England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Lloyd)

		Royal Courts of Justice Strand London WC2
		Wednesday 11th July 2001

1. LORD JUSTICE HENRY:I will ask Lord Justice Walker to give the first judgment.
2. LORD JUSTICE ROBERT WALKER: This is an expedited application for permission to appeal (with the appeal to follow if permission is granted). A trial is at present proceeding in the Chancery Division before Mr Justice Lloyd. The trial has itself been brought on with expedition, since the claim form was issued on 26th February 2001. Immediately after proceedings were commenced there was an application for injunctions which was dealt with on the basis of mutual undertakings. Both sides agreed that a speedy trial was desirable, and the first provisional estimate of its duration was five days. By the time the trial actually began on Monday 25th June the estimate had grown to 20 days, with a perceived risk, as the judge put it, of its exceeding the 24 sitting days which the judge could devote to it before the end of term.
3. The trial is concerned with issues of competition law (principally, but not solely, under sections 2 and 18 of the Competition Act 1998 and Articles 81 and 82 of the Treaty) as they affect professional snooker. The first and second claimants, Mr Stephen Hendry and Mr Mark Williams, are leading professional snooker players. The third claimant is a company which was at the commencement of the proceedings called The Sportsmasters Network Limited. I will follow the judge in referring to it as "TSN". TSN acts as the manager of a number of professional snooker players and wishes to expand its activities into arranging snooker tournaments, with a special interest in promoting snooker and its tournaments on the Internet.
4. The only defendant in the proceedings is The World Professional Billiards and Snooker Association Limited ("WSA"). This is a company limited by guarantee whose members are professional snooker players (including Mr Hendry and Mr Williams). It also acts as the regulator of professional snooker (in the sense that it makes and enforces the rules) and it is the principal organiser of professional snooker tournaments in the United Kingdom, Ireland and, it seems, some other parts of the world.
5. In his judgment, part of which the claimants seek to appeal from, the judge said of the statements of case in this matter, in paragraph 3 of his judgment:

"The statements of case have been prepared fully and with evident care. The Claimants contend, in the Particulars of Claim, that three rules of the WSA are void under the competition law of the European Union or of the UK or both, or as a restraint of trade under English law, and they also challenge, on similar bases, two aspects of the WSA'S conduct, one being an isolated incidence, occurring in February this year, which gave rise to the proceedings, and the other a continuing practice, namely the system of ranking professional snooker players."

6. What happened in February last was, on the claimants' case, that, after TSN had in December 2000 announced its plans for a rival tour, members of WSA were given only ten days to consider and agree to be bound by new proposed rules making important changes, and this period of ten days was insufficient time for them to take legal advice (as they were advised to do), especially since many of them were at the time occupied playing in a tournament in Malta. That was what provoked the commencement of the proceedings and the application for injunctive relief.
7. At the commencement of the trial various procedural issues arose on which the judge heard submissions. He made a number of rulings on the second day, 26th June, and he gave his reasons in writing on 29th June.
8. One important ruling was as to the admission of evidence from the claimants' side on five issues which were raised, not in the claimants' Particulars of Claim, but in the claimants' Reply and Defence to Counterclaim.
9. The claimants wished to appeal against that ruling on one single issue: that is, the ruling that evidence was irrelevant and inadmissible (see paragraph 5(ii) of the judge's order):

"relating to journalists' access to communications facilities controlled and/or operated by [WSA]".

10. The judge refused permission to appeal on that point in the following terms:

"I consider it inappropriate and unnecessary to challenge my ruling on this point in the course of the trial, and I also consider that the merits of the point are clear in favour of the Defendant. The trial is expedited but is still likely to last until the end of term. I would wish it to continue with minimum interruption and as little irrelevant matter as possible."

11. In his written reasons the judge identified the issue of journalists' facilities as a specific issue raised in paragraph 8(d) and (e) of the Reply, which sets out what is said to have happened at the China Open tournament between 9th and 17th December 2000, and at the Barry Hearn tournament in Swansea on 7th and 8th January 2001. Both these incidents therefore antedated the commencement of proceedings. The judge said of these incidents, in paragraph 40 of his judgment:

"I can see how this conduct could be said to be relevant to a case against the WSA as regards anti-competitive behaviour. If the facts alleged are correct, it is unattractive conduct which suggests that the WSA did not pay heed to the constraints which, at any rate Mr Shepherd submits, need to affect its conduct towards such parties as TSN. However, on that basis I do not understand why it did not form part of the Claimants' case at the outset, in the Particulars of Claim. Of course, these allegations were put forward much earlier than the proposed claim for a declaration requiring divestment, but even so they are adduced in the Reply, and not in the Particulars of Claim. That does not entitle the Claimants to add them to their attack on the WSA, for reasons already mentioned as regards the status of the Reply. Accordingly I rule this issue to be irrelevant. That has the consequence of eliminating the whole of some witness statements and parts of others."

12. The witness statements eliminated in their entirety are (or at any rate include) witness statements from Miss Janie Watkins and Mr David Hendon, who are both freelance journalists with a special interest in snooker.
13. I must now go back to what the judge had said earlier in his ruling about the Reply. This involves going further into what happened at the start of the proceedings, when members of the WSA were asked to sign on for the WSA 2001/2 tour by 28th February 2001 (a much earlier date than usual) and were told that entry to the tour would be on the basis of what were then proposed or draft rules, set out in a handbook which was part of the package sent to WSA members.
14. The commencement of proceedings led to the undertakings which I have mentioned. They postponed the 28th February deadline, among other things. The proceedings also led to changes in the proposed rules, so that the new rules finally adopted on or about 14th March last were not precisely the same as those set out in the handbook and challenged in the claimants' Particulars of Claim, which were served on 2nd March. The claimants' Reply dealt with the new rules in their final form, but it also introduced some entirely new material - broadly speaking, the five issues which the judge's ruling has excluded.
15. The circumstances in which the Reply was served appear from a letter dated 2nd April last which the claimants' solicitors, Maclay Murray Spens, sent to WSA's solicitors. The letter said:

"We enclose, by way of service, our clients' Reply and Defence to Counterclaim. Kindly acknowledge receipt.

Please note, our clients are not proposing to formally amend their Particulars of Claim for the following reasons:

(1)The new rules were introduced by your clients after the parties appeared before Lloyd J and after service of the Particulars of Claim;

(2)Our clients do not believe that the new rules make any difference to the substance of their claim;

(3)In view of the proposed timetable, we do not believe it to be in either parties' interests to effect formal amendments.

Consequently, your clients should treat the contents of the Reply as consequential amendments to the Particulars and we would, of course, have no objection should you wish to plead to the Reply."

16. So far as appears from the papers before us, there was no direct or substantive reply to that letter, either agreeing or disagreeing with its contents. But on 4th April further directions (including permission for service of a rejoinder, if so advised) were agreed at a hearing before Mr Justice Etherton. Mr Mark Gay of Denton Wilde Sapte, WSA's solicitors, referred to the letter of 2nd April without adverse comment in a witness statement which he made later that month.
17. The claimants have relied heavily on the letter of 2nd April, both before the judge and in this court, in arguing that the contents of the Reply should be treated as if contained in the Particulars of Claim and that it would be an injustice if the matter were excluded because it appeared in the wrong pleading.
18. The judge did not accept that, so far as the new material was concerned. He said, in paragraph 8 of his judgment:

"I do not so read that letter, and I have been shown nothing else (apart from the directions I have mentioned about pleading to the Reply) that is relevant. I regard the letter as saying, sensibly, that the Claimants would seek the same relief as was set out in the Particulars of Claim by reference to the new rules as well as to the previous versions, without a formal amendment to the Particulars of Claim. I am content to take the Claimants' case on that basis. It does not seem to me to follow that everything in the Reply is to be regarded as having the same status as if it had been set out in the Particulars of Claim. The basis of the challenge in the Particulars of Claim remained focused on the three rules and two other matters."

19. Those two others matters were, of course, the two other matters mentioned in paragraph 3 of the judgment, which I have already read.
20. Later, in paragraph 32 of his ruling, under the heading "Limiting the evidence", Mr Justice Lloyd added this:

"In other circumstances I would, or might, be more hesitant about excluding evidential material because the facts were referred to in the wrong statement of case, but in the present instance, where the trial has been brought on at speed pursuant to a series of directions, where the need for an early determination of the issues is, I believe, common ground, and where there is real concern as to whether the hearing of the case can be concluded before the end of July, I am not minded to stretch a point as I might otherwise be, or to relieve the Claimants from the consequences of the way they have formulated their statements of case by permitting them to amend the Particulars of Claim in any relevant respect (even if they sought to do so, which they have not)."

21. In this court Mr Philip Shepherd (appearing with Mr Fergus Randolph for the claimants) has sought permission to appeal on three grounds set out in his clear and concise skeleton argument and oral submissions:

(1)That WSA apparently accepted or at any rate acquiesced in the proposal that the Reply should be treated as making consequential amendments in the Particulars of Claim.

(2)That the judge said in paragraph 40 of his ruling that such evidence could have been relevant to a case such as that brought against WSA.

(3)That WSA had not sought to deny the allegations.

22. Of these three points the first is plainly, in my judgment, the most important. What the judge said about relevance to a possible case cannot give the claimants much comfort, nor, I think, can the fact that WSA, having obtained permission to put in a rejoinder, eventually decided not to do so. If the two freelance journalists were to be called and put in their witness statements as evidence-in-chief, it is quite unpredictable what cross-examination might ensue.
23. Coming back to the first point, I can well understand the disappointment felt by the claimants at the exclusion of what they regard as important evidence, if that exclusion appears to be based on a more or less technical point, and moreover a technical point which WSA's solicitors did not raise when they received the letter of 2nd April.
24. However, to my mind that letter was ambiguous (and in saying that I am not, of course, suggesting any conscious or deliberate obscurity). The fact is, however, that the letter fails to distinguish between more or less formal amendments following the eventual form of the new rules and the introduction of entirely new matters of controversy such as the allegation of mismanagement, the denial of press facilities, and so on. The former could aptly be described (and, indeed, were described in the letter) as "consequential" and not making "any difference to the substance of the claim". The latter type of amendment could not be described in that way.
25. Moreover, it is important for litigants to realise that under the Civil Procedure Rules it is the judge, even more than it was in the past, who is in control of litigation, and litigants cannot always safely agree case-management issues without the judge's knowledge and approval. It has not been suggested in this court that either Mr Justice Etherton or any other judge who gave directions in the matter expressly or impliedly directed that the whole contents of the Reply should be treated as included in the Particulars of Claim.
26. Under paragraphs 4.4 and 4.5 of the Practice Direction under Part 52 of the Civil Procedure Rules relating to appeals, an appellate tribunal is to be particularly cautious about interfering with case-management decisions, which include all decisions made under rule 3.1(2) of the Civil Procedure Rules. All the judge's decisions embodied in his ruling were made under that provision. The need for caution applies with particular force, for obvious reasons, to rulings given in the course of a trial which is continuing.
27. The judge's decision may seem - indeed, it may actually be - a fairly tough decision, but the judge gave good reasons for that in paragraph 32 of his ruling, which I have read. The decision was, it seems to me, within the ample scope of his case-management discretion. I would therefore dismiss this application.
28. LORD JUSTICE HENRY: I agree. This was a matter for the discretion of the trial judge and this court should be, and is, cautious before it is prepared to interfere with the exercise of such discretion.
Order: application for permission to appeal dismissed; applicant to pay the respondent's costs of today summarily assessed in the sum of £4,500.