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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Football Association Premier League Ltd. & Ors v LCD Publishing Ltd. [2007] EWHC 3171 (Ch) (08 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2007/3171.html Cite as: [2007] EWHC 3171 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Royal Courts of Justice Strand London
		8th November 2007

MR JUSTICE WARREN:

1. This application is, in form, one where the Claimants, The Football Association Premier League Limited, Arsenal Football Club Plc and Liverpool Football Club & Athletic Ground Plc, seek to strike out paragraph 22 of the Defence which raises restraint of trade and competition issues. I will call this the competition defence for shorthand. I say in form, because Mr Cuddigan who appears for the Defendant, LCD Publishing, says that the application is in substance an application for further and better particulars of the competition defence.

2. Let me say at the outset that I do not consider in the light of everything I have heard that this is a case for strike out of the competition defence at this stage. It is, however, an appropriate case for the making of an Unless Order for further and better particulars of the competition defence in relation to those paragraphs of the various agreements, which I will come to, which are expressly referred to in the Particulars of Claim. If the Claimants still think that the competition defence should be struck out following the service of further and better particulars, they can bring this application back to the Court without the need to issue a further application. I shall now give my reasons for this decision.

3. The action concerns certain magazines published by LCDP which were devoted solely to a club or a player. "Players" are players or managers, coaches and certain other personnel of the clubs, and the "Clubs" are league clubs, namely of the FA Premier League and the Football League. The Particulars of Claim raise issues of breach of copyright, infringement of trademark and various economic torts. The competition defence relates to the alleged economic torts.

4. The structure of the Particulars of Claim is this. First it sets out the copyrights of the trademarks, then it has a section headed, "Authorised photographers and photographic agencies" - this section is central to the application before me. Then the Particulars of Claim deal first with copyright issues, then with trademark issues and then with economic tort issues.

5. Under the heading, "Authorised photographers and photographic agencies", it is explained in paragraphs 10 and 11 that authorised photographers and photographic agencies who enter into the stadia of clubs in the Premier League have at all material times been required to enter into and be subject to licence agreements. The terms of those licence agreements, hereinafter referred to as Licence Agreements, provided inter alia that such photographers and agencies would not distribute photographs taken by them or their representatives inter alia at a stadium owned, occupied or utilised by such a club for use in a magazine or periodical which, (1) was devoted solely to a single club or player and/or, (2) since 2004 used photographs to create endorsement unless one existed.

6. Then paragraph 12 continues, that the authorised agreements included, and it lists five standard form agreements, each of which has at the end of it after the identification, in brackets, "See inter alia clauses", and then it sets out the clauses relevant to that particular agreement.

7. It is then pleaded, in paragraphs 13 and 14, that since dates unknown to the Claimants the Defendant, without the Claimants permission, has been creating, had printed, imported into the United Kingdom, possessed in the course of business and/or distributed in the course of business, magazines which are devoted to individual Premier League clubs. Those magazines, (1) involved unauthorised use of photographs taken by authorised photographer at stadia owned, occupied or utilised by clubs in the Premier League - referred to as unauthorised photographs - and it refers to other matters which are not material to this application.

8. Paragraph 15 lists a number of specific allegedly infringing magazines, one of which is the Premier League Review, which LCDP says is not devoted to single clubs or players and therefore cannot fall within the economic tort claim. That might be right, and LCDP can plead it.

9. Paragraph 21 provides that the Defendant has at all material times been aware that the reproduction and use in the Defendant's magazines of photographs taken by authorised photographers without FAPL's permission involved those agencies and photographers breaching their licence agreements with FAPL. FAPL does not know all the Defendant's sources and knowledge but at trial will rely on such sources as come to light.

10. Paragraph 23 pleads that in the premises the Defendant has carried out the acts of infringement of copyright, infringement of trademark and conspiracy, knowing inducement of contract, breach of contract and/or unlawful interference set out. The Claimants do not know of all such acts of the Defendant, but at trial, and in any inquiry as to damages on account of profits, will rely upon all such acts which come to light.

11. The economic torts are pleaded at paragraph 37 and following. Paragraph 38 reads, "The licence agreements forbade the said organisation and photographers from using or permitting the use of those photographs in magazines such as the Defendants'", and 39, "The Defendant knew this to be the case and in that knowledge intentionally induced those who provided such photographs to the Defendant to act in breach of the licence agreements by supplying photographs to the Defendant's magazines, and acted in combination with them to arrange to supply such photographs". Mr Cuddigan points out that it is not pleaded that those who supplied the photographs to LCDP were bound by any of the agreements. One can see that the pleading might be said to go too far, in that it appears to assert that LCDP induced persons not bound by agreements to act in breach of them. To the extent that that is so, LCDP can plead the point and say that the tort in that respect is not made out.

12. However, the pleading goes further since it asserts that LCDP acted in combination with those who supplied such photographs, that is to say the photographers referred to in paragraph 37, namely photographs taken by photographers subject to the agreements, and this is really emphasised by paragraph 40.

13. Paragraph 43 lists the torts. They are inducing breach of contract, unlawfully interfering with the Claimants business and conspiring with individuals or organisations to obtain, for and supply to the Defendant etc.

14. Mr Cuddigan says that the Particulars of Claim, in so far as concerns the economic torts, is hopelessly deficient. That explains the terms of paragraph 22 of the Defence, which is in the following terms. "Without prejudice to the generality of the forgoing the Defendant will say that the provision in the licence agreements restricting the use of photographs are unreasonable restraints of trade and in breach of Section 2(1) of the Competition Act 1998. The particularisation of these pleas will follow upon the Defendant's identification of the contractual obligations they rely upon". That was a pleading dated 9th July 2007.

15. He accepts that further particulars of the competition defence need to be given at some stage, but he says he cannot plead to the economic tort claims until they are properly pleaded, and that as a matter of sensible case management he should not be obliged to give particulars of his competition defence until the Claimants have made their case clear.

16. Before addressing his complaints, I should record three points which are relevant to the exercise of my discretion. First, LCDP has not made any application for the provision of further particulars, and indeed appears to have pleaded fully to the Particulars of Claim other than the competition issues. Secondly, an order for directions was made by Master Price on 31st July 2007. Part of his order, paragraphs 7 and 8, record that witness statements be exchanged by 17th December of this year, and that no expert evidence being necessary no party has permission to call or rely on expert evidence. If a competition claim is to go forward, it may very well be that expert evidence will be necessary. It is therefore a matter of some importance and urgency that this aspect of the case should be dealt with. That is a submission Mr Hoskins makes and it is one I agree with. I understand that the trial window is set for June 2008.

17. The third point is that in their response, dated 27th September 2007, to the Claimants' request for further information, LCDP say in relation to paragraph 22, "As far as details of the Defendant's case on restrain of trade and breach of the Competition Act 1998 will follow the Claimants identification of the contractual obligations they rely on". I should mention that LCDP has, since that response, refused requests in correspondence to explain its competition defence. The reasons for this refusal have been various and shifting. Firstly it was said that the contractual provisions relied on were not set out; the response to that was that the agreements were indeed scheduled to the Particulars of Claim and the specific paragraphs were referred to, and warning was given that a strike out was being considered. Since Mr Cuddigan still relies on this point I shall deal with it now.

18. At least until the hearing before me, LCDP had no assurance that the Claimants were relying only on the pleaded agreement and the clauses specifically mentioned. That indeed was what the pleading says since paragraph 12 refers to the pleaded agreements, including those set out, and introduces the clauses relied on with the words inter alia, as I have already explained. It has now been explained by Mr Hoskins, who appears for the Claimants, that these are the paragraphs relied on and that inter alia was included to make clear that other provisions, in particular definitions, incorporated by reference, were also relied on. One might be forgiven for not appreciating that, and indeed Mr Hoskins himself had to confirm the position with those on his side before confirming it to me. I make clear, however, that if the Claimants wish to rely on any other agreements or paragraphs they should do so only if they amend their pleading to do so, something for which they will need permission. This deals with Mr Cuddigan's points on the possibility of further agreements, the possible reliance on different provisions and the severance of different parts of the agreements.

19. LCDP next raised, having apparently abandoned the first reason, a new objection that the Particulars of Claim do not specify which of the photos or infringements are supposed to be a breach of which agreement. No request, however, has been made for further information of that, and it would be difficult for the Claimants to give it since they do not know which source is responsible for which photographs. Indeed, part of the relief sought, at paragraph 4 of the prayer for relief, is for disclosure of the names and addresses and other contact details of those from whom the Defendant obtained the photographs complained of. It might be thought surprising that the Claimants have not already sought that information at an interim stage, but that is a matter for them.

20. Whatever the position is in relation to that, I do not see its relevance to the application before me. If LCDP wish to raise the competition defence in relation to specified provisions in specified agreements, I do not understand why they need to know which photos breach which agreements in order to do so. I suppose it could be said that unless and until that information is provided, it may be that certain clauses are not alleged to be breached, and that it would therefore be a waste of time to prepare the competition defence in relation to those clauses. I do not think that would be a realistic approach. The agreements clearly raised generic competition law issues which it would be necessary to address, whichever photographs breach whichever particular provisions of whichever agreement.

21. Next, Mr Cuddigan says that the pleadings in the Particulars of Claim do not tally with the terms of the agreements. It is true that the pleader has not precisely followed the wording of the agreements in formulating his pleading. It would be impossible to do so given that the wordings of the different agreements vary and the pleader does not know which photographs came from which source, and therefore which agreement is infringed. But to my mind the sense of the pleading is clear. It is certainly a sufficient pleading not to be struck out as disclosing no cause of action, albeit that LCDP may well be entitled to further information if it seeks it.

22. A detailed complaint is that some, at least, of the agreements contain a "reasonable endeavours" provision on the part of the licence holder not to allow publication. The pleading is unclear in whether it relies on that aspect of the agreement. Mr Cuddigan says that he cannot formulate a Defence properly on the Particulars of Claim as it stands. That again, it seems to me, if it is a good point, is a matter for further particulars.

23. In essence, he says that the Particulars of Claim are defective, contradictory and obscure. I do not agree. They may be short on detail and particulars in some respects; further information can be sought. These alleged deficiencies have not prevented a Defence being served.

24. In the light of this, I do not consider that there is any further information which LCDP needs before it is able to give particulars of its competition defence in relation to the pleaded paragraphs of the pleaded agreements. In my judgment, it would not be correct to delay provision of those particulars until after the provision of such further particulars of the Particulars of Claim, as LCDP may formally request and to which they are able to establish that they are entitled.

25. Master Price's order requires witness statements. The Claimants need to know now what they have to meet in relation to the competition defence. It may be that they will, contrary to the understanding of the Master, need expert evidence which is not uncommon in cases of this nature, in which case a variation of his order will have to be applied for.

26. I do not consider that I should strike out the competition defence at this stage, but should allow LCDP the opportunity to give particulars. Mr Hoskins has referred me to a number of cases, to which I do not think it is necessary to refer other than by name - this judgment already being long enough - Parkes -v- Esso Petroleum, the decision of the Chancellor in P & S Amusements -v- Valley House Leisure Limited, and I have also been referred to Sandvik, the decision of Mr Justice Neuberger on 31st March 1999. The first two of those case did concern applications to amend pleadings, but they do not answer the question in the present case, or indeed give me much assistance because they deal with a different aspect - at the end of the day the underlying defence was thought to be useless, ineffective, so that the amendment was not allowed.

27. I do not, in any way, dissent from the submission which Mr Hoskins makes, which follows from those three cases, that competition defences of this nature will need to be fully and properly pleaded, for the reasons given in the various judgments. But none of them establish that it would be right in a case such as this, where there is adequate time to deal with the preparation on this issue before the date of trial, to allow particulars to be given. In my view it would be entirely contrary to the overriding objective to shut out this issue, which is clearly of importance.

28. Mr Hoskins says that LCDP has had ample opportunity to deal with it. First of all it could have done so in the further and better information given in September, secondly it could have given it in response to the two letters which passed - or e-mails - in October, and now on this application, where Mr Cuddigan, he complains, has not even come to this Court with a draft of the amendment which he would wish to make. That is all true, but nonetheless I consider that justice would be done by allowing one last chance pursuant to an Unless Order, and this is particularly so given that it was only at this hearing that the pleading was explained in relation to the inter alia provision which I have mentioned, and the reliance on only the agreements which are pleaded.

29. For those reasons I dismiss the application as it stands, but I will make an Unless Order for the provision of particulars.