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Cite as: [2017] CSOH 141, [2017] ScotCS CSOH_141

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P1137/16

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 141

OPINION OF LADY WOLFFE

In the petition of

(FIRST) SKY PLC; and (SECOND) SKY UK LIMITED

against

ROBERT STEWART

Petitioners: Tariq; Burness Paull LLP

Respondent: Party

Petitioners

Respondent

3 November 2017

Introduction

[1] These are proceedings for breach of interdict.

[2] The petitioners, together with Sky Subscribers Services Limited (“SSSL”) (the

petitioners and SSSL are hereinafter collectively referred to as “Sky”), are well known

providers of digital pay-television broadcasting services to domestic and commercial

subscribers. Their broadcasts of football matches feature graphics, logos and match

information, much of which are artistic works in respect of which the petitioners enjoy

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football matches containing some of the Works, but without the permission or consent of the

petitioners.

[3] The petitioners have previously brought proceedings of this character for interdict

against the respondent (“the Interdict Proceedings”). In particular, by interlocutor dated

7 June 2016, the court granted decree including inter alia for Perpetual Interdict against the

respondent (“the Perpetual Interdict”) from infringing the petitioners’ Works by

communicating them to the public and, in particular, in the absence of any agreement from

the second petitioner permitting him to do so, from showing broadcasts of football matches

made by the second petitioner (including the Works) on televisions in licensed premises

known as “The Village Inn, 30 Inglis Green Road, Edinburgh (“the premises”). At the

material time the respondent was the licensee or the premises manager of the premises. The

date of the infringing broadcast that formed the basis of the Interdict Proceedings was

17 January 2016. A certified copy interlocutor of the Perpetual Interdict was duly served by

messengers-at-arms on an individual within the premises on 23 June 2016.

[4] The petitioners bring the present petition and complaint for breach of the Perpetual

Interdict, alleging that the respondent showed (or permitted to be shown) a further football

match in the premises on 25 September 2016 (between Aberdeen Football Club and Rangers

Football Club), which had been broadcast on the Sky Sports 5 channel (“the AFC Match”).

This was said to constitute a breach because the respondent did not have a commercial

subscription agreement that permitted him to play the AFC Match, which, of course,

included communication of the Works.

Scope of Matters in Dispute

[5] The matter called before me for Proof. As I record below, much of the evidence was

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agreed or not disputed. The principle issue is whether the respondent showed the

AFC Match in the premises, in breach of the Perpetual Interdict. The respondent’s position

is a little difficult to discern. In his answers, he “vehemently” denies broadcast of the football

match between Aberdeen and Rangers; however, in his witness statement, he states that he

was not present in the premises on the day in question and he relies on a contract with

Scotsport Sat Limited (“Scotsport”) for provision of the football matches shown.

[6] Having regard to the respondent’s answers and the two witness statements

submitted (for himself and his sister, Sharon Stewart), the respondent also wished to raise

questions about the circumstances surrounding the Interdict Proceedings and the grant of the

Perpetual Interdict. The respondent disputed that a Sky football match was shown on

17 January 2016. He denied having received service of the Summons in the Interdict

Proceedings or service of the interlocutor granting Perpetual Interdict. In his witness

statement he referred to a letter he sent on 26 April 2016 to the petitioners’ agents, in which

he informed them that all broadcasts were via “European Broadcasters”. In Sharon Stewart’s

witness statement, there is also reference to her having been at her own work on the day that

service of the Summons for the Interdict Proceedings was effected in the premises on

13 April 2016. It was explained to the respondent at the outset of the Proof, that it was not

competent in these proceedings to challenge the grant of the Perpetual Interdict in the

Interdict Proceedings. Matters raised for the purpose of challenging the Perpetual Interdict

were, strictly, irrelevant to what is the subject-matter of the issue in these proceedings.

However, as there was some reference to this in the evidence and in submissions as bearing

on credibility, and perhaps also going to the knowledge of the respondent, I record this

evidence so far as it is necessary to do so.

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Documentation Available in these Proceedings

[7] The respondent appeared personally. At a series of By Orders preceding the Proof,

what was required at each stage was explained to the respondent, as was the procedure to

be followed at Proof. Notwithstanding the respondent’s failure appropriately or timeously

to respond to the petitioners’ notice to admit (No 10 of process), the court identified only

those matters that were conceded in the respondent’s answers and recorded these in an

interlocutor. In addition, a number of steps were required or undertaken in order to

facilitate the respondent’s understanding of, and participation at, the Proof. These steps

included the provision well in advance of the Proof of:

(1) witness statements for the petitioners’ witnesses,

(2) a joint bundle of productions,

(3) copies of the petitioners’ authorities (with passages to be relied on identified by

paragraph number),

(4) a Joint Minute (No 25 of process) (“the Joint Minute”);

(5) a List of Agreed Facts and Disputed Facts (“the List of Agreed and Disputed

Facts”).

[8] In addition, Mr Tariq, appearing on behalf of the petitioners, provided a copy of his

submissions. The list of agreed and disputed facts usefully covered all matters in the

parties’ pleadings, Joint Minute and in the previous notice to admit procedure, and afforded

the respondent a single document which clearly identified the scope of what was disputed.

This was also discussed at the outset of the Proof.

Agreed Evidence

[9] It is not necessary to set out all of the evidence agreed in the Joint Minute, in the

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deemed admitted facts under the notice to admit procedure, or in the List of Agreed and

Disagreed Facts. The following suffices (I have inserted headings for convenience):

Sky’s Subscription Services

(1) The broadcasts made by Sky contain a copyright notice. Broadcasts of football

matches made by Sky features graphics, logos and match information. Some of

this material is within the scope of the Works, in respect of which Sky has

intellectual property rights. SSSL provides ancillary services supporting the

satellite television broadcasting operations of the second petitioner. SSSL

supplies both domestic and commercial subscribers with viewing cards

enabling them to decode satellite broadcasts received by decoders.

(2) Sky enters into domestic and commercial contracts to enable subscribers to

access Sky television services. Commercial premises, including licensed

premises such as the premises, require to enter into commercial contracts with

Sky. Typically, a commercial contract will cost substantially more than

domestic contracts and is calculated according to the rateable value of the

premises, reflecting the fact that the broadcasts are being displayed to a wide

audience and in order to generate a financial benefit for the commercial

premises.

(3) In order legitimately receive Sky’s broadcasts and broadcast them to the public,

it is necessary to have a decoder and a viewing or decoder card, as well as a

satellite dish. These are provided by Sky. The viewing card is inserted into the

decoder and is needed to decrypt the signal.

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(4) All Sky domestic and commercial viewing cards are owned by SSSL. Viewing

cards are supplied to subscribers at the inception of their contract and, possibly,

from time to time thereafter. Under the terms of the domestic and commercial

contracts, SSSL continues to own the viewing card after it is sent to both

domestic and commercial subscribers. A notice to that effect appears on the

card.

(5) SSSL does not, and did not at any time, sell or license their proprietary rights in

the viewing cards to any other party.

(6) Viewing cards for both domestic and commercial contracts are

non-transferable. A subscriber, whether domestic or commercial, is only

permitted to use the equipment supplied and to access Sky broadcasts at the

specific or single address identified in the subscriber’s contract. These rights

are not transferable. A subscription under a domestic contract does not entitle

the subscriber to access Sky broadcasts in commercial premises.

(7) Sky embed certain images in their broadcasts. For domestic subscribers

receiving a broadcast via a residential viewing card provided under a Sky

residential subscription contract taken in the UK, there will either be a white

dot visible in the top right corner of the television screen on certain channels or,

if in interactive services are available a red dot. For commercial subscribers,

there is embedded a pint glass graphic (the “Sky Bug”) is visible (instead of the

white or red Sky residential dots). Broadcasts made by the second petitioner

contain a copyright notice.

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(8) Investigation agents, as instructed by Sky, attend various premises to check if

those premises are showing Sky programming and in particular Sky Sports

broadcasts of football matches.

(9) Upon receiving the investigation agent’s report, Sky check their customer

database to see whether or not that premises has a commercial subscription

agreement which would have allowed the operator(s) of the premises to show

the Sky Sports broadcast, which was viewed by the investigation agents.

(10) The images constituting the Works are agreed, as annexed to the summons in

the Interdict Proceedings.

The Respondent’s Responsibilities vis a vis the Premises

(11) The respondent was the designated premises manager of the premises in terms

of the Licensing (Scotland) Act 2005 (“the Act”) between 16 January 2016 and

16 January 2017.

(12) As designated premises manager, the respondent was responsible for the day

to day running of the premises. The respondent was the tenant of the premises

between 16 January 2016 and 30 September 2016.

The Interdict Proceedings

(13) Following service of the Summons on 13 April 2016, the petitioners’ solicitors,

Burness Paull LLP, received a letter from the respondent dated 25 April 2016

denying that the relevant match on 17 January 2016 shown at the premises was

shown on Sky Sports.

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The lack of a Commercial Subscription for the Premises at the Material Time

(14) No commercial subscription agreement existed in respect of the premises that

licensed communication of the Works to the public between 16 January 2016

and 16 January 2017.

(15) The respondent had entered into a commercial subscription agreement with

Sky for the premises on 21 May 2014. However, that agreement was cancelled

on 29 June 2014 as the respondent did not keep up his monthly subscription

payments.

(16) A commercial subscription agreement with Sky was subsequently entered into

with Sky on 19 March 2017 for a 12 month period. Under this agreement, the

monthly payment for the premises is £612.33 plus VAT.

Disputed Matters

[10] So far as relevant to the issue of whether or not there has been a breach by the

respondent of the Perpetual Interdict, the respondent disputes the following contentions by

the petitioners:

(1) That on 25 September 2016, the respondent showed the AFC Match on the

televisions in the premises, or that this constituted a communication of the

Works on that date.

(2) That if the respondent wished to show football matches broadcast by the second

petitioner at the premises, he was able to enter into a commercial subscription

agreement with the petitioners. This is the only legitimate way for a licensed

premises, such as the premises, to show Sky Sports broadcasts.

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(3) That a person viewing the broadcast of football matches with the inclusion

within it of the Works would or ought to have known that the broadcast was

that of the petitioners;

(4) That the system used by the respondent to broadcast football matches in the

premises provided access to football matches that included the petitioners’

Works;

(5) That the petitions have not entered into any agreement with Scotsport Sat

Limited (“Scotsport”) or otherwise granted them permission to provide access to

football matches made by the second petitioner and which include the

petitioners’ Works; and

(6) Any agreement between the respondent and Scotsport Sat Ltd did not entitle the

respondent to show football matches made by the second petitioners and in

particular, to communicate the petitioners’ Works on the televisions in the

premises.

Evidence Led on Behalf of the Petitioners

David Mackie

[11] David Mackie worked for an inquiry agency used by Sky. He had done so for about

2 years and had had training in what to look for in order to ascertain whether a broadcast

was one by Sky. Prior to that, he had been with Strathclyde Police for 30 years, latterly in

the capacity of detective inspector.

[12] He and another inquiry agent, David Crookston, attended at the premises on 25 June,

arriving about 1.20pm and staying for about 35 minutes. Around ten other persons were

present in the premises on their arrival. Only one of three televisions with the premises was

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on, the one above the bar, and it was showing the AFC Match. He described where he and

David Crookston sat; they were no more than 3 metres away and had a clear view- a

“perfect view”, in his words.

[13] During the 20 or 35 minutes he was in the premises watching the TV, he identified

the following Works of Sky: the Sky Sport 5 logo (at the top right of the screen), the score

clock (at the top left), and the Sky Sports colour logo. He also saw the “trophy wipe”, used

by Sky to transition to replays, a “mini match” and a Sky Sports advert for an upcoming

game. In addition, he recognised the commentators in the Sky studio (Neil McCann and

Alex McLeish) and he identified other well-known commentators by the voices (Ian Crocker

and Andy Walker). He explained that, as he had Sky Sports at his own home, he was very

familiar with all of these commentators. He was positive he had identified them correctly.

[14] In relation to the suggestion that this was a broadcast via a foreign channel, he

explained that, having hear the discussion and commentary in English, he was in “no

doubt” that this was a Sky Sports broadcast, and not via a foreign channel. He also spoke to

the names and sequences of 13 advertisements shown during the broadcast while he was

present. These would not have been broadcast via a foreign channel. After 35 minutes he

and David Crocker left and completed their inquiry report, the terms of which he spoke to.

[15] Cross was brief. He had no knowledge of European brands of broadcasting. He

was 100% absolutely sure it was a Sky broadcast.

David Crookston

[16] David Crookston was a retired police officer, having been with Lothian and Borders

Police for 30 years, the last half of his career in Criminal Investigations Department. He had

worked as an investigator for about 6 years. He knew the premises well, as he had visited

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them on about ten occasions in the past, in a non-inquiry capacity. He had a clear

unobstructed view and had watched the broadcast on the TV for most of his visit.

[17] He identified the same features as those spoken to by David Mackie (the logos, the

trophy wipe, mini match and commentators), and which confirmed beyond doubt in his

mind that this was a Sky sports broadcast. The particular trophy wipe was unique to Sky.

He also spoke to the same order and identity of advertisers. He rejected the contention that

this was a foreign broadcast.

[18] Again, cross-examination was brief. While he had seen European broadcasts of UK -

based matches, he was sure that this was a Sky Sports 5 broadcast by virtue of the logos and

other details he had spoken to. He had no knowledge of Scotsport.

Scott Fenwick

[19] Scott Fenwick was a sheriff officer and messenger-at-arms. He spoke to the service

of the extract decree comprising the Perpetual Interdict at the premises on 26 June 2016,

together with his colleague Grant Ferguson. These were left with a female who had been

behind the bar, and who had identified herself as “Tracy Wallace”. She had confirmed that

she was an employee and that she would accept service on behalf of the respondent.

[20] It was put to him in cross-examination that he should obtain a signature. He

explained that this was not a requirement for valid service.

Grant Ferguson

[21] This witness evidence was to the same effect as Scott Fenwick, as was the

cross-examination.

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Karen Anderson

[22] Karen Anderson is the Commercial Policing Operations Executive for the second

petitioner. She spoke to the operational and technical matters, I have set out above (at

paragraph [9 (1) to 10]). She augmented her witness statement, explaining the possibility for

“card sharing” enabling non-subscribers to decrypt the encrypted television signal the way a

legitimately paying or subscribing customer could. This still constituted unauthorised

access to Sky content by any non-subscriber or in respect of any premises not identified in a

relevant commercial or domestic subscription agreement.

[23] She also spoke to the fact that that there was no commercial agreement or

subscription in place in respect of the premises at the material time. She spoke to the

conduct of the Interdict Proceedings, the grant of the Perpetual Interdict in those

proceedings (the extract decree was document 22 in the joint bundle), and the instruction of

service of the certified copy interlocutor of the Perpetual Interdict by messengers-at-arms on

23 June 2016.

[24] In respect of Scotsport, she explained that, whatever the terms of any agreement

between the respondent and Scotsport, that would not permit broadcast of Sky matches or

the Sky match. She confirmed that Sky does not licence the right to broadcast Sky content to

Scotsport. The only legitimate way to show Sky Sports broadcasts was through a

commercial subscription agreement.

[25] She also identified the advert log for the timeframe spoken to by the two agents who

had attended the premises on 26 September. The advertisers she identified were identical,

as was the order in which these appeared. Finally, she spoke to the respondent’s prior, brief,

contract as a subscriber of Sky in 2014, and to the fact that there is now a new contract in

place in respect of the premises. The monthly payment under the current agreement is

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about £617. From this Karen Anderson inferred that the respondent was, or ought to have

been, aware what was required to be paid legitimately to show Sky Sports. What he said he

was paying through Scotsport was half of that figure. It would have been obvious to the

respondent that any access to Sky via Scotsport was not legitimate.

[26] She confirmed in her oral evidence that there was no relationship between Sky and

Scotsport. The latter company had no right to show Sky content and had no authority to

communicate the Works. The terms of a 12 month contract between Scotsport and the

respondent dated 1 April 2015 was put to her (no 16 in the joint bundle), to the effect that the

signatory (ie the respondent) “understand and accept the coverage of sport I receive and

appreciate that Scotsport Sat are not responsible for broadcasting decisions”. To her, this

meant that whatever is broadcast is the decision and responsibility of the contract holder

ie the respondent. Even if Scotsport managed to facilitate the viewing of the AFC Match,

this would not have been legitimate. They were not a broadcaster in their own right and

they had no agreement with Sky that would permit this. She also spoke to the Works

identified by the two investigators. The advert log she had checked coincided exactly with

what they described.

[27] She also explained that Sky had exclusive rights to broadcast certain matches,

including the AFC Match, within the UK. If it were a Sky broadcast, it would have the Sky

Works. No other broadcasters could have the right to communicate or broadcast those

Works.

[28] In cross, it was put to her that Scotsport was a legitimate company, so that it was

“okay” to use their broadcasts. She replied that it would nonetheless be a breach of Sky’s

intellectual property rights and that they were not allowed to sell or show Sky’s content. It

was put to her that Sky should pursue Scotsport. She explained that they had been reported

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but it was not her department that would deal with them. She could not speak to any

increase in price of the respondent’s brief subscription in 2014.

Evidence on behalf of the Respondent

Sharon Stewart

[29] Sharon Stewart was the sister of the respondent. She was helping the respondent in

the premises in mid-September 2016 because she was due to take over the tenancy on

2 October 2016. She was in the premises on 25 September 2016; her brother the respondent

was not. Her witness statement has some internal inconsistencies or confusion about

whether a match was shown or whether they had the means to do so: she stated that she was

working in the premises on the day in question and that the premises had a commercial

contract with Scotsport, which “had been in place to show alternative games”; however, she

also denied showing football games on 25 September. She suggested that if there were only

ten people in the premises, she would not have risked showing “illegal broadcasts to that

amount of customers”.

[30] In cross, she accepted that the respondent was at the material time, and remained,

the designated premises manager for the premises. As such, he was responsible under the

Licensing (Scotland) Act 2005 (“the Act”). While she was being trained, he was the

responsible person on 25 September 2016 in respect of the premises.

[31] She accepted that she was aware that Sky had accused her brother of showing a Sky

match earlier that year. She also understood that the respondent had a contract in place

with Scotsport at that time and had a device from them to play matches in the premises. She

denied that when the device was used that there was any Sky Sport logo or any

commentary.

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[32] Her observation in her witness statement that, as she was aware of the earlier

allegation, she was ”being extra vigilant” to ensure that there was no such broadcast in the

premises. However, she could not state what kind of logo, if any, there was for a Scotsport

broadcast. She was not able to state what game was shown. She was not being “extra

vigilant” in that sense. She then suggested that it was a foreign broadcast logo. She could

not say which one. She was not really paying attention. She thought it was maybe a foreign

language broadcast. She was not sure what language. She was very sure, however, that it

was Scotsport that was used in order to play the game in the premises. She was adamant

that this was not Sky Sports.

[33] It was put to her that Scotsport was not a legitimate way to broadcast Sky. Her

position was that she broadcast whatever Scotsport gave her. She paid them; they gave her

a box; she assumed it was ok. She accepted that the only way to air Sky Sports content was

via a subscription with Sky, but her position was that perhaps Scotsport had a contract with

Sky permitting this. She did not know. She was pressed several times. Her eventual

position was that with Scotsport, she put the TV on, the football on, but she did not know

whether Scotsport could legally show Sky content. She backtracked on her suggestion that

the commentary of the football match played in the premises on 25 September 2016 was

foreign. She was not sure. Most of the time, she played it with the sound down.

[34] It was put to her that her evidence kept changing. Her initial position had been that

the broadcast was definitely not Sky and that there was a foreign commentary. Then she

had said she was not sure about the language of the commentary. She stated that her

position was that most times the commentary was foreign. Customers complained so she

turned the sound down. It was put to her that she said she was being “extra vigilant” to

ensure that there was no Sky Sport logo on 25 September. She retracted that

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characterisation, stating that she was not being extra vigilant before she took over the

premises (ie in early October 2016). Her position was that it could not be a Sky match

because they did not have a Sky viewing card. She was pressed as to whether nonetheless

there was a Sky Sports logo. She did not know; the TV was positioned above the bar; she

was not sure as she was not paying much attention. The evidence of the two enquiry agents

was put to her about the logo and the commentary: she said “they weren’t lying but they

weren’t correct”. In respect of the commentary they had described hearing, she said that it

might have been in English. The volume was down. The evidence about the 13 advertisers

spoken to by the two enquiry agents and by Karen Anderson was put to her. She remained

adamant that in the time she was in the premises that day Sky was not being broadcast. It

was put to her that the two enquiry agents had had 30 minutes within which to observe

what they had described in evidence. She then suggested that maybe she was away doing a

stock check or on a lunch break. This would have been in the kitchen. It was put to her that

she was lying: she denied this. She did not have a Sky viewing card and so could not have

broadcast the AFC Match.

Robert Stewart

[35] Mr Stewart explained that his sister, Sharon Stewart, was due to take over running

the premises from the third week of September 2016. He had been training her in various

matters, including dealing with contracts with Scotsport and the electricity supplier. While

she was not taking over the premises until 2 October, she took them over in practical sense

by the beginning of the third week of September. He was not present in the premises on

25 September.

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[36] Mr Stewart stated that there was only one box or device in the premises for

broadcasting games, and this was a Scotsport box. The broadcasts were in a foreign

language, with English subtitles, or one could push a button and the commentary would

switch to English, at least most of the time.

[37] Mr Tariq began his cross-examination of Mr Stewart with the issue of whether or not

he had received service of the Perpetual Interdict at the premises on 23 June 2016.

Mr Stewart accepted that as he was not in the premises on that date, he could not contradict

evidence of the messengers-at-arms, Mr Fenwick or Mr Ferguson. He complained that they

should have got a signature. He also accepted that he was not present on 25 September, so

could not contradict the two inquiry agents, Mr Mackie or Mr Crookston. Mr Stewart’s

position was that they did not appear to know much about European football.

[38] The substance of their evidence - seeing the Sky logo, hearing the commentators and

so on-was put to Mr Stewart. His first reply was that they would not know if what was

broadcast was via Scotsport. When asked if, as he described, the commentary of a match

was switched to English, would that be a Sky Sports broadcast, Mr Stewart was adamant

that it would be a Scotsport broadcast. His position, repeated at several points in his

cross-examination, was that the only device in the premises was incapable of showing Sky

broadcasts or anything with a Sky logo. The evidence of the two inquiry agents was again

put to him, but his position was that he did not know as he was not there on the day in

question. He was adamant that it was impossible to show a Sky broadcast via the device in

the premises. At other points in his evidence, his position was to suggest that if anything

else was put on via the device, he was not in the premises on 25 September.

[39] It was put to him that the use of this device had prompted Sky to pursue him. He

accepted that, but he explained that he had called Scotsport. They told him they would

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contact Sky. He said they phoned him back 2 days later to say it was all sorted. It was put

to him that he was not suggesting that the Scotsports device permitted him to watch Sky.

Mr Stewart’s position, which appeared to shift from his earlier adamant denial, was that he

could watch football games, even if from Sky. However, under further questioning, his

position reverted to the contention that it was impossible via the Scotsport box to play a Sky

broadcast.

[40] He was questioned about the contract with Scotsport he had produced and the

disclaimer. His position was that he broadcast what they provided, so they should be

responsible. In his view, they were a registered company and so legitimate. He could play

what they provided.

[41] Mr Stewart accepted the he knew it was wrong to broadcast Sky Sports or anything

with a Sky logo. If the device in fact were capable of showing Sky Sports, he nonetheless

accepted that it would be wrong to show such broadcasts without a Sky subscription. He

was aware of the interdict, and so would not do that. He accepted that he had been aware

from the early part of 2016 that it was wrong to broadcast Sky content without an agreement

with them.

[42] When questioned about the service of the Summons initiating the Interdict

Proceedings, his position was that he was not there; someone had impersonated his sister,

whom he maintained had not been in the premises; that no member of staff had given him

the papers and he had found them amongst the junk mail. When he had found the papers,

he had contacted Scotsport to ask why Sky was taking him to court. They had said they

would get in touch with Sky. He accepted that Scotsport had not told him he could watch

Sky content via the Scotsport device; he knew that that was not allowed.

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[43] The exchanges of April 2016 between him and the petitioners’ agents, Burness Paull,

were put to him. Among the agreed productions was his letter of 25 April 2016 to

Burness Paull. This letter referred to correspondence dated 13 April 2016 from them, and it

contained the assertion that all live sports shown in the premises were via European

broadcasters. This included the match in January 2016 that formed the basis of the Interdict

Proceedings. He initially denied or could not remember receiving a reply from

Burness Paull dated 29 April 2016 (“the Burness Paull letter”). It was pointed out that that

letter had been sent to his personal email, as well as to the premises. Again, Mr Stewart

initially cavilled as to whether that was his email, but eventually accepted that it was at that

time. Passages in the Burness Paull letter were put, including the reference to the Sky match

said to have been broadcast in January, which was supported by an inquiry agent’s report,

and the contention that “it was beyond question there is a device within [the] premises that

allows access to Sky Sports”. Mr Stewart said that that was when he contacted Scotsport

and that they were going back and forward with Sky. While he accepted that he was aware

of the Interdict Proceedings by April, his position was that Scotsport had phoned Sky and

everything had been “sorted”.

[44] It was put to him that, notwithstanding what he had said about Scotsport, he knew

from April 2016 that Sky were still pursuing him; that whatever device he was using, it was

providing access to Sky games and yet he did nothing. He accepted this. He did not defend

the Interdict Proceedings. This was either because the staff had not given him the

paperwork or he could not recall. It was put to him that from his call to Scotsport he was

aware there was a Sky action against him, but he did not check to see if matters were sorted.

Mr Stewart could not recall. He did not know what happened. When he had received the

Perpetual Interdict he had called Burness Paull in June 2016. In relation to service of the

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Perpetual Interdict, and whether Mr Stewart was aware then that there was a judgment

against him, Mr Stewart said he really did not know. He could not recall. He knew he “got

some stuff” but he could not remember. He eventually accepted that he was aware that a

judgment had been obtained against him, relating to the football game broadcast in the

premises in January 2016.

[45] He accepted that by July or August 2016 he knew that the issue with Sky had not

been resolved but that he did nothing about removing the Scotsport device. He did not

remove it, he said, because it was legitimate. He accepted he did nothing, notwithstanding

that he knew by then that the difficulty had arisen because of live sports played via the

Scotsport device. It was put to him that this was a deliberate decision. Mr Stewart’s reply

was that yes, it was. He did not know what he had done wrong or why Scotsport had not

been taken to court. He had done nothing wrong and he was not going to remove the

Scotsport device from the premises.

Submissions on behalf of the Petitioners

Introduction

[46] Mr Tariq began by explaining that breach of interdict is a contempt of court, for

which the court may inflict a penalty within its discretion. In Gribben v Gribben 1976 SLT 266

at 269, the court held that “a complaint of breach of interdict is a complaint of disobedience

of a competent order of the court. Such disobedience constitutes contempt of court.” The

proceedings are widely described as being as “quasi-criminal” in Londono, Aldridge, Eady &

Smith on Contempt (5th ed.), paragraph 16-234. As Lord President (Inglis) explained in

Samuel Christie Miller v Bain (1879) 6 R 1215 at 1216:

Page 21 ⇓

“in one sense a petition for breach of interdict is criminal proceeding. But one cannot

help seeing that in many ways it is a civil proceeding. Civil interests are often largely

concerned, and therefore it is often called a quasi-criminal proceeding.”

The standard of Proof is beyond reasonable doubt: Gribbens v Gribbens 1976 SLT 266 at 269.

[47] He identified the principal questions of fact for the court as follows:

1. Did messengers-at-arms execute valid service of the interlocutor dated 7 June

2016 granting, inter alia, Perpetual Interdict on the respondent on 23 June 2016?

2. Did the respondent show the AFC Match, made by the second petitioner and

broadcast on the Sky Sports 5 channel, on television in the premises on

25 September 2016?

[48] He submitted that if the answers to those questions were in the affirmative, the court

was invited to hold that the respondent had communicated the Works, referred to in the

Summons, to the public on 25 September 2016 and in doing so, had breached the Perpetual

Interdict pronounced by this court on 7 June 2016. If so, the respondent was in contempt of

court.

Challenging the Validity of the Perpetual Interdict Pronounced on 7 June 2016

[49] Mr Tariq submitted that there was no basis in law (or the facts) to challenge the

validity of the Perpetual Interdict pronounced on 7 June 2016. There has been no recall of the

interdict or reduction of the court’s interlocutor of 7 June 2016. Service had been duly

affected in accordance with the rules. Furthermore, the respondent handwritten to the

petitioner’s agents on 25 April 2016 referring to “the correspondence dated 13th April 2016”.

Accordingly, he was aware of the Summons and the certified copy interlocutor granting

interim interdict in the Interdict Proceedings. This was sufficient to fix the respondent with

knowledge of the Perpetual Interdict.

Page 22 ⇓

[50] Mr Tariq then turned to consider the mental element to establish a contempt of court.

The mental element in cases of breach of interdict turns on whether the existence of the

interdict was known to the alleged contemnor. In addressing this question, the court has

sometimes been ready to find constructive knowledge both of the existence of an interdict

and it terms. He referred to Londono, Aldridge, Eady & Smith on Contempt (5th ed.),

paragraph 16-226; and Burn-Murdoch, Interdict in the Law of Scotland (1986), at paragraph 447.

[51] There must be a “wilful” breach before proceedings may be taken. Under reference

to paragraph 16-227 of Londono, Aldridge, Eady & Smith on Contempt (5th ed), Mr Tariq argued

first, that it is of the essence of the offence that the relevant act should be deliberate, but only

in the sense that it is not accidental, and secondly, that it was not necessary to demonstrate

an additional element of either intention or foresight as to the consequences of any such

breach for the administration of justice. He next referred to two cases. The case of

Muirhead v Douglas 1979 SLT (Notes) 17 concerned a solicitor who had not been present in

court when the case called. In the course of his Opinion, with which the Lord Justice

General (Emslie) and Lord Johnston concurred, Lord Cameron stated (page 18):

“It would be undesirable in this case to endeavour to define the limits of conduct

which may be held to constitute contempt of court. The variety and quality of the

acts or omissions which in particular cases may fall within that description are not

capable of precise delimitation or formulation. On the other hand it may be said that

where there has been in fact a failure to obey or obtemper an order or requirement of

a court such a failure demands satisfactory explanation and excuse, and in the

absence of such may be held to constitute a contempt of court of varying degree of

gravity. I can see no reason in principle and there is certainly none in authority, for

an assertion that failure due to carelessness alone may in no circumstances constitute

contempt of court. The question in my opinion is essentially one of fact and

circumstances, in which the position and duties of the party alleged to be in

contempt are necessarily material considerations.”

This passage was considered by the Inner House in Beggs v Scottish Minister 2005 1 SC 342

(at paragraph 30) where the court explained:

Page 23 ⇓

“It is clear that, in order to constitute contempt of court, conduct requires to be wilful

and to show lack of respect or disregard for the court. It would not qualify as

contempt if the conduct complained of was unintentional or accidental. What should

be held to establish contempt plainly depends upon the nature of the case ... Where

… a person has been ordered, or has undertaken, that he will not do something, the

very fact that he does so implies, on the face of it, a lack of respect for the order or

undertaking, and hence for the authority of the court, as in Muirhead v Douglas.”

[52] In the present case, he argued there was no evidence that the showing of the

AFC Match on television at the premises was accidental. The broadcast was denied. If the

court finds that the respondent showed the AFC Match, the court was entitled to hold that

there has been a breach of interdict and contempt of court. The existence of the court’s order

was known to the respondent. There is no evidence of the steps that he took to comply with

the court’s order. In the words of (Muirhead v Douglas) the respondent’s conduct demanded

a “satisfactory explanation and excuse” but there was none in the circumstances of the case.

The Responsibilities of the Designated Premises Manager

[53] It was a matter of admission that (1) “the respondent was the designated premises

manager of the premises in terms of the Act between 16 January 2016 and 16 January 2017”

and (2) that “as the designated premises manager, the respondent was responsible for the

day to day running of the premises”. He was also the tenant of the premises between

16 January 2016 and 26 September 2016”. In these circumstances, the respondent accepts on

the facts that he was responsible for the day to day running of the premises. Under

reference to the paragraph 164 of the Guidance issued by the Scottish Government for

licensing boards, under section 142 of the Act, Mr Tariq urged that the designated premises

manager bears the burden of responsibility for the day to day running of the premises.

These responsibilities include instructing the staff in their duties. This formulation of the

Page 24 ⇓

designated premises manager’s role has been accepted by the court in British Sky

Broadcasting Group Plc v Avalonbar Ltd [2014] CSOH 39 at paragraph 11.

[54] Mr Tariq submitted that the respondent’s witness statement and answers contained a

remarkable series of circumstances for which the respondent accepted no responsibility.

Leaving aside issues of the credibility of his account, Mr Tariq commented on features of the

respondent’s own evidence, as follows:

(1) Service of the Summons and certified copy interlocutor granting interim interdict on

13 April 2016: the respondent stated in his witness statement:

“At the time the person who received the information did not give their real

name for whatever reasons known to them as they had stated that their name

was Sharon Stewart and gave Ms Stewart’s mobile number”; and “I am still

not aware of which member of staff received this information from the

messengers-at-arms.”

It was alleged that an unknown member of staff impersonated his sister to

messengers-at-arms. The respondent further stated in his witness statement:

“This was brought to my attention a couple of weeks after a summons had

been served on the premises on 13 April 2016 as the member of staff who had

received the documentation had not brought it to my attention at the time …

Once I discovered the warrant documentation in the kitchen but not in the

correspondence file approximately two weeks later, I immediately wrote to

Burness Paull”.

It was alleged that the unknown member of staff placed the documents in the

kitchen but did not bring to the respondent’s attention that there had been a visit

from messengers-at-arms to the premises serving documents on the respondent.

There is no explanation why the respondent did not discover the documentation

in the kitchen for a number of weeks.

(2) The respondent’s letter of reply dated 25 April 2016: the respondent stated in his

witness statement: “I then ended the correspondence with ‘I trust for the reasons

Page 25 ⇓

detailed above that this matter is now at a close’.” The respondent’s response to

the service of interim interdict on him was to assume that matters were not going

to be progressed by the petitioners. He did not explain what steps, if any, he

took to comply with the interim interdict. He did not, of course, enter

appearance and defend the action.

(3) The petitioners’ agents’ letter of reply dated 29 April 2016: the respondent alleged

that he did not receive this letter. The respondent stated in his witness statement:

“I don’t think that it is unreasonable to assume that any such correspondence

could have been misplaced or discarded by any member of staff working at

that time as they were obviously not either contentious, reliable or honest”.

The letter of reply was posted to the premises. The respondent blamed members

of staff for not bringing this letter to his attention. The respondent appeared to

have overlooked that the same letter was sent by email to him. The respondent

further stated in his witness statement: “As I received no further correspondence

I assumed that the matter had been resolved”. The respondent’s approach was,

Mr Tariq suggested, indicative of someone who was not troubled by a Summons

being served on him. Once again, he did not explain what steps, if any, he took

to comply with the interim interdict. He did defend the action. There was no

suggestion that he wrote again to the petitioners’ agents to enquire about the

status of the court proceedings against him.

(4) Service of the certified copy interlocutor granting perpetual interdict on 23 June 2016: In

his answers, the respondent averred:

“I did not employ anyone named Tracy Wallace at the time noted and there is

no official paperwork in relation to employee records or tax return

information to the contrary and therefore did not receive any interlocutor by

anyone calling themselves by that name”.

Page 26 ⇓

In his notice of non-admission, the respondent stated:

“I did not employ anyone named Tracy Wallace at the time that the

messengers-at-arms on 23 June 2016 when it was stated that a certified copy

interlocutor was served. Tracy Wallace had previously worked as a part time

bar maid on a casual basis employed by a previous leaseholder and not

employed during my duration as a leaseholder. This name may have been

given by someone else on the premises at the time to possibly protect their

identity in case they were receiving any benefits at that time. I do not have

any current contact address details for any of the casual staff who worked at

the Village Inn previously”.

It was again alleged that an unknown member of staff impersonated a former

member of staff to messengers-at-arms at the time of service of the certified copy

interlocutor granting Perpetual Interdict.

(5) The broadcast of a football match on 25 September 2016 at the Premises: The

respondent stated in his witness statement:

“Ms Stewart had assured me that no such game was shown and she had also

taken on a contract with Scotsport Sat Ltd to continue to offer the customers

the same viewing that had been shown throughout the previous year …

Ms Stewart was aware of the accusations that had been made by Sky plc in

January 2016 and would have been extra vigilant to make sure that no-one

would have been in a position of using any other type of technology to show

any such game”.

Leaving aside the evidence of David Mackie and David Crookston of ID Inquiries

about what was being shown on television screens at the premises on

25 September 2016, Mr Tariq suggested that it appeared to be that the sum of the

respondent’s evidence was that he was in no position to say what was shown

that day. He relied on the assurance received from his sister. However, Mr Tariq

argued that the respondent was aware or ought to have been aware that the

system used by him to broadcast football matches at the premises provided

access to football matches that include the petitioners’ Works. It was for that

Page 27 ⇓

reason that the first proceedings were commenced against him. Mr Tariq

submitted that, in the knowledge of interdict being obtained against him, the

respondent continued to broadcast football matches at the premises via an

alleged agreement with Scotsport. As the designated premises manager, he

authorised his sister to continue to broadcast football matches at the premises via

an alleged agreement with Scotsport. The evidence of David Mackie and

David Crookston of ID Inquiries was clear. Regardless of what system was being

used at the premises on 25 September 2016, the match being showed was the

AFC Match in English commentary bearing the Sky Sports logos and other

channel indicators.

(6) The Designated Premises Manager’s reliance on a lack of staff training and general

disorganisation: The respondent stated in his witness statement:

“The casual part time staff were not trained nor organised in the office

administration functions of the bar and merely placed incoming mail in piles

in the back kitchen for me to collect”; and “I don’t think that it is

unreasonable to assume that any such correspondence could have been

misplaced or discarded by any member of staff working at that time as they

were obviously not either contentious, reliable or honest”.

Mr Tariq argued that this attitude disregarded his responsibilities as the

designated premises manager which included, inter alia, responsibility “for the

day to day running of the premises”; responsibility for “the training and

supervising of the staff”; and required the designated premises manager to be a

“responsible person” who is “experienced in the supervision and training of staff

and suitably qualified”. This was all in terms of 164 of The Scottish Government

Guidance dated 4 April 2007, paragraph 164.

Page 28 ⇓

[55] In all these circumstances, Mr Tariq submitted that the respondent cannot rely on his

own failures as the designated premises manager to avoid culpability for a breach of

interdict and contempt of court.

The Need for Reasonable Steps to Comply with the Court’s Order

[56] Mr Tariq turned to consider the conduct incumbent upon a person against whom a

decree for interdict had passed. A party against whom interdict was served must, he said,

take reasonable steps to ensure compliance with the court’s order. This obligation arose as a

breach of interdict can be committed not only directly but through others (he cited Londono,

Aldridge, Eady & Smith on Contempt (5th ed.), paragraph 16-219, an authority for this

proposition). Thus, in the context of companies, the court in Beggs v Scottish Ministers

explained that:

“We consider that it is no reason why a similar approach should not be valid in

Scotland where a servant or agent of a company unknowingly does the act which is

prohibited by a court order which has been served on the company or by an

undertaking which has been given by the company to the court. The company

would have a duty to take all reasonable steps to ensure that the relevant servants or

agents were made aware of the requirement to comply with the order or undertaking

and did not forget, misunderstand or overlook the requirement. Where the order or

undertaking has been breached as a result of a failure in that duty, the company

should be held to have committed a contempt of court. This is only reasonable if the

court order or undertaking is to be effective in maintaining the rule of law. We

should add that the failure to comply with the order or undertaking should be

treated prima facie as indicative of contempt. It is only right that it should be for the

company to satisfy the court that it took all reasonable steps to ensure that the order

or undertaking was complied with.”

The same principles had been applied to designated premises managers on whom an

interdict has been served. Thus, in British Sky Broadcasting Group Plc v Avalonbar Ltd, the

court held:

“… it is clear that her role as the Designated Premises Manager of the Avalon Bar

was to give instructions as to what could or could not be done by members of staff.

Page 29 ⇓

If they breached those instructions, that did not make her vicariously liable for their

acts. The other hand, if she authorised the match to be shown live on television, and

she did so knowing full well that that could only be achieved by showing it on a Sky

channel, then she is responsible for the actions of the staff in acting with her

authority, not by reason of the doctrine of vicarious liability but under ordinary

principles of agency, because their actions, carried out with her authority, become

her acts. As is made clear in section 16(2) of the 1988 Act, the act of infringement is

carried out not only by showing the work without permission but also by

authorising others to show the work. The terms on the interdict specifically prohibit

the defenders ‘by themselves or by their servants or agents … or anyone acting on

their behalf’ showing the broadcasts … When she was served with the interdict, she

ought to have given instructions to her staff that the match was not to be shown. She

failed to do so. She permitted the staff to continue to act under the previous

authorisation to show the match and must take responsibility for that.”

[57] Accordingly, the observations in Begg v Scottish Ministers that the failure to comply

with an order of the court should be treated prima facie as indicative of contempt applied

equally to the present case. It should be for the respondent to satisfy the court that he, as the

designated premises manager and the individual against whom the interdict was directed,

had taken all reasonable steps to ensure that the order would be complied with. This

included, as the court noted in British Sky Broadcasting Group Plc v Avalonbar Ltd, giving

instructions to the members of staff of what could and could not be done to comply with the

terms of the interdict.

[58] However, Mr Tariq noted, there was no evidence that any instructions (or indeed

any action) was taken to ensure compliance with the terms of the interdict after it had been

served. In fact, the respondent’s own evidence appeared to be that football matches

continued to be broadcast at the premises after interdict had been served on the basis of the

alleged agreement with Scotsport. By this time, the respondent was aware or ought to have

been aware that the system used by him to broadcast football matches at the premises

provided access to football matches that include the petitioners’ Works. In these

circumstances, no reasonable steps were taken to comply with the court’s order.

Page 30 ⇓

The Witnesses

[59] Mr Tariq then turned to his submissions on the outcome of the witness led on Proof.

David Mackie

[60] David Mackie had undertaken ad hoc investigation work for ID Inquiries for around

20 months. He was formerly a Detective Inspector in the Strathclyde Police for 30 years. He

was experienced in investigation work of this nature. He has been trained to do this type of

work. He attended the premises with one purpose – to look for the Sky Sports logo on the

television screen and to record his findings in a call report. Mr Tariq submitted that his

evidence should be accepted as reliable and credible. The respondent failed to identify any

motivation, reason or basis to explain why David Mackie is untruthful or mistaken about his

evidence.

[61] In terms of David Mackie’s evidence this was clear, detailed and specific. He attended

the premises between 1.20pm and 1.54pm on 25 September 2016. He explained that the

AFC Match was being shown on one screen at the premises. He sat no more than 3 metres

from that screen. He had a “clear view” of that screen from where he was sitting. This

witness described seeing or hearing the following: (1) He saw the Sky Sports 5 logo; (2) He

saw the Sky Sports colour logo; (3) He saw the trophy wipe (which was a logo used by Sky

when showing replays); (4) He saw the mini match (which is a Sky Sports advert for an

upcoming match); (5) He heard English commentary; (6) He identified the commentators as

Ian Crocker and Andy Walker who he recognised from Sky Sports broadcasts; and (7) He saw

the half-time studio guests Neil McCann and Alex McLeish who he recognised. From this, the

witness had concluded that Sky Sports was being shown at the premises.

Page 31 ⇓

[62] In respect of the suggestions made by the respondent’s witnesses that the match was

shown on a foreign broadcast, Mr Mackie’s evidence was that this was “incorrect”. He

confirmed that

“due to the logos and studio guests I saw and the commentators I heard … I have no

doubt whatsoever that the Match was being shown on a Sky Sports broadcast and

not a foreign channel”.

He further identified the advertisements shown during the half-time interval, including

advertisements for Sky Sports, that would not be shown on a foreign channel.

[63] In these circumstances, the court ought to conclude that there has been a breach of

interdict based on David Mackie’s evidence noted above. He has “no doubts” that the

petitioners’ Works were communicated to the public at the premises. There was no

uncertainty or ambiguity in his evidence. His evidence was also corroborated by

David Crookston.

David Crookston

[64] David Crookston had also undertaken ad hoc investigation work for ID Inquiries. He

was formerly a police officer in Lothian and Borders Police for 30 years. He was

experienced in investigation work and had been trained to do this type of work. He

attended the premises with one purpose – to look for the Sky Sports logo on the television

screen and to record his findings in a call report. Like David Mackie, this witness should be

accepted as reliable and credible. Again, the respondent had failed to identify any

motivation, reason or basis to explain why David Crookston was untruthful or mistaken

about his evidence.

[65] Mr Tariq submitted that David Crookston’s evidence was clear, detailed and specific.

He knew the premises as he had visited the premises on around ten occasions. He saw the

Page 32 ⇓

AFC Match being shown on one screen at the premises. He had a “clear, unobstructed

view” of that screen from where he was sitting. He was “100 per cent sure” that Sky Sports

was being shown at the premises. He described the same features on those spoken to by

David Mackie.

[66] He refuted the suggestion that the match was shown on a foreign broadcast. In his

words:

“I am 100 per cent sure that the television screen was showing the Match on Sky

Sports 5. This is because of the logos that I saw on the television … The

commentators that I heard during the broadcast of the Match and the guests in the

studio at half-time in the Match, also confirm this”.

He also identified the advertisements shown during the half-time interval, including

advertisements for Sky Sports, that would not be shown on a foreign channel.

[67] In these circumstances, the court ought to conclude that there has been a breach of

interdict based on David Crookston’s evidence noted above. He was “100 per cent sure” that

the petitioners’ Works were communicated to the public at the premises. There was no

uncertainty or ambiguity in his evidence. His evidence was also corroborated by

David Mackie.

Scott Fenwick

[68] Scott Fenwick is a messengers-at-arms. He has held this position at Stirling Park LLP

for 13 years. He is experienced in serving court documents. He attended the premises with

one purpose - to validly execute service of the documents. He had attended the premises

with his colleague, Grant Ferguson, to serve the extract decree containing the Perpetual

Interdict on 23 June 2016. When he entered the premises, there was a female behind the bar.

She gave her name as Tracy Wallace. She explained that she was an employee at the

Page 33 ⇓

premises. He asked her if he could speak to the respondent. She explained that the

respondent was not present. She agreed to accept service of the documents on behalf of the

respondent. He therefore served the interdict on the respondent by leaving the documents

with the employee calling herself Tracy Wallace at the premises at 3.55pm on 23 June 2016.

His evidence should be accepted as reliable and credible. The respondent had failed to

identify any motivation, reason or basis to explain why Scott Fenwick was untruthful or

mistaken about his evidence. He had completed his job sheet in the car immediately after

leaving the premises. He returned to the office and completed the certificate of execution

and report on service. His evidence was also corroborated by Grant Ferguson.

[69] In these circumstances, the court should conclude that messengers-at-arms executed

valid service of the interlocutor dated 7 June 2016 granting, inter alia, Perpetual Interdict on

the respondent on 23 June 2016.

Grant Ferguson

[70] Grant Ferguson was a Sheriff Officer’s Assistant. He had accompanied Scott Fenwick

on 23 June 2016 to serve the extract decree containing the Perpetual Interdict on 23 June 2016.

His evidence of what had taken place in the premises coincided with Scott Fenwick’s

evidence. When they entered the premises, there was a female behind the bar. She gave her

name as Tracy Wallace when Scott Fenwick asked her if he could speak to the respondent,

she had explained that the respondent was not present. She agreed to accept service of the

documents on behalf of the respondent. Grant Ferguson witnessed Scott Fenwick serving

the interdict on the respondent by leaving the documents with the person calling herself

Tracy Wallace at the premises at 3.55pm on 23 June 2016. He signed the certificate of

execution as a witness.

Page 34 ⇓

[71] In these circumstances, the court should conclude that messengers-at-arms executed

valid service of the interlocutor dated 7 June 2016 granting, inter alia, Perpetual Interdict on

the respondent on 23 June 2016.

Karen Anderson

[72] Karen Anderson was employed by the second petitioner as a Commercial Policing

Operations Executive. Her evidence should be accepted as reliable and credible. Her

evidence about Sky ‘s group structure, the technical services offered by Sky, the viewing

cards; the distinction between domestic and commercial viewing cards, the presence of Sky

“Bug”, and the creation and ownership of the copyright in the Works was all agreed in

terms of the Joint Minute of admissions and response to the notice to admit. Her witness

statement recorded the case history of the Interdict Proceedings including, the breach of

of interim interdict on 13 April 2016, the exchange of correspondence between the

petitioners’ agents and the respondent on 25 and 29 April 2016, the obtaining of decree on

7 June 2016, and service of the extract decree on 23 June 2016. These were background facts

that the respondent had refused to agree. However, Mr Tariq submitted that a disagreement

with these facts (with the exception of service of the decree on 23 June 2016), which went to

the knowledge, cannot form the basis of a defence to the proceedings for breach of interdict

and contempt of court. In her witness statement Karen Anderson also confirmed that the

advertisements noted by David Mackie and David Crookston during the half-time interval

of the broadcast were shown during the broadcast of the Aberdeen FC v Rangers FC match

on the Sky Sports 5 channel on 25 September 2016 and in the same order as they described.

Page 35 ⇓

[73] In relation to the respondent’s apparent reliance on a contract with Scotsport,

Karen Anderson refuted the suggestion that broadcasts of football matches communicating

the petitioners’ Works could be shown via a subscription with Scotsport. This was because

the only legitimate way for a licensed premises such as the premises to show Sky Sports

broadcasts was through a commercial subscription agreement. There is no business

relationship between Sky and Scotsport. Scotsport did not have rights to show Sky Sports

broadcasts. She also noted the substantial difference in subscription fees for an agreement

with Sky and one with Scotsport. The respondent stated that he paid £300 per month to

Scotsport. However, he had previously signed up to a commercial subscription agreement

with Sky. It was agreed that he had entered into an agreement with Sky for the premises on

21 May 2014 which was cancelled on 29 June 2014 for non-payment of fees. Sharon Stewart

entered into an agreement with Sky for the premises on 19 March 2017. Under this

agreement, the monthly payment for the premises is £612.33 plus VAT. The sum the

respondent allegedly was paying to Scotsport was roughly half the sum that he would have

paid to Sky for a commercial subscription agreement.

[74] In relation to the suggestion that the AFC Match was shown on a foreign broadcast,

she explained that Sky had exclusive rights to broadcast the match in the UK. Sky’s

broadcast would include its logos. She explained that the Premier League might sell the

rights to the same match to foreign broadcasters, although this would not include the

petitioners’ Works. She confirmed that Sky had no relationship with Trans World

International or any Norwegian broadcasters.

[75] Mr Tariq submitted that her evidence should be accepted as credible and reliable.

She was able to assist the court on the relationship between Sky and other broadcasters. The

respondent, on the other hand, has provided no credible basis to refute that evidence. In

Page 36 ⇓

these circumstances, the court should reject any suggestion that the broadcast of the

AFC Match at the premises on 25 March 2016 was legitimate (in the sense that it did not

infringe the petitioners’ copyright) and/or did not breach the terms of the interdict. The

broadcast featured, inter alia, the Sky Sports logos and other channel identifiers such as the

trophy wipe. It included the advertisements that were shown on Sky Sports 5; it had

English commentary; and it featured commentators and studio guests who were known to

feature on Sky Sports broadcasts.

[76] Mr Tariq then turned to consider the respondent’s witnesses.

Robert Stewart

[77] Mr Tariq began noting that although the respondent advanced several defences to

the proceedings for breach of interdict and contempt of court, he did not in fact refute what

has been said by the petitioners’ witnesses. He was not present when the interdict was

served on 23 June 2016 (thus he was in no position to dispute the accounts of Scott Fenwick

and Grant Ferguson); he was not present when the breach of interdict occurred on

25 September 2016 (thus he was in no position to dispute the accounts of David Mackie and

David Crookston); and he was in no position to assist the court on the relationship between

Sky and Scotsport and other broadcasters (thus he was no position to dispute the evidence

of Karen Anderson). Where there is any disagreement between the respondent and the

petitioners’ witnesses, their evidence should be preferred over his.

[78] Mr Tariq submitted that the respondent had attempted to distance himself from the

matters of this complaint. This drew attention to the following aspects of the respondent’s

account:

Page 37 ⇓

(1) the respondent said he was not aware that interim interdict was served on him

on 13 April 2016 for a couple of weeks;

(2) a member of staff impersonated his sister;

(3) the court documents addressed to him were left in the kitchen and not brought

to his attention;

(4) he did not receive the letter from the petitioners’ agents dated 29 April 2016

that was posted to the premises;

(5) he assumed that a member of staff discarded or misplaced the letter dated

29 April 2016;

(6) he overlooked that the same letter had been emailed to him;

(7) he assumed that because no reply was received to his letter dated 25 April 2016,

the matter of court proceedings (and the interim interdict taken against him)

had been resolved;

(8) he was not aware that Perpetual Interdict was served on him on 23 June 2016;

(9) another member of his staff impersonated Tracy Wallace; and

(10) no member of staff brought the court documents addressed to him to his

attention.

Mr Tariq suggested that individual aspects of this account were doubtful. If read together,

the whole account was entirely fanciful and wholly incredible. In these circumstances, the

petitioners invite the court to find the respondent to be an unreliable and incredible witness.

Even if the court was to believe this account, it still provides no answer to the fact that he

cannot rely on his own failures as the designated premises manager to avoid culpability for

a breach of interdict and contempt of court.

Page 38 ⇓

Sharon Stewart

[79] Sharon Stewart was the sister of the respondent. She was involved in the running of

the premises. She previously worked there part-time and was now the tenant and operator

of the premises. She is not a party to these proceedings but she has played an active role is

assisting the respondent in these proceedings. There was a suggestion that, while the

respondent remained the designated premises manager as at 25 September 2016,

Sharon Stewart was working most of the week in which the breach was committed in

preparation for taking over the lease. She explained (in her witness statement) that:

“I was on the premises from 19 September 2016 until the beginning of my leasehold

in order that I received the necessary training required under the Licensing

(Scotland) Act 2005 and additional training to cover the complete operations and

management of running the premises including the stock order, cellar control and

contract management”.

However, Mr Tariq submitted that this did not absolve the respondent of his responsibilities

as the designated premises manager. Further, it appeared that it would have been the

respondent who was providing the training and, as such, he was also present at the

premises during that week.

[80] Mr Tariq submitted that Sharon Stewart was not a credible and reliable witness. In

her witness statement, she explained that she was working at the premises on 25 September

2016. In reference to the AFC Match on 25 September 2016, she said “this football game was

not broadcast on the premises and a commercial contract with Scotsport Sat Ltd had been in

place to show alternative games”. She denied “showing any such football games”, and she

was being “extra vigilant to ensure no such broadcasting was shown by any other method

by anyone on the premises”. If the court were to believe the evidence of Sharon Stewart,

who was the sister of the respondent, it would have to disbelieve the evidence of

David Mackie and David Crookston. Both had 30 years’ experience as police officers,

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latterly serving as respectively, Detective Inspector and Detective Constable. Both were

experienced in investigatory work of this nature. Both had no reason to be untruthful. She

had an obvious personal interest in the matter. The respondent is her brother. This is a

serious allegation made against him. As a consequence where there was any disagreement

between Sharon Stewart and the petitioners’ witnesses, their evidence should be preferred

over hers.

Conclusion

[81] The petitioners invite the court to find that the respondent has communicated the

Works, referred to in the Summons, to the public on 25 September 2016 and in doing so, has

breached the interdict pronounced by this court on 7 June 2016 and is in contempt of court.

Submission Relevant to Disposal

[82] In that event, the case should then be continued to a hearing on the question of what

punishment the court should impose on the respondent. The respondent should be

ordained to appear at that hearing. If the court wishes to deal with sentencing at the end of

the Proof, the petitioners invite the court to consider the following matters:

(i) The conduct of the respondent throughout these proceedings. A review of the

court’s interlocutors in the process will show a series of failures to comply with

court orders. The most recent example before this court was the failure to lodge

witness statements in accordance with the court’s interlocutor and ignoring the

numerous correspondence sent by the petitioners’ agents requesting witness

statements and productions.

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(ii) The breach was not admitted at an early stage. Most breaches of interdict and

contempt of court proceedings raised by the petitioners result in the breach being

admitted and an imposition of a court fine, on the basis of the clear evidence of

the breach supported by the call reports of ID Inquiries investigators. If the

petitioners are successful at Proof, there is a likelihood that the respondent

and/or his witness has been untruthful in evidence under oath and put the

petitioners to substantial time and expense in policing their intellectual property

rights and the court’s order.

(iii) The disposals granted in other breach of interdict and contempt of court

proceedings include:

(a) British Sky Broadcasting Group Plc v Avalonbar Ltd (A496/13) - the court

pronounced a fine of £5,000 against the first defender and £2,000 against

the second defender following Proof on the breach of interdict and

contempt of court;

(b) British Sky Broadcasting Group Plc v SMJS (Muirhead) Ltd (A526/14) - the

court pronounced a fine of £1,500 against the first defender and £700

against the second defender after the breach was admitted without the

need for Proof;

pronounced a fine of £1,750 against the first defender and £1,000 against

the second defender after the breach was admitted without the need for

Proof; and

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(d) Sky Plc v D.E.M. Diam Ltd (A761/15) - the court pronounced a fine

of £2,000 against the first defender and £750 against the second defender

after the breach was admitted without the need for Proof.

(iv) The respondent’s offence is not to show one football match but a disobedience of

the court’s order and authority.

(v) The need for any disposal to be an adequate deterrence to others. There is a high

number of interdicts obtained by the petitioners from this court that end up in

further proceedings for breach of interdict and contempt of court. Statistics

shows that almost 30% of these interdicts end up with further proceedings before

this court.

(vi) The respondent is in the process of being sequestrated for outstanding sums due

to the petitioners from the first proceedings but he is opposing his sequestration.

The petitioners are likely to be left substantially out-of-pocket as a result of the

previous unsatisfied decree and the expenses of policing its rights and the court’s

order in these proceedings.

Discussion

The Credibility and Reliability of Witnesses and Determination of Principal Issue of Fact

[83] Reduced to its essentials, the stark difference between the parties is whether the

football game admittedly broadcast via the device in the premises on 25 September 2016 was

a Sky match, as Sky contend, or it was not, as the respondent maintains. Both parties cannot

be right and so it is appropriate that I determine that issue having regard to issues of

credibility and reliability.

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[84] Mr Tariq invited the court to find Sharon Stewart and Robert Stewart lacking in

credibility and reliability for the reasons he identified. I accept that submission.

Sharon Stewart was, in my view, completely lacking in credibility. In her oral evidence she

changed her position several times in relation to what was shown and whether the match

being broadcast was in English or in a foreign language. The problem with the latter

explanation is that she had also stated that foreign-language broadcasts had prompted

complaints from customers, so the sound would be turned down. In these circumstances,

there would be nothing for the inquiry agents to hear. She then retreated to the position of

not knowing or recalling what was broadcast. When pressed in cross about the import of

what the enquiry agents had seen and (importantly, in this context) heard, namely the

English - speaking Sky commentators, her position changed again to suggest that she might

have been doing a stock check or taking a lunch break in the premises’ kitchen.

Furthermore, these passages in her oral evidence were at variance with the adamant position

she had adopted in her witness statement and that she was being “extra vigilant”- a

characterisation she expressly retracted in cross, either because she wasn’t being “extra

vigilant” about the subject-matter of the question, or that she was not being “extra vigilant”

until she took over in early October 2016.

[85] I also note that in her witness statement, after noting that there were only ten

members of the public in the premises on 25 September, she stated: “I think it is reasonable

that I would not have shown illegal broadcasting to that amount of customers …”. While

this was offered as an exculpatory statement, the words I have highlighted in bold indicate

that she well knew that broadcasting Sky content was illegal. It is also highly suggestive

that she was aware of the capacity to do so via the device in the premises. It was just that, as

she suggested, it was not worth running the risk for only ten people. The critical point, in

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this context, is that it was implicit in this passage that by using the device available in the

premise she was capable of running that risk.

[86] She was wholly incredible and I place no reliance on her evidence.

[87] In relation to the reliability or credibility of Robert Stewart’s evidence, there is also a

basis for grave concern. In his answers he denied receiving service of either the Summons

initiating the Interdict Proceedings or the certified copy interlocutor granting Perpetual

Interdict. However, in his oral evidence he was driven to accepting that he had received

service on both occasions. Leaving aside the improbability of a person impersonating his

sister on the first occasion of service or of a person impersonating a named employee on the

second occasion (explanations that emerged in his written witness statement), his denial of

receipt of notice of the Summons is contradicted by the terms of the April exchanges. Again,

while his position was initially to deny receipt of the Burness Paull letter, this became

untenable when it was pointed out that he had replied to their letter of 13 April by his own

letter of 25 April and, further, that Burness Paull’s reply had been sent to his personal email

as well as by post.

[88] Mr Stewart’s evidence was also troublingly inconsistent when it came to whether or

not the Scotsport device was capable of broadcasting Sky content, especially Sky Sport

football games. The position advanced in his answers was that whatever was broadcast was

via European broadcasters. He repeated this contention in his letter to Burness Paull of

25 April 2016. In his oral evidence, though, he appeared to start with this as an explanation.

However, he could not plausibly explain how a foreign broadcast could be switched at the

press of a button to an English language broadcast, without this becoming a Sky Sport

broadcast (if it were a match for which Sky had exclusive rights in the UK). This explanation

then gave way to the chapter of evidence about his contract with Scotsport.

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[89] His position about Scotsport was also problematic. On the one hand, he maintained

that it was impossible to broadcast Sky content via the device supplied by Scotsport. On the

other hand, he gave evidence about a call made to Scotsport and a call they made back to

him a few days later, to the effect that it was “all sorted”. The critical difficulty for

Mr Stewart with this chapter of his evidence is that, if the first contention were correct (that

it was not possible to broadcast Sky content via the Scotsport device), then he would not

need to rely on them to sort anything. There would not be anything for Scotsport “to sort”.

Conversely, he would only need to invoke Scotsport’s assistance if the device was capable of

showing Sky content. This would mean that the first contention was incorrect. When this

difficulty was put to him in the course of his submissions for him to offer an explanation, he

was unable to do so. As I understood him, he ultimately plumbed for the first proposition

that it was not possible to show Sky content, albeit his answer was to ask rhetorically why

he would show it when he had only 5 days left before his sister took over the running of the

premises. That answer, however, echoes Sharon Stewart’s purportedly exculpatory

statement, discussed above. Implicit in his response was the prospect that Sky content could

be accessed, it is just that it was not worth running that risk just a few days before

Sharon Stewart took over. The fact that both Sharon Stewart and Robert Stewart both

referred to the possibility of running this risk is striking, even if they offered different

reasons for choosing not to run the risk on that occasion. The risk could not arise, if

Robert Stewart were correct in his first contention that the device was incapable of

broadcasting any Sky content.

[90] Having regard to the foregoing, I find the evidence of Sharon Stewart and

Robert Stewart to be wholly lacking in credibility. I place no reliance on their evidence, to

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the extent that it is inconsistent with or contradicted by other evidence or material placed

before me.

[91] Turning to the petitioner’s witnesses, I accept the submission that they were credible

and reliable. I accept their evidence without qualification. The evidence of the two enquiry

agents was particularly compelling. Their evidence was clear and cogent, and corroborated

each other. Further, there was the striking overlap between their identification of the names

of the advertisers, whom they had identified, and the order in which the Sky advertisements

had appeared, and Karen Anderson’s evidence derived from the advertisement log. I also

accept her evidence on the technical matters, the exclusivity of the rights Sky enjoys for

broadcasts within the UK and that Sky do not enter into any licence or contact arrangements

that would have enabled a third party lawfully to broadcast Sky’s sport content in the UK.

Having regard to all of this evidence, I find it proved beyond reasonable doubt that the

football game broadcast in the premises on 25 September 2016 was a Sky match and one

containing those elements of the Works spoken to by Mr Mackie and Mr Crookston. There

is, accordingly, breach of the Perpetual Interdict. It does not necessarily follow, however,

that this constitutes a contempt of court. The next question that arises is whether that breach

constitutes a contempt of court.

Whether the Breach Constitutes Contempt of Court

[92] I accept Mr Tariq’s submissions as a careful and full exposition of the law.

Mr Stewart did not take issue with any feature of them. It was not suggested that the

broadcast of the AFC Match was accidental or inadvertent. Accordingly, in respect of the

test to be applied, I proceed on the basis (1) that there must be a wilful breach of the

Perpetual Interdict on the part of the respondent, in the sense of a breach that was not

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accidental, and (2) that where a breach of a court order is shown, that failure demands a

satisfactory explanation and excuse, which failing the court may find there to be a contempt

of court.

[93] On the evidence, it is clear that the respondent was aware of Sky’s intentions to

pursue him for an alleged breach of its copyright in the Works by April 2016. He also knew

at that stage that the Interdict Proceedings were based on the alleged broadcast made via a

device in the premises. This could only be the Scotsport device the respondent received

from them, as this was the only device in the premises. In his exchanges with Sky, he had

asserted that broadcast had been via a European broadcaster. It was around this time, too,

that he said he had invoked the assistance of Scotsport Limited. However, by the time that

the Perpetual Interdict was granted and he became aware of it (which he accepted was by no

later than late June or July 2016), the respondent knew or ought to have known that those

explanations had not been accepted in respect of his use of the ScotSport device to play live

broadcasts of football games. He knew or ought to have known that Sky asserted its rights

to the Works and that Sky had obtained a court judgement, namely the Perpetual Interdict to

protect those rights. Further, he knew or ought to have known that Sky’s rights in the

Works had been infringed by his use of the Scotsport device in the premises.

[94] Notwithstanding this state of knowledge, the respondent made no changes to his

commercial arrangements. There is no suggestion that he had taken any steps to instruct

staff working in the premises as to the more limited use to be made of the device, to ensure

that there was no breach of the Perpetual Interdict. There is no suggestion that he put in

place any other system, apart from training, to ensure that any use of the device would be in

a manner compliant with the Perpetual Interdict. Indeed, this failure is in my view all the

more culpable given that he had said he had been training his sister in management of the

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premises during the first 2 weeks of September; that she had also made reference to this

training; and to the fact that this had extended to dealing with the Scotsport contract, but

that nonetheless he did not give her any instructions to ensure that any use of the device

was in accordance with the Perpetual Interdict. At times, the respondent sought to deflect

responsibility: he had not received service of the Summons or the Perpetual Interdict; he

was not in the premises on 25 September 2016; if the decision was taken to broadcast a

match on 25 September, he was not there and this was not his responsibility. However, in

his evidence the respondent did accept that as the designated premises manager at the

material time he was responsible for what took place in the premises, even if he was not

present. He is responsible in law for the broadcast of the AFC Match in the premises that

took place in his absence.

[95] In my view, the respondent was fully aware of the fact that any further use of the

Scotsport device to show live broadcasts of football matches in the UK entailed taking a risk

of further breaching Sky’s rights in the Works, in disregard of the Perpetual Interdict. He

took no steps to avert that risk or to ensure that if the device were used for the broadcast of

live football matches that it would be done in such a manner as to obtemper the Perpetual

Interdict. I find it established beyond reasonable doubt that this was a wilful breach of the

court’s earlier order and constitutes a contempt of court.

Disposal

[96] In the light of my finding, I shall put the case out By Order on Thursday 16

November 2017 at 10am to consider the appropriate disposal, to consider what further

information should be provided to the court in relation to any proposed disposal, and to

afford the respondent an opportunity to address the court on these matters.