British Horseracing Board Ltd & Ors v William Hill Organization Ltd

A court of appeal that is not a final court should ordinarily refer a critical question of Community-law interpretation to the European Court of Justice. It may decide the question itself only where the answer is obvious, there is no reasonable doubt, and the answer is equally clear to the courts of other Member States and the European Court. The absence of an ECJ ruling, differing approaches elsewhere and the wider importance of the database-right questions meant that the issue was not acte clair. A reference was therefore directed. The injunction was discharged pending the reference and final determination because a conditional licence removed any present threat of infringement, subject to renewed protection if a threat arose.

The British Horseracing Board, the Jockey Club and Weatherbys claimed that William Hill infringed the sui generis database right by using racing information received through SIS on its internet service. Laddie J held that the information derived from the BHB database and that the use amounted to extraction and re-utilisation of a substantial part under Article 7(1), alternatively repeated and systematic extraction of insubstantial parts under Article 7(5). He granted a permanent injunction.

On appeal, William Hill challenged derivation, substantiality, extraction, re-utilisation and the treatment of a constantly updated database under Article 10(3). It also sought a reference under Article 234 of the Treaty of Rome. The central issue was whether the Directive could be interpreted with sufficient confidence without a reference.

Disposition. The court did not finally determine the substantive interpretation of the database-right provisions. It directed a reference of questions to the European Court of Justice and discharged the permanent injunction pending the reference and the eventual resolution of the appeal.

1. Evidence of derivation. The court rejected William Hill’s technical challenge to the finding that the information received from SIS derived from the BHB database. Evidence showed that information about declared runners was entered into the database and that the database computer produced the lists supplied to services such as SIS. The question whether simultaneous creation and publication of a list fell within the Directive remained one of interpretation.
2. Reference test. As the Court of Appeal was not a court of last instance, it had a discretion whether to refer. Applying the approach in CILFIT v Ministry of Health [1982] ECR 3415 and R v International Stock Exchange, ex p. Else Ltd [1993] QB 534, a critical Community-law question should ordinarily be referred unless the court can resolve it with complete confidence, without reasonable doubt, and the answer is equally obvious to courts in other Member States and the ECJ.
3. Application. The court could not meet that standard. There was no ECJ ruling, decisions in other Member States appeared to take a narrower approach, and the questions were of wide importance. Counsel were directed to co-operate on the form of the reference, with a further hearing if necessary.
4. Injunction. William Hill had taken a conditional licence, was a substantial company and presented no apparent present threat of infringement. The claimants remained protected by the licence and could return to court if a threat emerged. The injunction was therefore unnecessary pending final determination.

• Court of Appeal (Civil Division) — Directed a reference to the European Court of Justice, discharged the injunction pending the reference and left the substantive appeal to be resolved after the ECJ’s answers.
• High Court, Chancery Division — Laddie J upheld the claim, granted a permanent injunction, directed an inquiry as to damages and ordered William Hill to pay the claimants’ costs.