The Racing Partnership Ltd v Sports Information Services Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Phillips,Lord Justice Lewison,Lord Justice Arnold
Judgment Date09 October 2020
Neutral Citation[2020] EWCA Civ 1300
Date09 October 2020
Docket NumberCase Nos: A3/2019/1764, 1821

[2020] EWCA Civ 1300

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, BUSINESS AND PROPERTY

COURTS, INTELLECTUAL PROPERTY LIST (CHANCERY DIVISION)

Zacaroli J

[2019] EWHC 1156 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Arnold

and

Lord Justice Phillips

Case Nos: A3/2019/1764, 1821

Between:
(1) The Racing Partnership Limited
(2) Arena Leisure Limited
(3) Arena Racing Corporation Limited
Claimants
and
Sports Information Services Limited
Defendant

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 Defendant

Hearing dates: 7–9 July 2020

Approved Judgment

Lord Justice Arnold

Introduction

1

These appeals raise important issues as to the limits of, first, the equitable doctrine of breach of confidence or, as I would prefer to describe it, misuse of confidential information; and secondly, the tort of conspiracy to injure by unlawful means.

2

The First Claimant (“TRP”) supplies live betting and horseracing data collated at various racecourses pursuant to agreements with the course owners to off-course (including online) bookmakers. In relation to six racecourses (“the Arena Racecourses”) owned by the Second Claimant (“Arena”), 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”). The Arena Racecourses are a subset of the courses in respect of which TRP claims such rights (collectively referred to as “the TRP Racecourses”), but for the purposes of the appeals it is not necessary to consider the position in relation to the other TRP Racecourses.

3

The Defendant (“SIS”) previously had the right to collect and distribute to off-course bookmakers data from the Arena Racecourses, among other rights, for a period of five years pursuant to an agreement between SIS and Arena (“the SIS-Arena Agreement”), the term of which ended immediately prior to the commencement of the TRP Media Rights Agreement. We were told that SIS paid an eight-figure sum for the package of rights, which included broadcasting rights, and a further eight-figure sum in fees over the duration of the agreement.

4

TRP claimed that SIS, notwithstanding that it had lost the right to collect and distribute data from the Arena Racecourses on 1 January 2017, continued to do so until July 2017 in ways which involved infringing TRP's copyrights and database rights, misuse of confidential information and breach of contract. In addition, TRP claimed that SIS conspired with others to injure TRP by unlawful means. SIS admitted some limited infringements of database rights and breach of contract in respect of later periods, but denied wrongdoing in the respects alleged during the period from January to July 2017.

5

After a three-week trial, Zacaroli J dismissed all of TRP's claims except its claim for misuse of confidential information. SIS now appeals against the judge's conclusion that it is liable for misuse of confidential information, while TRP cross-appeals against his dismissal of the claim for unlawful means conspiracy. Permission to appeal was granted on certain grounds by the judge and on other grounds by Lewison LJ. Although the other Claimants are parties to the appeals, it is TRP's claims that are in issue and so I shall focus on TRP.

6

The appeals were well argued on both sides, and it seems clear that certain issues came into greater focus than they had before the judge, who had to deal with a mass of other issues as well.

Factual background

7

The factual background is set out in full in the judge's clear and comprehensive judgment ( [2019] EWHC 1156 (Ch), [2020] Ch 289), to which reference should be made. At this stage, the following brief summary, much of it taken directly from the judgment, will suffice to set the scene, although I shall have to consider some of the facts in more detail later in this judgment.

8

TRP's claims relate to two types of horseracing data: (i) betting prices; and (ii) factual information relating to the courses and the relevant races.

9

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 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. 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.

10

The second type of data 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 or non-running of any horses, changes in jockeys, the “off” (i.e. the start time), the finish time, any steward's 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.

11

For the reasons 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 reason that TRP is (and SIS before it was) willing to pay substantial sums to the owners of racecourses to be allowed the exclusive right to collate and distribute such information to off-course bookmakers. The value in the information is, however, short-lived. Its value lasts for a matter of minutes only, and much of the value does not extend beyond the start of the race.

12

In order to protect its interest in such information generated at the racecourse, including its interest in granting, for reward, the exclusive right to collate and distribute such information, Arena imposes restrictions on the use to which those who attend races can make of the information they acquire. Those restrictions are contained in standard terms and conditions of entry, published on Arena's website, signposted at the entrances to the racecourses and incorporated into contracts with those that enter (for example, upon purchase of a ticket) (“the Arena Terms”).

13

TRP's claims at trial concerned the supply by SIS of Betting Shows and Raceday Data to the Betfred Group (“Betfred”) and the Ladbrokes Coral Group (“Ladbrokes”).

14

SIS created its Betting Shows using data from sources which included the Betfair and (to a lesser extent) Betdaq betting exchange websites (“the Exchanges”). At trial SIS admitted that, during January and February 2017, it had knowingly breached the express terms and conditions of the Exchanges by taking and using pricing information available on the Exchanges for this purpose. Although there were issues at trial concerning SIS's alleged use of another source and as to whether its use of Betdaq after March 2017 was authorised, the judge resolved those issues adversely to TRP and there is no appeal against those conclusions.

15

It is common ground that SIS collected Raceday Data through an agreement with Tote (Successor Company) Ltd trading as “Totepool” (“the Tote”) dated 30 December 2016 (“the Tote HoT”). The Tote is the successor to a body originally established by the Racecourse Betting Act 1928. This authorised the Racecourse Betting Control Board, later known as the Horserace Totalisator Board (“the Board”), to operate a “totalisator” on approved racetracks. The Board was a public body. On 13 July 2011 all property, rights and liabilities to which the Board was entitled or subject vested in the Tote, a private company. On the same day, the Tote became part of Betfred. The Board and the Tote have successively had a presence on British racecourses, including the Arena Racecourses, for many years.

16

Apart from a few occasions when the Tote operated “Totesport” fixed-odds betting outlets on certain TRP Racecourses (which it did under separate agreements), the Tote has only ever undertaken a pool betting service. That service includes collecting certain elements of Raceday Data from racecourses and making it available to off-course bookmakers via a dedicated data feed (“the Tote feed”). The Tote had carried out this service at the Arena Racecourses during the period covered by the SIS-Arena Agreement and continued to do so after 1 January 2017.

17

From January to July 2017 the Tote provided to SIS a data feed containing Raceday Data for use for fixed-odds betting pursuant to the Tote HoT. It is important to note that the judge found that the data provided by the Tote to SIS in this way included, but extended beyond, data which the Tote...

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