Jobserve Ltd v Network Multimedia Television Ltd

At the interim-injunction stage, whether conduct amounts to abuse of a dominant position is ordinarily a complex question of mixed fact and law for trial. A refusal-to-deal case is not necessarily governed by the essential-facilities reasoning in Oscar Bronner v Mediaprint where the claimant seeks no access to the dominant undertaking’s facility and operates its own competing service. Conduct directed at existing customers may arguably restrict competition even though the dominant undertaking has not denied the competitor direct access to its facilities. The court should avoid deciding the relative merits of the abuse arguments where the claimant’s case is seriously arguable and the balance of justice supports interim relief.

Network Multimedia Television Ltd operated an internet job board and had agreed with ATSCo to establish a competing recruitment website. Jobserve Ltd operated a dominant job-board service and informed agencies that advertising on the ATSCo website would result in their exclusion from Jobserve’s service.

Network obtained an interim injunction in the Chancery Division. The deputy High Court judge held that there was a serious question to be tried both as to dominance and as to abuse under section 18 of the Competition Act 1998, and that the balance of justice favoured the injunction. Jobserve appealed only on the abuse issue, contending that Oscar Bronner v Mediaprint conclusively defeated Network’s claim.

1. Appeal dismissed. The court upheld the interim injunction. Network’s case that Jobserve had abused, or threatened to abuse, a dominant position was seriously arguable.
2. Abuse of a dominant position under section 18 of the Competition Act 1998 is generally a complex question of mixed fact and law. It should ordinarily be determined at trial on tested oral and documentary evidence and rival submissions, rather than summarily on an interim-injunction application.
3. The court was not persuaded that Oscar Bronner v Mediaprint necessarily disposed of the claim. That decision could be treated as an essential-facilities case, where access to the dominant undertaking’s facility is indispensable because no actual or potential substitute exists. Network did not seek access to Jobserve’s facilities or services. It operated its own website offering a competing service.
4. It was reasonably arguable that Jobserve’s conduct differed materially from a refusal to provide a competitor with access. Jobserve was threatening existing ATSCo customers with withdrawal of an existing service if they used Network’s competing service. The conduct could therefore be viewed as using a dominant position to destroy, distort or restrict competition and to perpetuate that dominance.
5. The court declined to assess the relative strength of the competing abuse arguments. It was sufficient that the case was seriously arguable and that the balance of justice favoured interim relief. The appeal was dismissed, with costs assessed at £14,000, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal from the order of Mr Peter Whiteman QC, sitting as a deputy High Court judge in the Chancery Division, made on 5 April 2001. The appeal was dismissed.