Bookmakers' Afternoon Greyhound Services Ltd & Ors v Amalgamated Racing Ltd & Ors (No 2)

Parallel conduct by competitors does not, without more, establish an unlawful agreement or concerted practice. The court must assess the evidence as a whole, including circumstantial evidence, while excluding legitimate industry discussions and public statements that do not lessen uncertainty about competitors’ future conduct. A concerted practice may be inferred from coincidences and indicia where, taken together, they admit no other plausible explanation. However, the burden remains on the claimant to prove the alleged coordination on the balance of probabilities. Independent commercial decisions remain permissible, including intelligent adaptation to existing or anticipated competitor conduct.

The judgment concerned the remaining parts of a counterclaim following an earlier judgment in the same action. The defendants alleged that bookmakers had engaged in unlawful concerted practices contrary to Article 81 of the EC Treaty and section 2(1) of the Competition Act 1998.

One allegation concerned an alleged boycott of Turf TV by Coral, Ladbrokes, William Hill and BetFred. The other concerned alleged coordinated withdrawal of sponsorship from racecourses associated with AMRAC. The court considered extensive circumstantial evidence, parallel conduct, industry-body discussions, public statements, meetings and communications.

1. The counterclaim was dismissed. The evidence did not establish, on the balance of probabilities, that the relevant bookmakers had colluded either to boycott Turf TV or to coordinate the withdrawal of sponsorship.
2. The court accepted that unlawful collusion may be secret and may need to be inferred from fragments of documentary and circumstantial evidence. Individual items may be sufficient in an appropriate context, and the evidence must be assessed both separately and collectively.
3. That approach did not permit legitimate conduct to be treated as evidence of unlawful coordination. Participation in industry bodies, or discussions concerning the interests of BAGS or SISH, was not itself unlawful. The absence of minutes did not prove that collusion had occurred.
4. Public statements by bookmakers concerning their opposition to Turf TV could not, without other relevant conduct, establish an unlawful concerted practice. A competitor was entitled to take account of public statements and adapt intelligently to existing or anticipated conduct.
5. Although the bookmakers had opportunities and motives to coordinate, and had displayed parallel conduct in delaying subscriptions to Turf TV and withdrawing some sponsorship, those matters were also consistent with independent commercial decisions. BetFred’s conduct, including the connection between its SIS FACTS contract and the share transaction involving Mr Done, did not establish coordination with the other bookmakers.
6. The general and specific matters relied on by the defendants, even taken in combination, were insufficient to justify rejecting the substantially credible evidence of the bookmaker witnesses. Issues of causation and the suitability of relief therefore did not require determination.

The judgment was a second judgment in the High Court proceedings. It dealt with two counterclaims left undecided by the court’s earlier judgment handed down on 8 August 2008. No appeal history was stated.