ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice Blackburne)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE TOULSON
| JML DIRECT LTD
|- and -
|FREESAT UK LTD
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr. Tim Ward and Mr. Ben Lask (instructed by BBC Commercial & Regulatory Legal Department) for the respondent
Hearing dates : 13th January 2010
Crown Copyright ©
Lord Justice Moore-Bick :
"3. Provision of EPG Services
3.1 Freesat shall provide the EPG Services set out in Part A of Schedule 2 in respect of the Channel in accordance with the Listing Policy.
3.2 The Channel Provider shall comply with the obligations set out in Part B of Schedule 2
. . .
3.4 The Channel Provider recognises that it has no right or entitlement to any particular LCN and that LCNs are allocated by Freesat at its discretion in accordance with the Listing Policy.
. . .
10. Fault Handling
10.1 Freesat shall provide the EPG Services:
10.1.1 in accordance with all applicable laws and regulations (including, for the avoidance of doubt, the Ofcom Code); [and]
10.1.3 in accordance with the Listing Policy."
1.1 This document states the policy of . . . Freesat . . . for the allocation of . . . EPG . . . numbers on the Freesat platform. After any such allocations have been made by Freesat, the EPG number continues to belong to Freesat and to be subject to its discretion and applicable policy.
. . .
2. EPG Listing Policy Objective
2.1 Freesat's objective is to apply the Policy in such a way as it considers to be for the long-term benefit of the Freesat platform, to fulfil viewer expectations and in the interests of viewer convenience (in each case as determined by Freesat in accordance with this Policy).
. . .
5. Allocation of EPG Numbers within Genres
5.3 Where Freesat is considering the allocation of an EPG number to more than one channel at the same time it will take into account the following;
(i) the applicability of sections 6 and 7 below to one or more channels;
(ii) the date on which the Launch Application Form was received by Freesat;
(iii) the date that the channel provider has entered into an EPG Agreement with Freesat;
(iv) the intended launch date of the channel; and
(v) viewer convenience and expectations."
"7.1 Freesat considers that viewer convenience and expectations will be best served if channels which are Associated with another channel or other channels on the Freesat platform are more closely grouped together on the Freesat platform. It is Freesat's intention that the Policy will operate over time to achieve this."
It was common ground that JML's two channels were "associated" for these purposes.
1. This Code sets out the practices to be followed by EPG providers:
a. to give appropriate prominence for public service channels;
b. to provide the features and information needed to enable EPGs to be used by people with disabilities affecting their sight or hearing or both; and
c. to secure fair and effective competition.
. . .
Fair, reasonable and non-discriminatory treatment
14. Ofcom has concluded that, in order to secure that the providers of EPGs licensed by Ofcom do not enter into or maintain any arrangements or engage in any practice that Ofcom considers would be prejudicial to fair and effective competition in the provision of licensed radio or television services or of connected services as defined in section 316 of the Act, EPG providers should comply with the provision set out in this section.
15. In particular, EPG licensees are required:
a. to ensure that any agreement with broadcasters for the provision of an EPG service is made on fair, reasonable and non-discriminatory terms;
b. to publish and comply with an objectively justifiable method of allocating listings. This does not preclude different methods - for example, objectively justifiable methods could include 'first-come, first-served', alphabetical listings, and those based on audience shares;
c. to refrain from giving undue prominence in any listing or display to a channel to which they are connected, except as required by the appropriate prominence provisions set out in paragraphs 2 to 4 above;
. . . "
(i) Failure to apply a published method of allocation
(ii) Failure to take into account the dates of the EPG Agreements
"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process."
His remarks were, of course, made in the context of a case concerning the granting of planning permission to which the principles of public law apply, but the distinction which Lord Hoffmann there drew between having regard to a factor and attaching weight to it is one of principle. It is in my view equally valid in a case of this kind where a contract requires one party to take into account particular factors when making what is essentially an evaluative judgment.
(iii) Does one irrational ground invalidate the decision?
The Master of the Rolls: