A High Court decision on 15 July 2005 in the case of Attheraces Limited (ATR) v The British Horseracing Board (BHB) demonstrates that litigation in the English courts based on alleged breaches of competition law is alive and well. The case shows how competition law can be used contentiously to gain advantage in commercial negotiations, in this case to force the hand of an allegedly dominant supplier.
Background to the case
BHB manages the British horseracing industry and compiles horseracing data including details about each race, known as "pre-race data". BHB licenses this data to third parties by supplying the data to an unrelated company (PA) which then on-licenses the data. ATR took a licence of pre-race data via PA, but also entered into negotiations with BHB for a direct licence of data. Negotiations ran into difficulty when the European Court of Justice (ECJ) declared, in a different case, that BHB had no "database rights" in respect of its pre-race data. BHB then threatened to stop PA from supplying pre-race data to ATR unless the direct licence between BHB and ATR was agreed and certain alleged payment arrears were cleared.
ATR then lodged a claim in the High Court against BHB on the basis that BHB has a dominant position in the market for the supply of pre-race data and that BHB's threat was an abuse of dominance contrary to the UK Competition Act 1998 and Article 82 EC Treaty. ATR also alleged that the fees for the licence were excessive, unfair, unreasonable and discriminatory and in themselves abuses of BHB's dominance.
ATR sought from the Court a declaration that BHB could not require ATR to enter into the direct data licence as a condition of obtaining a continued supply of pre-race data. ATR also sought an injunction preventing BHB from effectively cutting off its data supply.
Having had a similar claim already struck out, BHB tried to do the same with ATR's claim. But the Court rejected BHB's application. ATR had made out a detailed claim as to BHB's dominance and as to its abusive conduct. This, the Court considered, raised substantial and complex issues of fact and law which required consideration at a full trial (and which could require a reference to the ECJ).
The Court also granted ATR an interim injunction requiring BHB to continue to provide pre-race data. It accepted ATR's arguments that without an order from the Court, BHB would cut off supply to ATR and that money alone would not be adequate compensation. It was not all plain sailing for ATR. The Court required it to place in escrow, a sum of money equal to the minimum sum for which it would be liable in damages if it were to lose its action. The case has been set down for full trial on 17 October 2005, for a speedy resolution of the issues raised.
In response to BHB's notification of its racing rules, the OFT is also seeking commitments from BHB to license users of its database (a commercial practice which survives the ECJ's judgment) in an open, non-discriminatory and non-exclusive manner and to charge fair market prices.
