The Court of Appeal has delivered judgment in BT v. BSkyB and others  EWCA Civ 133, the latest development in the long-running litigation following the publication by Ofcom in March 2010 of a statement in which Ofcom concluded it would be appropriate to impose licence conditions regulating the wholesale supply of Sky Sports channels. In August 2012, the Competition Appeal Tribunal had allowed Sky’s appeal against that statement.
The Court of Appeal has remitted the case to the CAT, finding that the CAT’s 361-page judgment did not sufficiently address a central issue which the Court of Appeal concluded had been relied on by Ofcom as a basis for imposing the licence conditions. In particular, the Court of Appeal concluded that, when setting aside Ofcom’s remedy, the CAT had not adequately considered Ofcom’s competition concerns arising out of the prices at which Sky was prepared to wholesale its Sky Sports channels. The Court of Appeal considered that this was an error of law because the CAT is required by statute to decide appeals on the merits and gave guidance on the correct approach to be taken by the CAT upon such appeals (see, e.g., paragraph 88).
The Court of Appeal’s judgment also considers the scope of Ofcom’s powers under section 316 of the Communications Act 2003 to impose conditions in broadcasting licences concerning competition matters, which had not previously been the subject of judicial determination. On this issue, the Court of Appeal upheld the CAT’s determination, concluding that Ofcom did have jurisdiction to impose the licence conditions in issue.
The judgment is here.
The Times report is here.
Sarah Ford appeared for BT, instructed by BT Legal.
James Flynn QC and David Scannell appeared for Sky, instructed by Herbert Smith Freehills.
Helen Davies QC and Richard Blakeley appeared for FAPL, instructed by DLA Piper.
Gerard Rothschild appeared for Virgin Media, instructed by Ashurst.