The Racing Partnership Ltd & Ors v Sports Information Services Ltd

Misuse of short‑lived, time‑critical compilations of raceday information may be protected by the equitable doctrine of confidentiality where the controller of the information exercises effective control over its dissemination; by contrast, liability for conspiracy to injure by unlawful means does not require that the conspirators knew as a matter of law that the means were unlawful, although knowledge of the material facts that make the means unlawful is required and the unlawfulness must be the instrument by which the claimant’s loss is inflicted.

(1) Disposition: The majority (Arnold LJ and Phillips LJ) dismiss SIS’s appeal with respect to misuse of confidential information in relation to the pleaded "Key Raceday Triggers" and allow TRP’s cross‑appeal in part on unlawful‑means conspiracy (to the extent the unlawful means comprised misuse of confidential information and SIS’s breaches of the Exchanges’ terms); Lewison LJ would have allowed SIS’s appeal and dismissed TRP’s cross‑appeal (dissent). (2) Applicability of Arena terms: The Arena Terms did not bind the Tote; the Tote’s permission to be on course was limited to the purpose implicit in its historical licence (pool betting) and it was therefore a trespasser insofar as it supplied data for fixed‑odds betting beyond that licence. (3) Confidentiality: During the short, commercially‑valuable time window prior to (and just after) a race start/finish, the Key Raceday Triggers (non‑runners, withdrawals, off, results and related items) had the necessary quality of confidence because Arena controlled dissemination and exclusive exploitation rights were granted to TRP; a compilation of such items was at least confidential even if individual items might be borderline. (4) Acquisition in circumstances importing confidence: SIS had notice of the relevant facts (including that the Tote had no contractual entitlement to supply the data for fixed‑odds use) and, notwithstanding warranties from the Tote, a reasonable recipient would have appreciated the confidential nature of the Key Raceday Triggers; accordingly from January 2017 SIS was bound by an equitable obligation of confidence. (5) Unlawful‑means conspiracy: The majority concluded that knowledge that the means were unlawful is not a required element where the means are unlawful (the appropriate focus is whether there is “no just cause or excuse” for combining to use the means), and that breaches of the Exchanges’ terms could amount to relevant unlawful means where they are the instrument by which the claimant’s loss is caused. Arnold LJ and Phillips LJ therefore allowed TRP’s appeal in part; Lewison LJ dissented, preferring a rule requiring knowledge of unlawfulness for private‑right breaches.