Football Association Premier League Ltd & Ors v QC Leisure (A Trading Name) & Ors

Under Civil Procedure Rules 1998, r 19.2(2)(a), a person may be joined where joinder is desirable to enable the court to resolve all matters in dispute. The provision does not require an issue between the proposed party and an existing party. In a case involving a reference to the ECJ, the court may join additional parties solely to enable them to make submissions on the reference, provided the jurisdictional requirement is met and the discretion is exercised consistently with fairness, proportionality, expedition and the effective conduct of the reference. Procedural disadvantages to existing parties may be addressed by conditions concerning advance disclosure of observations, limits on oral submissions and costs.

The claimants brought proceedings concerning the marketing, licensing and broadcasting of football programming rights in the European single market. Following a preliminary reference to the ECJ, UEFA, Sky, Setanta, GCP and the MPA applied under Civil Procedure Rules 1998, r 19.2, to be joined as claimants solely so that they could participate in the reference. They sought no additional relief and did not intend to participate actively after the ECJ answered the referred questions. The defendants challenged the court’s jurisdiction and opposed joinder on procedural fairness, burden, delay and costs grounds.

1. The applications were granted. Each applicant was joined as a claimant solely for the purpose of making submissions to the ECJ, subject to conditions.

2. Under Civil Procedure Rules 1998, r 19.2(2)(a), the court may add a person where it is desirable to do so in order that the court may resolve all matters in dispute. Unlike r 19.2(2)(b), paragraph (a) does not require an issue involving the proposed party and an existing party. Once that jurisdictional threshold is met, the court has a wide discretion.

3. The relevant question was whether the ECJ would be assisted by submissions from each applicant. The importance of the questions referred, and the applicants’ distinct perspectives as governing body, broadcasters and rights-holders, made joinder desirable.

4. The preliminary reference procedure did not permit private interventions before the ECJ. That did not prevent joinder under national procedural law. The court had to exercise its discretion consistently with the duty of sincere co-operation under Article 10 EC and the overriding objective.

5. The defendants’ procedural disadvantages could be mitigated. Each applicant was required to give 28 days’ advance notice of intended written observations and to limit oral submissions to 15 minutes, subject to any contrary direction by the ECJ. The applicants were not to seek their participation costs from the defendants. UEFA agreed to pay additional costs occasioned by its application; the other costs issues could be addressed after the reference.

6. The court considered that the additional burden and possible delay imposed on the ECJ did not outweigh the value of giving the applicants a voice on questions of fundamental importance to the European single market. Liberty to apply was granted concerning modification of the notice condition if accelerated procedure was adopted.

The judgment records that the ECJ reference followed an earlier judgment of this court dated 24 June 2008. No appellate history is stated.