BHB Enterprises Plc v Victor Chandler (International) Ltd: ChD 27 May 2005

The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its rights to prevent unauthorised extractions or utilisations of the database. Allegations were made that it had sought to abuse its dominant position, and to make excess profits. After the decision in the ECJ, the defendant bookmakers believed that the claimant had no continuing right to restrict use of the data, and ceased to make payments under its licences.
Held: The proposition advanced by the defendant was startling, and failed. The defendant remained bound by the licence whether or not the claimant had the right to control the use of the data. The defendant had acknowledged the claimant’s rights in the contract. The right to refuse to provide the data was separate from the requirement that there be copyright or other arrangements between the customer and the licensor. A non-challenge provision did not seek to oust the jurisdiction of the court, and was not void or unenforceable. As to the assertion of abuse of dominant position ‘we still live in a free market economy where traders are allowed to run their businesses without undue interference. What Article 82 and section 18 of the Act are concerned with is unfair prices, not high prices. In determining whether a price is unfair it is necessary to consider the impact on the end consumer and all of the market conditions. In a case where unfair pricing is alleged, assessment of the value of the asset both to the vendor and the purchaser must be a crucial part of the assessment.’

Laddie J
[2005] EWHC 1074 (Ch), [2005] EuLR 924
EC Directive 96/9, Competition Act 1998 18
England and Wales
CitedOscar Bronner v Mediaprint (Judgment) ECJ 26-Nov-1998
A major newspaper proprietor had refused to allow a small competitor access to its efficient distribution service.
Held: That amounted to an abuse of a dominant position: ‘First, it is apparent that the right to choose one’s trading partners . .
CitedJohn Zinc Co Ltd. v Wilkinson CA 1973
Bearing in mind the seriousness of the allegation, proper and full particulars of an allegation of fraud must be set out in the pleadings. . .
CitedUnited Brands Company and United Brands Continentaal BV v Commission of the European Communities ECJ 14-Feb-1978
Europa The opportunities for competition under article 86 of the treaty must be considered having regard to the particular features of the product in question and with reference to a clearly defined geographic . .
CitedAntaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .

Cited by:
CitedAttheraces Ltd and Another v The British Horseracing Board Ltd and Another CA 2-Feb-2007
The defendant appealed a finding that it had abused its dominant market position in refusing to supply to the claimant a copyright licence for its information on horse racing at a proper or acceptable price. The defendant was said to have a monopoly . .
CitedSel-Imperial Ltd v The British Standards Institution ChD 23-Apr-2010
The defendant had developed a draft standard for automotive body repairs. It included a requirement that any replacement parts must be either the manufacturer’s own or certified under a recognised conformity certification scheme. The claimant . .
CitedHumber Oil Terminals Trustee Ltd v Associated British Ports ChD 24-Feb-2011
The claimant sought to renew its leases of docking facilities from the landlord defendant. The defendant resisted saying it intended to operate its own business, and the claimant now alleged that the defendant was abusing its dominant position to . .

Lists of cited by and citing cases may be incomplete.

Information, Commercial, Contract, European

Updated: 09 November 2021; Ref: scu.225995