Viagogo AG v Competition and Markets Authority
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] EWHC 1706 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: FS-2019-000005 |
| Date | 18 July 2019 |
[2019] EWHC 1706 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (Ch.D)
FINANCIAL SERVICES AND REGULATORY SUB-LIST
Rolls Building
Fetter Lane,
London, EC4A 1NL
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: FS-2019-000005
Mr Paul Stanley QC and Mr Malcolm Birdling (instructed by CMS Cameron Mckenna Nabarro Olswang LLP) for the Claimant
Mr Rob Williams and Mr Jack Williams (instructed by CMA Legal Department) for the Defendant
Hearing dates: 18 June 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.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling QC:
Introduction
This is the hearing of a Part 8 Claim by which the Claimant (“viagogo”) seeks declarations concerning the true meaning and effect of two substantive provisions within a consent Enforcement Order made pursuant to s. 217 of the Enterprise Act 2002 on 29 November 2018 by Nugee J (“Order”).
Background
Viagogo is a corporation registered in accordance with the laws of Switzerland that operates a global online sales platform by which it solicits offers to purchase admission tickets issued by the organisers of live sport, music and entertainment events, usually on behalf of third party sellers (either individuals or traders) that have pre-purchased them at face value from the event organisers. The sale price of such sales is usually at a premium to the face value of the tickets concerned. This market is known as the secondary ticket market. There are other participants in the secondary ticket market, of which the most prominent is StubHub. Secondary ticket market customers can move effortlessly from website to website. This leads Mr Stanley QC to submit on behalf of viagogo that it is important to its business success that it can compete on a “ level playing field” with its competitors.
In December 2016, the defendant (“CMA”) commenced an investigation into the secondary ticket market. In relation to viagogo, part of the focus was on what the CMA characterises as missing information in particular concerning the face value of the ticket being offered for re-sale and on the fairness of various restrictive and exclusionary terms including short deadlines for making claims under viagogo's guarantee in respect of tickets purchased using its website. In early 2018, the CMA sought various undertakings from the four main market participants in the secondary ticket market (including viagogo). In March 2018, the CMA began a formal consultation under s.214 of the Enterprise Act 2002 but by April 2018 the CMA had obtained undertakings that were satisfactory to it from all the market participants under investigation other than viagogo.
Following further correspondence and a letter before action on 8 June 2018, on 30 August 2018, the CMA issued proceedings against viagogo seeking an Enforcement Order on the grounds that it had failed to comply with its obligations under the Electronic Commerce (EC Directive) Regulations 2002, the Consumer Protection from Unfair Trading Regulations 2008, the Consumer Contracts (Information Cancellation and Additional Charges) Regulations 2013 and the Consumer Rights Act 2015. As I have alluded to already, part of the focus of these complaints related to the alleged failure by viagogo to supply information about the face value of tickets being offered for sale on its website and the unfairness of deadlines imposed in respect of claims under viagogo's guarantee. The CMA contends and I find that information concerning the face value of tickets being offered for sale is of importance to consumers for two reasons – first, it enables a consumer to evaluate the quality of the ticket being offered and secondly, it enables the consumer to ascertain whether he or she is being invited to pay a premium to the face value of the ticket and if so how much that premium is. Information as to the time limits that apply to claims by consumers under Viagogo's guarantee enables a consumer to decide whether viagogo's guarantee offers adequate protection and, therefore, whether to purchase using its platform.
Following a significant amount of interlocutory activity after the issue and service of proceedings, on 27 November 2018 the parties compromised those proceedings by the Order. As I have said, viagogo offers its services exclusively via its website. The Order required that certain information be provided to customers using the website. In purported compliance with the Order, viagogo provided information concerning the face value of the tickets being offered for sale and concerning the time limits that applied to claims under its guarantee using what the parties call in these proceedings a “ hover over” text facility by which a website user wishing to access information places the mouse operated cursor over an icon within the website which results in a box opening, which displays the required information. However, the information is visible only if and as long as the cursor is positioned over the relevant icon and the information cannot be printed.
The Order
In so far as is material, the Order provides:
“Upon [CMA] bringing proceedings in respect of the matters set out in … the Claim Form (“the Conduct”)
…
1. [viagogo] shall comply with Sections 217(6) and 217(10A) of the Enterprise Act 2002 in relation to the Conduct by complying with the terms of Section A, Section B1, Section B3 and Section C of this Order.
2. [viagogo] will comply with Paragraph 1 by 17 January 2019 and thereafter.
…
Section A – Requirements
…
16. [viagogo] will Clearly and Prominently display a notice to Consumers on the website that [Viagogo's] Guarantee does not affect their statutory consumer rights.
17. [viagogo] will ensure that all exceptions and qualifications which apply to [Viagogo's] Guarantee are Clearly and Prominently displayed on the website at the time of the purchase of the ticket.
18. [viagogo] will not reject a claim by a Consumer under [viagogo's] Guarantee if the reason for the rejection of the claim was not Clearly and Prominently displayed on the website at the time of the purchase of the ticket.
…
19B Where [viagogo] is the seller, [Viagogo] will Clearly and Prominently state on the ticket listing pages that [Viagogo's] Guarantee does not exclude or limit a Consumer's statutory rights.
Complaint and Claim Handling
20. [viagogo] will establish a Complaint and Claim Handling Process. To comply with this requirement, [viagogo] will:
…
(c) ensure that the deadlines for Consumers to submit a claim under the Defendant's Guarantee are Clearly and Prominently disclosed to Consumers at the time of purchase and in a Durable Medium with the confirmation of the purchase of a ticket;
…
Section B1 – Disclosure of Information on the Website
…
2. Where applicable, the following information of which
[viagogo] is Aware will be Clearly and Prominently displayed on each ticket listing on an Event Page (either in writing or indicated through a suitable label or icon)
…
(e) the Face Value of the ticket
…
Section C – Definitions
…
5. Clearly means information must be displayed in plain
English and, so far as [Viagogo] can determine from the information of which it is Aware, be:
(a) complete;
(b) correct; and
(c) not misleading.
…
9. Consumer means a natural person acting for purposes not related to his or her business or professional activities and, for the avoidance of doubt, not an Event Organiser
…
13. Event means a specific performance, sporting fixture or equivalent scheduled for a specific venue on a specific date and time.
…
15. Event Page means any page on the Website which displays multiple ticket listings for an Event.
…
17. Face Value means the amount stated on the ticket as its price.
…
27. Prominently means the information must be displayed so that it:
(a) is clearly visible in each location as required by this Order;
(b) is presented in an appropriate font, size, colour and position to enable the Consumer to easily identify, reads and understand the information; and
(c) except as permitted by this Order, does not require the user to take any action to access the information.
…
40. Website means www.viagogo.co.uk and any other internet based site, platform or facility … operated by [Viagogo] as a secondary Ticketing Facility and which is directed to UK consumers.
…”
The Issues
The CMA maintains that viagogo has failed to comply with its obligations under the Order in two respects. First, it maintains that, contrary to what is required by section A, clause 20(c), viagogo has failed to ensure that the deadlines by which Consumers have to submit any claim under viagogo's Guarantee are “ … Clearly and Prominently …” displayed. viagogo supplies this information by a pop-up box when a cursor is placed over an information icon at the bottom of the final review page. Although viagogo maintains that properly complies with the requirements of the Order, the CMA maintains that it does not because the definition of “ … Prominently …” in Clause 27 of the Order requires that such information must be displayed in a way that does not require the user to take any action to access the information. It maintains that by requiring a Consumer to access the information by placing his or her computer cursor over the information icon, viagogo is making the required information available only to those Consumers who take that action.
The other respect in which the CMA allege that Viagogo is in breach of the order is in relation to the requirement that it displays the Face Value of the ticket “… Clearly and Prominently …”. viagogo...
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