The Racing Partnership Ltd & Ors v Sports Information Services Ltd

An equitable obligation of confidence depends on what a reasonable person in the recipient’s position would understand. A reputable supplier’s contractual warranty of entitlement to supply information is the starting point. Clear countervailing indications are required to override that assurance. Commercial value alone does not make publicly accessible information confidential.

Unlawful means conspiracy requires knowledge of the facts making the means unlawful, but does not require knowledge of their unlawfulness. The unlawful conduct must be instrumental in intentionally causing the claimant’s loss. Breaches of contracts with third parties can satisfy that requirement where unlawfully obtained information supplies the means of competing with the claimant.

The Racing Partnership Ltd supplied live betting and horseracing information under exclusive arrangements with racecourse owners. Arena Leisure Ltd owned six relevant racecourses. Sports Information Services Ltd had previously held the corresponding rights, but its agreement expired when the Racing Partnership’s rights began.

Sports Information Services continued supplying bookmakers with betting shows and race information. It obtained pricing information in admitted breach of betting exchanges’ contractual terms. It obtained race information from Tote (Successor Company) Ltd, which operated pool betting services at the racecourses. The Tote gave contractual warranties that it was entitled to supply the information. The challenged arrangements enabled Betfred and Ladbrokes to resist contracting with the Racing Partnership.

Following trial, Zacaroli J upheld the confidentiality claim but dismissed the other disputed claims: [2019] EWHC 1156 (Ch), [2020] Ch 289. Sports Information Services appealed against confidentiality liability. The Racing Partnership cross-appealed against dismissal of unlawful means conspiracy. The principal questions concerned objective notice of confidentiality, contractual restrictions on the Tote, knowledge of unlawfulness and the connection between unlawful conduct and loss.

1. Sports Information Services’ appeal was allowed, Lewison and Phillips LJJ forming the majority. The Racing Partnership’s cross-appeal was allowed in part, Arnold and Phillips LJJ forming the majority. The conspiracy claim succeeded insofar as the unlawful means consisted of the Tote’s misuse of confidential information and Sports Information Services’ breaches of the betting exchanges’ terms.

2. On confidentiality, the agreed test concerned what a reasonable person in the recipient’s position would understand. Lewison and Phillips LJJ held that the starting point was the reputable supplier’s assurances and express contractual warranty of entitlement to supply the information. Clear countervailing indications were required to override those assurances. The trial judge had instead started with his own legal analysis and asked whether the warranty displaced it. Sports Information Services had investigated the position and was not bound by an equitable obligation of confidence.

3. The pleaded confidentiality claim concerned only the Key Raceday Triggers. Additional information could not expand that claim. The majority declined to make detailed findings about those triggers which the trial judge had not made. Information available to television viewers in real time could not individually be confidential merely because it had commercial value. A compilation could nevertheless have confidentiality. Arnold LJ dissented: he considered the information inaccessible within the commercially relevant period and regarded the known circumstances as sufficient notice despite the assurances.

4. The Tote’s implied licence permitted entry for pool betting purposes. Collection and distribution for fixed-odds betting exceeded that licence and constituted trespass to that extent. The Tote was not contractually bound by the general entry conditions. Its conduct could not constitute acceptance of an offer permitting the very activity those conditions prohibited. Nevertheless, its limited permitted use supported an equitable obligation which it breached by supplying information for fixed-odds betting.

5. Arnold and Phillips LJJ held that knowledge of unlawfulness was unnecessary for unlawful means conspiracy. Knowledge of the facts making the conduct unlawful was required. Belmont Finance Corp v Williams Furniture Ltd (No 2), [1980] 1 All ER 393, governed that question. Lewison LJ dissented, considering knowledge of unlawfulness necessary where private rights were infringed.

6. The unlawful means had to be instrumental in intentionally causing loss, rather than merely incidental to it. Independent actionability against the claimant was unnecessary. Unlawfully obtaining pricing information supplied the very means of competing with the Racing Partnership. The majority distinguished the hypothetical speeding delivery business. Lewison LJ disagreed with that distinction. The cross-appeal failed insofar as it relied on alleged breaches of the racecourse entry conditions.

• Court of Appeal (Civil Division): [2020] EWCA Civ 1300 . Allowed Sports Information Services’ appeal against confidentiality liability. Allowed the Racing Partnership’s cross-appeal on conspiracy insofar as it concerned the Tote’s misuse of confidential information and breaches of the betting exchanges’ terms. Rejected reliance on alleged breaches of the racecourse entry conditions.
• High Court, Chancery Division: Zacaroli J, [2019] EWHC 1156 (Ch) , [2020] Ch 289. Following trial, upheld the disputed confidentiality claim and dismissed the other disputed claims, including unlawful means conspiracy.