Pursuers and reclaimers: Lake, QC; Harper Macleod LLP

Defenders and respondents: McIlvride; TLT Scotland Limited

15 January 2014

[1] On 15 November 2013 the court refused a reclaiming motion brought by the pursuers and reclaimers against an interlocutor of Lord Woolman dated 25 March 2013. The reclaimers sought leave to appeal to the Supreme Court of the United Kingdom. At the request of the court, a written note setting out their reasons was provided. On 5 December 2013 the court was addressed by counsel for the reclaimers and counsel for the respondents. Ultimately the court refused to grant leave, for the following reasons.

[2] First, there is an authoritative ruling on the issue in question from the Grand Chamber of the European Court of Justice (Football Association Premier League Ltd and others v QC Leisure and others (no 2) [2012] FSR 1 - the "English Premier League" case). In our opinion, no new issue of general public importance is raised by the reclaimers' application.

[3] Secondly, this case has not yet reached the stage of a proof of the facts averred. Certain facts are in dispute. For the purposes of the reclaiming motion, this court took certain averments pro veritate; but it is possible that a proof might establish different facts. Further in the course of the debate, the respondents confirmed that they intend to amend their pleadings. Bearing in mind the guidance given in British Oxygen Co Ltd v South West Scotland Electricity Board 1956 SC (HL) 112, at page 120, and Ferguson v Maclennan Salmon Co Ltd 1990 SLT 658 at page 663 E-F, we do not consider it appropriate to grant leave to appeal to the Supreme Court at this stage of the case.

[4] Thirdly, the events with which the case is concerned occurred in 2006-2007. Some delay occurred while both parties awaited the outcome of the reference to the ECJ in the English Premier League case. The decision of the Grand Chamber became available on 4 October 2011. If there were to be an appeal to the Supreme Court in the present case, with the possibility of a further reference to the ECJ (if the Supreme Court were to be persuaded that the Grand Chamber had failed to answer the question referred to them in the English Premier League case) then there would be further delay. We considered it preferable to allow the present case to proceed to a conclusion in the Court of Session. It would always be open to parties to seek leave to appeal to the Supreme Court at that stage.

[5] Accordingly for all of the above reasons we concluded that the application for permission to appeal to the Supreme Court should be refused.