The Racing Partnership Ltd v Done Brothers (Cash Betting) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Zacaroli |
| Judgment Date | 08 May 2019 |
| Neutral Citation | [2019] EWHC 1156 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2017-000093 & HC-2017-000094 |
| Date | 08 May 2019 |
[2019] EWHC 1156 (Ch)
THE HONOURABLE Mr Justice Zacaroli
Case No: HC-2017-000093 & HC-2017-000094
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT
INTELLECTUAL PROPERTY LIST (Ch D)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Mill QC and Tom Cleaver (instructed by K&L Gates LLP) for the Claimants
Michael Bloch QC and Craig Morrison (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Second Defendant (in HC-2017-000093) and Fourth Defendant (in HC-2017-000094)
Hearing dates: 16, 17, 18, 21, 22, 23, 28, 29, 31 January 2019 & 1 February 2019
Post-trial written submissions 8 March 2019 & 15 March 2019
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.
| A. Introduction | 1 |
| B. The horseracing data in issue | 7 |
| (i) Betting Prices | 8 |
| (ii) Raceday Data | 13 |
| (iii) The commercial value of Betting Shows and Raceday Data | 14 |
| C. The commercial arrangements entered into by TRP for collecting and distributing Betting Shows and Raceday Data | 17 |
| (i) TRP Media Rights Agreement | 17 |
| (ii) TRP/PA Agreement | 19 |
| (iii) TRP/RDT Agreement | 20 |
| (iv) TRP/Bookmakers' Agreements | 24 |
| D. The commercial arrangements entered into by SIS for collecting and distributing Betting Shows and Raceday Data | 25 |
| (i) Betting Shows | 31 |
| (ii) Raceday Data | 36 |
| E. The claimants' claims in outline | 41 |
| F. The alleged unlawful means | 47 |
| F1. Infringement of copyright in the PA Betting Shows | 47 |
| (i) Does copyright subsist in the PA Betting Shows? | 49 |
| (ii) Was copyright assigned to TRP? | 60 |
| (iii) Did SIS infringe copyright? | 66 |
| F2. Infringement of a sui generis database right in the RDT Database | 106 |
| F3. Breach of contract by the Tote | 115 |
| (i) The Tote Agreement | 118 |
| (ii) The Arena Terms | 121 |
| F4. Breach of confidence by the Tote and by SIS | 134 |
| (i) The law | 134 |
| (ii) Does the Raceday Data have the necessary quality of confidence? | 143 |
| (iii) Was the Raceday Data acquired by the Tote in circumstances importing an obligation of confidence? | 155 |
| (iv) Did SIS know (or should it have known) of the confidentiality attaching to the information? | 168 |
| (v) Was there unauthorised use by the Tote/SIS to the detriment of the rights holder? | 202 |
| (vi) Conclusion | 210 |
| F5. Breach by SIS of the terms and conditions of the Exchanges | 211 |
| G. Which of the causes of action constitutes “unlawful means” in the tort of conspiracy | 230 |
| (i) Areas of common ground | 230 |
| (ii) Breach by SIS of the terms and conditions of the Exchanges | 232 |
| H. The remaining elements in the tort of conspiracy: the law | 253 |
| (i) Combination | 256 |
| (ii) Knowledge of unlawfulness (the defendant) | 258 |
| (iii) Burden of proof as to knowledge | 288 |
| (iv) Knowledge of unlawfulness (other conspirators) | 292 |
| (v) Intent to injure | 296 |
| I. The remaining elements in the tort of conspiracy: application to the facts | 300 |
| (i) Combination | 301 |
| (ii) Knowledge of unlawfulness | 311 |
| (iii) Intent to injure | 313 |
| J. Conclusion | 319 |
A. Introduction
These two combined actions concern the alleged infringement of the claimants' rights in respect of data relating to horseracing at, principally, six racecourses (the “Arena Racecourses”) owned by the second claimant, Arena Leisure Limited (“Arena”).
The first claimant, The Racing Partnership Limited (“TRP”) produces live betting and horseracing data collated at racecourses pursuant to agreements with the course owners and sells it to off-course (including online) bookmakers. In relation to the Arena Racecourses, TRP's right to conduct this business, from 1 January 2017, derives from an agreement with Arena dated 13 May 2016 (the “TRP Media Rights Agreement”).
TRP also entered into an agreement with Northern Racing Limited, an associated company of the third claimant, permitting it to carry out similar activities as from 1 January 2018 from nine further racecourses. TRP entered into further agreements with the owners of seven independently owned racecourses (the “Independent Racecourses”), entitling it to carry on similar activities from those racecourses, in some cases from 30 April 2017 and in the remainder from 31 December 2017. I will refer to all the racecourses where TRP operated as the “TRP Racecourses”.
There were, across the two actions, originally six defendants, but confidential settlements were reached before trial with five of them. The sole remaining defendant is Sports Information Services Ltd (“SIS”). SIS previously had the right to collect and distribute to off-course bookmakers data from the TRP Racecourses, pursuant to agreements between SIS and each of Arena, Northern Racing Limited and the owners of the Independent Racecourses. In each case, the term of the relevant agreement ended immediately prior to the commencement of the replacement agreement between the respective owners of the relevant racecourses and TRP.
The claim in essence is that SIS, notwithstanding that it lost the right to collect and distribute the data from the Arena Racecourses on 1 January 2017, continued to do so in ways which involved infringing the claimants' copyright, confidence and contract rights. The overarching claim is that SIS conspired with others to injure the claimants by unlawful means. The trial was concerned with (and this judgment deals with) issues of liability only.
Before dealing with the claims in more detail, I will explain the nature of the data and the contractual relationships relating to the exploitation of the data.
B. Horseracing Data
Two types of horseracing data are involved: (i) betting prices; and (ii) factual information relating to the courses and the relevant races.
(i) Betting Prices
The betting prices relevant in this case are the fixed odds either offered by bookmakers (both on-course and off-course), or offered and accepted between market participants on online betting exchanges.
A vital piece of information collated from racecourses in relation to betting prices is a single representative price for each horse in a race, sometimes referred to as the consolidated pre-race price, but which is known, when transmitted to off-course bookmakers, as a “Betting Show”. Each Betting Show is the product of an algorithm (which essentially calculates a form of average price) into which is fed a selection of the fixed odds being offered by a sample of on-course bookmakers. It is common ground that the task of identifying bookmakers to include within the sample involves an exercise of skill and judgment. Betting Shows are produced from time to time in the period of eight to ten minutes before the start of the relevant race.
The Betting Shows are vital information for off-course bookmakers, because they enable them to offer odds to their customers that reflect the prices being offered by the on-course bookmakers.
Moreover, as the start-time of a race approaches, the Betting Shows offer the best indication as to the likely “Starting Price” for each horse in the race. The “Starting Price” is the official single price pertaining to a particular horse at the start of the race. It is settled through an industry-standard process, in accordance with standards laid down by the Starting Price Regulatory Commission Limited (“SPRC”), once the race has begun. It is thus unknown until after the start of the race. In the case of the Arena Racecourses, it is produced in precisely the same way as the Betting Shows, based on prices offered by the same sample of bookmakers.
The Starting Price is of considerable significance because a high proportion of bets are placed on terms governed by the Starting Price. It is important to off-course bookmakers that the Betting Shows (and certainly the final Betting Shows before the start of the race) are as close an approximation to the Starting Prices as possible, so as to avoid customers who place bets on the basis of the Starting Price being disappointed as a result of large discrepancies between the prices at which bookmakers offer or take bets and the Starting Price.
(ii) Raceday Data
The second type of data relevant in this case comprises information specific to the racecourse on the day of the race, such as the weather conditions, the state of the course (the “going”), the withdrawal of any horses, changes in jockeys, the start-time, the finish-time, any stewards' inquiry and the result. This is referred to as “Raceday Data”. It is of particular value to off-course bookmakers as it enables them to take bets right up to the start-time of the race, but not beyond, and pay out winnings as promptly and accurately as possible after the conclusion of the race.
(iii) The commercial value of Betting Shows and Raceday Data
For the reasons I have outlined above, in order for off-course bookmakers to offer bets on horseraces to their customers, it is essential for them to have access to Betting Shows and Raceday Data as quickly as possible. It is also essential that the information is accurate and reliable.
There is accordingly a commercial value in being able to collate Betting Shows and Raceday Data and distribute them in real time to off-course bookmakers. It is for that...
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