The Football Association Premier League Ltd v QC Leisure & Ors

Summary judgment is appropriate only where the opposing party has no real prospect of success and there is no other compelling reason for a trial. A defence involving materially arguable questions of European competition law, the scope of territorial broadcasting restrictions and the effect of later legislative developments should not be summarily determined. The reasoning in Coditel II was confined to the mere grant of an exclusive territorial licence and did not clearly govern contractual obligations requiring prevention of the use of decoder cards outside the licensed territory. Related copyright, free-movement and competition issues should generally be managed together where they may require a common reference to the Court of Justice.

The claimant brought three related actions concerning the supply and use in the United Kingdom of non-UK decoder cards for foreign satellite broadcasts of Premier League matches. It alleged infringement under sections 298 and 299 of the Copyright Designs and Patents Act 1988, together with traditional copyright infringement.

The defendants relied on Article 81 of the EC Treaty, contending that contractual territorial restrictions imposed on foreign broadcasters were void. The claimant sought summary judgment on that defence under CPR rule 24.2, alternatively a stay until the principal copyright issues had been tried. The disclosure applications were stood over.

1. Summary judgment. The principles stated in Celador Productions Limited v Melville [2004] EWHC 2362 (Ch), and approved in Doncaster Pharmaceuticals Group Limited v The Bolton Pharmaceutical Company 100 Limited [2006] EWCA Civ 661, applied. The applicant had to show that the defence had no real prospect of success. The court could not conduct a trial on documents without disclosure or cross-examination.
2. Coditel. The scope of Coditel II [1982] ECR 3381 was narrow. It addressed the mere grant of an exclusive territorial exhibition licence. The clause relied on here imposed additional obligations requiring the foreign broadcaster to procure that decoder cards were not authorised or enabled for use outside its territory. The court was not satisfied that such obligations were clearly covered by Coditel II. The defendants’ arguments were neither fanciful nor merely arguable.
3. The significance of the decoder cards, the nature of the rights involved, the distinction between the Coditel broadcasts and the present alleged single broadcast, and the reasoning in Nungesser and Another v EC Commission [1983] 1 CMLR 278 required fuller consideration. The later Community legislation on satellite broadcasting, television broadcasting and conditional access also indicated that the legal landscape had materially developed.
4. The Article 81 defence was therefore a legitimate subject for trial. The application for summary judgment was refused.
5. Stay. The competition issues should not be separated from the other European-law issues. They could involve overlapping questions and might require a reference under Article 234 of the EC Treaty. The contractual prohibition was also potentially integral to both the copyright and decoder-card claims. The decision in Intel v VIA [2003] UKCLR 106 was distinguishable because the competition issues there were more free-standing and validity issues had first to be determined. The alternative application for a stay was refused.