British Horseracing Board wins appeal by a nose

The Court of Appeal judgment in Attheraces v The British Horseracing Board has arrived. In a monster of a judgment, Lord Justices Mummery, Sedley and Lloyd (speaking as one) have decided that Mr Justice Etherington in his High Court decision got it wrong in deciding that BHB was abusing its dominant position in the market of pre-race data.

The judges agreed with the High Court that BHB were dominant in the relevant market, being that of pre-race data in the UK for supply to countries outside the UK and Ireland. However, they did not agree that BHB abused this position of dominance contrary to Article 82 EC or section 18 of the Competition Act 1998. The gist of the argument appears to be that, although BHB did charge high and discriminatory prices, this did not amount to an abuse because its customers were different. It could therefore justifiably charge different rates to different customers, depending on what they could get away with, and could refuse to supply its data on justifiable grounds. There was, of course, an awful lot more to it than that, but the IPKat (whose head is hurting already) does not have time at present to go into the detail. However, it appears that what BHB may have lost on the swings of database right they have gained on the roundabout of competition law.