on behalf of FAPL and BSkyB. Mr Howe complains that in truth all these proceedings have been driven by FAPL (if not BSkyB also): it also seems to be the case that FAPL are indemnifying Trading Standards in this litigation. Mr Mellor himself has acted regularly for FAPL in other litigation raising issues of this very kind. But in my view none of this of itself bears on the lawfulness of Trading Standards' actions.
Before applying for the issue of warrants, Mr Ashby on behalf of Trading Standards sought some guidance from a colleague in Leicestershire Trading Standards as to the 2008 Regulations, in an area with which Mr Ashby was not himself very familiar. As Mr Howe pointed out, Mr Ashby must have been briefed from some source as to the existence of s.297A of the 1988 Act. In his witness statement dated 30 June 2011 Mr Ashby says that his colleague at Leicestershire Trading Standards "confirmed" that Mr Ashby did not have the same powers as the police to obtain and execute warrants under s.296ZB and s.297A of the 1988 Act (which was correct advice) and pointed him towards Schedule 1 of the 2008 Regulations. Mr Ashby does not in his evidence explain what, if any, input MPS had in the application for the issue of the warrants.
In the result the application for warrants were made on 18 March 2011, by Mr Ashby on behalf of Trading Standards. The Information in support was in these terms, by its Grounds of Application:
"The Service is investigating a business named Alsat UK Limited, which trades as Atlas Satellite, and its sole director, one Helidon Vuciterni, whose date of birth is 13/02/71.
The offences being investigated have been brought to the attention of this Service by an organisation, Media Protection Services Limited (MPS), which investigates infringements of the intellectual property rights of the Barclays sponsored football Premier League Limited.
The Premier League Limited licence the broadcasting rights of their competition's matches all over the world. The licences issued are normally specific to set territories. In Albania, the licensee is Tring TV. The decoder cards that Tring TV supply in Albania are for sale only within Albania, and therefore cannot be sold legally within the UK. Further, the Tring cards are only permitted for domestic use within Albania. A supply of the Tring TV cards within the UK would likely be a breach of banned practice number 9 of the Schedule 1 list of banned practices under the Consumer Protection from Unfair Trading Regulations 2008.
The supply of these decoder cards within the UK also likely constitutes offences under s.297A of the Copyright, Designs and Patents Act 1988.
MPS have received information that Alsat UK Limited have been supplying Tring cards widely within the UK, and have advised me that offending Tring TV cards are being used broadly within UK commercial premises.
MPS have covertly test purchased a Tring TV decoder card from the Alsat UK Limited premises at 84 Willesden Lane, London, NW6 7TA. This card has been examined by a representative of BSkyB Limited, who are licensed within the UK to show Barclays Premier League football matches. The expert was able to use the Tring TV card to watch Barclays Premier League football matches. These included matches played during the UEFA closed viewing window, which comes into effect between 14.45 and 17.15 on Saturday match days, and is designed to protect the gates at UK lower league football matches which are also played at this time across the country. During this closed viewing period, the Barclays Premier League football...
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