FAPL v Luxton [2016] EWCA Civ 1097

9 November 2016

Martin Howe QC appeared for the appellant (defendant) and Lindsay Lane, led by Helen Davies QC, appeared for the respondent (claimant) in this appeal against the grant of summary judgment for copyright infringement against a publican who had shown Premier League football matches in his pub using a satellite decoder card imported from another EU Member State but which had been issued by the broadcaster there for domestic use only. The appellant argued that he was in effect compelled to use a domestic-only satellite card in order to receive the broadcasts containing the Premier League matches because there was an unlawful agreement between the claimant FAPL and its licensees in other Member States to restrict the availability of commercial decoder cards and so isolate the UK commercial (pubs etc) market from the market in other Member States.

The Court of Appeal (leading judgment given by Floyd LJ) held that the right relied upon by FAPL did not depend upon the card concerned being a foreign card, and would equally be enforceable against the defendant if he had used a domestic decoder card of UK origin, and FAPL’s enforcement of its right did not become unlawful even on the assumption that an illicit agreement of the kind alleged by the defendant existed

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