Sky Plc & Ors v Skykick, UK Ltd & Anor

An appellate court may have jurisdiction to entertain an appeal against an interim order referring questions to the CJEU where domestic appellate powers enable it to assume responsibility for the whole proceedings. That jurisdiction does not require permission to be granted at an interlocutory stage. Where the lower court considers the reference necessary and has not completed its factual findings, early intervention may create procedural complexity, wasted costs, delay, remittal and further appeals. The appropriate course is generally to allow the reference to proceed and consider any appeal after the final outcome.

Sky appealed from judgments of Arnold J in proceedings concerning passing off, trade mark infringement and the validity of registered trade marks. The High Court referred five questions of EU law to the CJEU and made no final order on the claims: [2018] EWHC 155 (Ch). Sky sought permission to challenge the judge’s approach, together with contingent applications for a stay of the reference and an expedited hearing. The central issues were whether the Court of Appeal had jurisdiction to intervene before the reference was answered and, if so, whether permission should be granted at that interim stage.

Floyd LJ gave the reasons, with Kitchin LJ agreeing. The application for permission to appeal was refused.

1. Jurisdiction. Under domestic appellate procedure, including CPR 52.20(1), the Court of Appeal has the powers of the lower court. It could therefore decline the reference and give final judgment if the appeal brought the entire proceedings before it. The principle stated in Cartesio C-210/06 ([2009] Ch 354) did not prevent the appeal. That principle concerned an appeal limited to the reference order where the proceedings remained pending before the referring court, which would then be compelled to proceed without the benefit of a reference it considered necessary.
2. Exercise of jurisdiction. The existence of jurisdiction did not mean that permission should be granted. The litigation remained at an interim stage. Arnold J had not made all relevant factual findings, and several outcomes were possible if the appeal proceeded without a comprehensive determination of the whole dispute. An early appeal could cause wasted costs, delay, procedural complexity, remittal to the High Court and a further appeal.
3. The better course was to allow the CJEU reference to take its course and, if necessary, hear an appeal when the final outcome was known. The argument that the High Court’s approach created uncertainty for industry did not justify premature intervention. The applications for a stay and expedition therefore did not arise.

1. Court of Appeal (Civil Division): Permission to appeal refused. The court held that it had jurisdiction to entertain an appeal at the interim stage but should not exercise it before the CJEU reference and High Court proceedings had run their course. [2018] EWCA Civ 2004.
2. High Court of Justice, Chancery Division: Arnold J made findings on the trade mark claims, referred five questions of EU law to the CJEU and made no final order on the proceedings. [2018] EWHC 155 (Ch).