Football Dataco Ltd & Ors v Brittens Pools Ltd & Ors

An appellate court reviewing a case-management discretion conducts a review, not a rehearing. It should intervene only where the first-instance judge erred in principle, failed to consider a material matter, or reached a decision outside the generous ambit of reasonable disagreement.

A preliminary issue is suitable where it is decisive or potentially decisive, usually concerns law, can be tried on agreed or assumed facts without significant delay, and is ordered following a case-management conference. The court may take account of the parties’ differing resources, the likely consequences of delay, and the possibility that resolving one issue will dispose of substantial parts of the litigation.

The claimants brought three consolidated intellectual-property actions concerning alleged copyright and database-right infringement in football fixture lists and live match data. Following a case-management conference, Master Bragge ordered the fixture-list subsistence issue to be tried as a preliminary point, stayed the live-data issues, and directed that the common fixture-list issue be tried together.

The claimants appealed, contending that the Master had failed to account for delay, wrongly considered the position of the smaller defendant, and failed to make directions for the later live-data trial. They also relied on the possible significance of the European Court of Justice’s Fixtures Marketing decisions and section 3A(2) of the Copyright Designs and Patents Act 1988. The central issue was whether the Master had made a serious error in exercising his case-management discretion.

1. Appeal dismissed. The appeal was by way of review and not rehearing. The judge had to determine whether Master Bragge had gone seriously wrong, erred in principle, or failed to apply the overriding objective under Parts 1 and 3 of the Civil Procedure Rules 1998. The possibility that the appellate judge might have selected a different case-management solution was insufficient.
2. The position of Brittens, a relatively small business facing substantial intellectual-property litigation, was a relevant consideration. The Master was entitled to take it into account, notwithstanding the claimants’ suggestion that the defendants might be supported financially by others.
3. The fixture-list subsistence issue was a suitable preliminary issue. It had a binary outcome, was common to all three actions, and was decisive or potentially decisive of substantial parts of the litigation. If the claimants failed, two actions would be dismissed and the remaining claim would be confined largely to live data. If they succeeded, judgment could follow against most defendants, subject principally to Yahoo’s additional defences.
4. The guidance in McLoughlin v Jones [2002] QB 133 was satisfied. The issue concerned the subsistence of rights, involved questions of law notwithstanding factual elements, could be tried on agreed or assumed facts, and had been ordered following a case-management conference. The expected trial window did not constitute significant or unacceptable delay.
5. The possible European Court of Justice references did not require the fixture-list and live-data issues to be heard together. Separate references could be made, and the effect and timing of any reference remained uncertain. The appellate court was therefore not materially better placed to redesign the order or give immediate directions for the live-data trial.

1. High Court (Chancery Division): Master Bragge gave judgments following a case-management conference on 23 July 2009 and in October 2009, culminating in directions dated 2 October 2009. He ordered the fixture-list subsistence issue to be tried as a preliminary point, stayed the live-data issues, and consolidated the actions.
2. High Court (Chancery Division): The appeal against those case-management directions was dismissed.