British Horseracing Board Ltd & Ors v William Hill Organization Ltd

Under Directive 96/9/EC, investment relevant to the sui generis database right must concern obtaining existing independent materials or verifying their accuracy after collection. Investment used to create the materials later collected does not qualify. An official list of runners and riders therefore falls outside the right where compiling and checking the list creates the official information. The court must apply the European Court’s legal characterisation of the facts and cannot avoid it by decomposing the final database into earlier stages of data collection. Questions about extraction of a substantial part and repeated small takings arise only if a qualifying database right exists.

William Hill appealed from Laddie J’s decision of 9 February 2001, reported at [2001] RPC 31 and [2001] EWHC 516 (Pat.). The claimants asserted a sui generis database right in BHB’s extensive racing database. The Court of Appeal referred European-law questions to the ECJ under Article 234 of the Amended Treaty of Rome. The ECJ Grand Chamber answered in Case C-203/02, [2005] RPC 260. The central issue was whether investment in compiling provisional and final lists of runners and riders constituted obtaining or verifying existing information, or instead created the official data appearing in the database.

Appeal allowed unanimously. Jacob LJ gave the first judgment at the request of Pill LJ. Pill LJ agreed with Jacob LJ, and Clarke LJ agreed with both judgments.

1. Article 7(1) of Directive 96/9/EC distinguishes investment in obtaining or verifying database contents from investment in creating the materials subsequently collected. Obtaining concerns seeking out existing independent materials and collecting them. Verification concerns monitoring the accuracy of collected materials. Resources used to create the materials do not count as investment in obtaining or verifying contents.
2. The ECJ was entitled to determine the legal consequences or legal characterisation of established primary facts. The domestic court remained the fact-finding tribunal. The ECJ had received detailed information and full submissions about the BHB process, so there was no sufficient basis for alleging a factual misunderstanding. The principle was consistent with Traunfellner and Arsenal v Reed.
3. The relevant database was the final official list, not an artificially separated sequence of earlier stages. BHB’s official approval gave the list unique information beyond a mere collection of pre-existing material. The selection, recording and checking of horses created the data forming the list, rather than obtaining or verifying existing database contents. The same reasoning applied to provisional lists published before final declarations.
4. The lists consequently fell outside the sui generis right. It was unnecessary to determine whether William Hill had extracted or re-utilised a substantial part, or had taken small but regular portions contrary to Article 7(5). Applications to amend the pleadings and adduce further evidence were not determined because the ECJ ruling covered the position even if they were allowed.

1. Court of Appeal (Civil Division) (2005). Applied the ECJ’s ruling and allowed William Hill’s appeal from Laddie J’s decision.
2. ECJ (Grand Chamber) (2004). Answered the referred questions in Case C-203/02, reported at [2005] RPC 260.
3. Court of Appeal (Civil Division) (2001). Indicated that it was inclined to support the High Court judgment but referred questions of European-law interpretation to the ECJ, in [2001] EWCA Civ 1268.
4. High Court (Chancery Division). Laddie J gave judgment on 9 February 2001, reported at [2001] RPC 31 and [2001] EWHC 516 (Pat.).