Bookmakers' Afternoon Greyhound Services Ltd & Ors v Amalgamated Racing Ltd & Ors (No 2) [2008] EWHC 2688 (Ch)

[2008] EWHC 2688 (Ch)Case No HC07C02416
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 th November 2008
Before
MR JUSTICE MORGAN
Between
BOOKMAKERS’ AFTERNOON GREYHOUND SERVICES LIMITEDClaimantsCORAL RACING LIMITEDClaimantDONE BROS (CASH BETTING) LIMITEDClaimantLADBROKES BETTING AND GAMING LIMITEDClaimantWILLIAM HILL ORGANIZATION LIMITEDClaimantAMALGAMATED RACING LIMITEDDefendantsRACING UK LIMITEDDefendantALPHAMERIC PLCDefendantALPHAMERIC GAMING LIMITEDDefendantRACECOURSE MEDIA SERVICES LIMITEDDefendantRACECOURSE INVESTMENTS LIMITEDDefendantTHE WESTERN MEETING CLUB LIMITEDDefendantBANGOR-ON-DEE RACES LIMITEDDefendantTHE BEVERLEY RACE COMPANY LIMITEDDefendantCARTMEL STEEPLECHASES (HOLKER) LIMITEDDefendantTHE CATTERICK RACECOURSE COMPANY LIMITEDDefendantTHE CHESTER RACE COMPANY LIMITEDDefendantGOODWOOD RACECOURSE LIMITEDDefendantTHE HAMILTON PARK RACECOURSE COMPANY LIMITEDDefendantTHE LUDLOW RACE CLUB LIMITEDDefendantMUSSELBURGH RACECOURSE COMPANY LIMITEDDefendantNEWBURY RACECOURSE PLCDefendantTHE PONTEFRACT PARK RACE COMPANY LIMITEDDefendantREDCAR RACECOURSE LIMITEDDefendantTHE BIBURY CLUB LIMITEDDefendantTHIRSK RACECOURSE LIMITEDDefendantWETHERBY STEEPLECHASE COMMITTEE LIMITEDDefendantYORK RACECOURSE LIMITEDDefendantAND BY WAY OF COUNTERCLAIM
Between
AMALGAMATED RACING LIMITEDRACECOURSE INVESTMENTS LIMITEDTHE WESTERN MEETING CLUB LIMITEDBANGOR-ON-DEE RACES LIMITEDTHE BEVERLEY RACE COMPANY LIMITEDCARTMEL STEEPLECHASES (HOLKER) LIMITEDTHE CATTERICK RACECOURSE COMPANY LIMITEDTHE CHESTER RACE COMPANY LIMITEDGOODWOOD RACECOURSE LIMITEDTHE HAMILTON PARK RACECOURSE COMPANY LIMITEDTHE LUDLOW RACE CLUB LIMITEDMUSSELBURGH RACECOURSE COMPANY LIMITEDNEWBURY RACECOURSE PLCPONTEFRACT PARK RACE COMPANY LIMITEDREDCAR RACECOURSE LIMITEDTHE BIBURY CLUB LIMITEDTHIRSK RACECOURSE LIMITEDWETHERBY STEEPLECHASE COMMITTEE LIMITEDNICHOLAS HUGH TREMAYNE WRIGLEY (on his own behalf as member of and as representative of the members of YORK RACE COMMITTEE)Counterclaimants
Between
BOOKMAKERS’ AFTERNOON GREYHOUND SERVICES LIMITEDClaimantsCORAL RACING LIMITEDClaimantsDONE BROS (CASH BETTING) LIMITEDClaimantsLADBROKES BETTING AND GAMING LIMITEDClaimantsWILLIAM HILL ORGANIZATION LIMITEDClaimantsAND BY WAY OF ADDITIONAL CLAIMAMALGAMATED RACING LIMITED1 ST DefendantSATELLITE INFORMATION SERVICES LIMITEDAND BY WAY OF ADDITIONAL CLAIMSATELLITE INFORMATION SERVICES LIMITEDThird Party
Between
AMALGAMATED RACING LIMITED1 st Defendant
Nicholas Green QC, Pushpinder Saini QC, Mark Hoskins, Sarah Abram & Emily Wood (instructed byS J Berwin) for ClaimantsPeter Roth QC, Brian Doctor QC, Paul Harris, Ronit Kreisberger& Ewan West (instructed by Wiggin) for DefendantsCharles Hollander QC, Helen Davies QC & Victoria Wakefield (instructed by Olswang) for Third PartyHearing Hearing dates: 1 st, 2 nd, 6 th,7 th,8 th,9 th,12 th,13 th,14 th,15 th,16 th,19 th,20 th,21 st,22 nd,23 rd of May and 3 rd, 4 th, 5 th, 6 th, 9 th, 10 th, 11 th, 17 th, 18 th, 19 th, 20 th, 23 rd, 24 th and 26 th June 2008
SECOND JUDGMENTMr Justice Morgan:[Heading]Paragraph Introduction 1 The legal principles 10 The right approach to the evidence 13 Industry and other bodies 19 Public statements 26 The opportunity for collusion 32 Motive 34 The Defendants’ case on the special position of Coral 36 Specific matters 37 Discussion and conclusions 136 The overall result 142

Introduction

[1]On 8th August 2008, I handed down judgment dealing with all but two of the claims which required to be decided in this action. The two claims which were not the subject of my earlier judgment were claims made by some of the Defendants against some of the Claimants. This second judgment now deals with those two claims. In this second judgment I will continue to use the abbreviations used in my earlier judgment. Where I refer to “the Claimants” and to “the Defendants” the reference is to those Claimants and those Defendants who are the relevant Claimants or Defendants, as the case may be, for the purposes of these two claims.[2]Speaking generally, the two claims which are the subject of this judgment are of collusive behaviour by certain bookmakers contrary to Article 81 of the EC Treaty. Originally, the Counterclaim made four claims of collusive behaviour on the part of certain bookmakers. In the course of his closing submissions, but not earlier, Mr Roth QC who appeared on behalf of the Defendants stated that the Defendants were not pursuing two of the four claims.[3]The first of the four claims pleaded in the Counterclaim was of an alleged unlawful concerted practice by BAGS and/or Coral, Ladbrokes and William Hill not to take LBO licences for what had been described as the April racecourses. That claim has now been abandoned.[4]The second such claim made by the Counterclaim was of an alleged concerted practice by BAGS and/or Coral, Ladbrokes and William Hill not to take an LBO licence for the Kempton Park evening races. That claim also has now been abandoned.[5]The next claim made by the Counterclaim, which claim remains a live claim, was that there was an unlawful concerted practice by Coral, Ladbrokes, William Hill and BetFred to refuse to purchase Turf TV, in effect, to boycott Turf TV. More specifically, the Defendants have pleaded that the four bookmakers to whom I have referred were parties to an agreement and/or a concerted practice to refuse to purchase Turf TV and/or to exclude or impede AMRAC’s entry to and/or to hinder or jeopardise AMRAC’s survival in the relevant market or markets. It is further pleaded that this agreement or practice had the object or effect of restricting or distorting competition in the relevant markets being, first, a market for the provision of televised broadcasts of live horseracing to LBOs and, secondly, the market for the acquisition of LBO rights. The Counterclaim pleads that this agreement or practice came to an end at an unspecified date but, at any rate, by the time that Coral signed an agreement to purchase Turf TV on or about the 22nd December 2007. Coral’s action was followed by Ladbrokes agreeing to take Turf TV on 1st January 2008 and William Hill agreeing to take Turf TV on 11th January 2008. BetFred had not agreed to take Turf TV at any time before or during the trial of this claim.[6]The fourth allegation of collusion on the part of bookmakers, and the second allegation which needs to be dealt with in this judgment, was that there was an unlawful concerted practice by Coral, Ladbrokes and William Hill (but not BetFred) to withdraw sponsorship from certain racecourses that had licensed their LBO rights to AMRAC. More specifically it was pleaded that Coral, Ladbrokes and William Hill were parties to an agreement and/or a concerted practice to curtail and/or to withdraw their current sponsorship and/or to refuse to provide future sponsorship of fixtures at AMRAC racecourses. It was said that this practice had the object or effect of restricting or distorting competition in three ways. The first way was to restrict competition directly between AMRAC racecourses and other racecourses, from which fixtures were broadcast on SIS FACTS, in the market for the provision of horseracing services by racecourses. The second way was to restrict competition between AMRAC and SIS in the upstream market for the acquisition of LBO rights. The third way was to restrict competition between AMRAC and SIS in the downstream market for the supply of televised broadcasting of live British and Irish horseracing to LBOs.[7]The prayer for relief identifies the relief sought by some or all of the Defendants in relation to the two allegations of collusion which are made against the bookmakers. As regards the allegation of a boycott of Turf TV, AMRAC alone (and not the other Defendants) seeks a declaration that each of Ladbrokes, William Hill and BetFred was, from a time to be determined until at least 22nd December 2007, a party to an unlawful agreement or concerted practice. In relation to the allegation as to withdrawal of sponsorship, the 18 racecourse operators claim an order that each of Ladbrokes and William Hill be restrained from giving effect to and/or agreeing and/or concerting with each other, or with Coral, as regards the sponsorship of horseracing fixtures at racecourses that have or may grant a licence of LBO rights to AMRAC. It will be seen that, in relation to the claimed declaration and the claimed injunction, no relief is sought against Coral. That is because these claims, which were originally made against Coral also, were the subject of a global settlement with Coral, so that no relief is currently claimed against Coral.[8]In addition to the above, the counterclaiming Defendants claim damages. The Defendants have given voluntary further and better particulars regarding the loss and damage they say they suffered. In relation to the alleged boycott of Turf TV, the only party said to have suffered a loss is AMRAC and its losses are particularised in a way I need not at present describe. As regards the allegation in relation to sponsorship, a distinction is made in the particulars between 4 operators of racecourses (Newmarket, Sandown, York and Newbury) and the operators of other racecourses. In relation to the 4 named racecourses, it is said that the operators of those racecourses had sponsorship withdrawn by Coral or Ladbrokes or William Hill so that they were forced to look elsewhere for sponsorship and to the extent that they did not find replacement sponsorship or received a lower net amount from replacement sponsorship, they suffered a loss. As regards the operators of the other racecourses, they are said to have lost a chance of obtaining sponsorship from Coral or Ladbrokes or William Hill.[9]In their Defence to Counterclaim, the Claimants deny that there was ever an agreement or a concerted practice to boycott Turf TV. As regards the allegation relating to sponsorship, it is admitted that decisions were taken not to sponsor certain races by certain bookmakers but those decisions were taken independently of each other and were for commercial reasons.

The legal principles

[10]The claims which are the subject of this judgment are brought pursuant to Article 81 of the EC Treaty and Section 2(1) of the Competition Act 1998. I have set out the terms of those provisions in my first judgment: see paragraphs 289 and 295 of that judgment. Both of these provisions refer to agreements and concerted practices which have as their object or effect the prevention, restriction or distortion of competition.[11]In my first judgment, I discussed the legal principles and the authorities which deal with claims of the present kind. I will not repeat that material in this judgment. I draw attention, however, to paragraphs 14 and 15 of the Article 81(3) Guidelines which are referred to in paragraphs 304 and 305 of my earlier judgment and the lengthy citation from the Argos case, which is set out at paragraph 307 of my earlier judgment. In particular, I draw attention to the contrast in the passages there set out between what is called “coordination of behaviour or collusion” on the one hand and independent action on the other. I also draw attention to the statement in the Argos case (quoted at paragraph 307 of my earlier judgment) to the effect that parallel behaviour on the part of competitors may amount to strong evidence of a concerted practice, if the behaviour leads to conditions of competition which do not correspond to the normal conditions of the market.[12]The Argos case itself referred to the decision of the ECJ in Suiker Unie v Commission [1975] ECR1663. The head note to the Suiker case at paragraph 4 contains an often quoted description of what is meant by a “concerted practice”. Much of that description appeared in the citation I have made from the Argos case. In addition the Suiker decision makes clear that the requirement of independence: “does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors”: see the head note at page 1665 of the report.

The right approach to the evidence

[13]Both sides to this present dispute addressed me in detail on the burden and standard of proof and also on general matters which might be of assistance in reacting to the evidence given in this case.[14]In paragraphs 392 to 393 of my earlier judgment I summarised the legal position in relation to the burden and standard of proof and I need not repeat that material in this present judgment.[15]I was also reminded of the comment by Lord Denning MR in Registrar of Restrictive Trading Agreements v W H Smith & Son Limited [1969] 3AllER 1065 at 1068D-E where he said:
“People who combine together to keep up prices do not shout it from the house tops. They keep it quiet. They make their own arrangements in the cellar where no one can see. They will not put anything into writing, nor even into words. A nod or a wink will do.”
[16]In Aalborg Portland v Commission [2004] ECR 1-123 the ECJ said at paragraphs 55 to 57:
“Since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.”
[17]The Competition Appeal Tribunal when giving its decision in JJB Sports v OFT [2004] CAT 17 said, at paragraph 206:
“…cartels are by their nature hidden and secret; little or nothing may be committed to writing. In our view even a single item of evidence, or wholly circumstantial evidence, depending on the particular context and the particular circumstances may be sufficient to meet the required standard…”
[18]In his closing submissions, Mr Roth offered some further general comments about the fragments of evidence that may or may not be available and may or may not assist in a case involving an allegation of collusion. He pointed out that documents which pointed, even obliquely, to the existence of an agreement or concerted practice had particular weight. However, it was to be expected that parties to collusion would take care to ensure that no record of their collusion was kept. Such a party would avoid taking minutes of their meetings and might indeed go to some lengths to record in writing statements which concealed the true nature of the discussion. Indeed, it was only when the parties slipped up or something took place outside their control to reveal their discussions and their action that the Court might get a glimpse of the agreement or practice. Necessarily, such slip-ups were likely to be rare. The evidence of the slip-ups was likely to be fragmentary. He urged me to give proper weight to fragments of evidence which might on their own not amount to very much but if the various fragments were pieced together a more coherent picture might emerge. He also made the point that e-mails are sometimes written in a less guarded way with no expectation that they will ever see the light of day, much less the light of a trial with cross examination, but yet such e-mails can be immensely revealing of the true state of affairs. I am prepared to accept Mr Roth’s comments on these matters as generally true and potentially helpful to me.

Industry and other bodies

[19]Before considering the various pieces of evidence relied upon by the Defendants to advance their claims of collusion, it is necessary to reflect on the relevance of two more general matters, first, the fact that there are various industry bodies which represent the interests of some or all bookmakers and there are other bodies in which various bookmakers participate and, secondly, the fact that Coral, Ladbrokes, William Hill and BetFred made a large number of public statements over the period relevant to these claims and in those statements they gave their views as to the possible arrival of AMRAC.[20]I will start first with the various industry and other bodies and their implications for present purposes. In my earlier judgment I referred to the Association of British Bookmakers (“the ABB”): see paragraph 44. I similarly referred to the Bookmakers Committee: see paragraph 47. At paragraphs 12 and 13 I referred to BAGS, its involvement in the industry and its membership. At paragraph 27 I referred to SISH and the involvement of bookmakers in that company. What matters for present purposes is that representatives of bookmakers, including the bookmakers against whom the claims of collusion are now being made, took part in various ways in the affairs of one or more of these bodies. In doing so, they discussed Turf TV and AMRAC. In general, they were hostile to Turf TV and AMRAC. Further, to advance the interests of the bookmaker industry or the interests of BAGS or SISH, it may be that they discussed and collaborated in taking steps to advance those interests. Does collaboration of that kind amount to an agreement or concerted practice which is unlawful under Article 81 of the EC Treaty or Section 2(1) of the Competition Act 1998?[21]As it happens, no one in this case asserts that such conduct is unlawful. Mr Saini QC who argued this part of the case on behalf of the Claimants submitted that such conduct could not be said to be unlawful. Mr Roth on behalf of those Defendants who bring these claims also did not assert that such conduct was unlawful. In his opening submissions, Mr Roth said:
“…of course the bookmakers are entitled to have committees and sub-committees and working groups and what have you. And the formal business transacted is no doubt entirely legitimate.”
[22]In his closing submissions, Mr Roth distinguished between an individual bookmaker wearing his industry hat and wearing his company hat. He suggested that the individual had to be careful as to statements he made to advance the interests of bookmakers generally (when participating in an industry body), or the interests of BAGS or SISH when participating in the affairs of those companies, from the position and intentions and conduct of Ladbrokes or William Hill or BetFred. Mr Roth suggested that it would be an elementary precaution for the discussions at an industry body, or BAGS or SISH, to be carefully minuted so that it would be absolutely clear to any reader of the minutes that the individual had remained on the right side of a dividing line between what is permissible and what is unlawful. Indeed, Mr Roth developed this submission by contending that the absence of minutes of the many meetings attended by individual bookmakers gave rise to suspicion that minutes were not being taken for the very purpose he had identified earlier, namely, to avoid there being a written record of incriminating conduct.[23]In the light of Mr Roth’s submissions, I proceed on the basis that the Defendants accept that participation in the affairs of an industry body, or the affairs of BAGS or SISH, which participation takes the form of discussing the attitude which the industry or BAGS or SISH should take to Turf TV, is not unlawful. What is said by the Defendants to be unlawful is an indication by a bookmaker company, whether Coral, Ladbrokes, William Hill or BetFred, of that individual company’s intentions, in circumstances where that indication leads to collusion between competitors as to their behaviour.[24]On the subject of the minutes of various meetings, Mr Roth emphasised that the opportunity for collusion between the various bookmakers was ever present. He drew up a list of some 37 meetings where, he said, there was no documentary record of what was discussed. It is clear on the evidence that there was no sudden change of practice at any relevant point in time when, for example, meetings that were traditionally minuted suddenly stopped being minuted or meetings which were minuted at length suddenly became the subject of cursory and uninformative minutes. Accordingly, the position in relation to these 37 meetings is that the Court, and the parties, do not have a minute of what was discussed. The absence of minutes does not of itself prove that there were discussions at those meetings which amounted to collusion. What was said at those meetings, if it is to be argued that collusive behaviour occurred, must be proven by admissible evidence. Further, the Claimants pointed out that in relation to the 37 meetings, carefully catalogued in the Defendants’ submissions, there had only been cross-examination in relation to 6 of those meetings. The Court is therefore entitled to examine the evidence in relation to those 6 meetings, where specific evidence was given, but, in my judgment, the Court is not entitled to make any assumptions in the Defendants’ favour that there must have been collusion at the other 31 meetings.[25]I have taken time to refer to this subject of industry bodies, and any discussions for the purpose of advancing the interests of BAGS and SISH, because it has the consequence that it does not automatically follow from the fact that one bookmaker talks to another bookmaker on the subject of Turf TV, expressing hostility to it, that those bookmakers are colluding as to a matter which ought to be the subject of independent action by competitors. They may be legitimately discussing the attitude which should be adopted by the industry generally, or the action to be taken by BAGS or SISH in the interests of BAGS or SISH, as the case may be.

Public statements

[26]The parties made careful and detailed submissions to me as to the relevance of the many public statements, in particular statements in the press, by representatives of Coral, Ladbrokes, William Hill and BetFred. Mr Roth had accepted in his opening submissions that he could not rely on a public statement made by one of the bookmaker companies as to the attitude of that company. In view of the statements in the authorities as to the inappropriateness of an operator in a market making known to a competitor the intended behaviour of the operator, and in view of the comparative width of the language in which the concept of concerted practice is described, I pressed Mr Roth to explain why there was a dividing line between public and private statements in this way. Mr Roth dealt with this matter in his written closing submissions. He contrasted the impact of a public statement on the listener or reader of it with the impact of a similar statement made in the confines of a private meeting with a competitor. A statement in a private meeting, he said:
“takes on a quite different character for the purposes of Article 81(1).”
In his oral closing submissions, Mr Roth made the same point by reference to evidence given by Mr Bell of Ladbrokes. Mr Bell had explained that he would pay very little attention to what he read in the press as to the stated future intentions of a competitor. Mr Bell had said:
“…I will never take this as something that I would make a business decision on.”
[27]In addition to these submissions from Mr Roth, Mr Saini on behalf of the Claimants referred me to the decision of the ECJ in Ahlstrom Osakeyhtio v Commission (The Wood Pulp case) [1993] ECR 1-1307. In that case, the Court had to consider an allegation of a concerted practice which, allegedly, involved the making of public price announcements unnaturally early. The Commission had held that the practice in question amounted to signalling to competitors contrary to Article 81(1). The Court did not agree. It said at paragraph 64:
“In this case, the communications arise from the price announcements made to users. They constitute in themselves market behaviour which does not lessen each undertaking’s uncertainty as to the future attitude of its competitors. At the time when each undertaking engages in such behaviour, it cannot be sure of the future conduct of the others.”
[28]I therefore proceed on the basis that the Defendants do not seek to advance their case that there was collusion between bookmakers by reason of the fact that individual bookmakers made statements of a public nature, including statements in the press. The Defendants accept that they must satisfy the Court that there is other behaviour which amounts to an agreement or a concerted practice within the meaning of Article 81(1).[29]Indeed, far from the Defendants attempting (which they do not) to advance their case by reliance on public statements, the Claimants, defending the claim, seek to make considerable use of the public statements by bookmakers. Mr Saini says that these public statements were made from quite an early point in the relevant history. He submitted that the public statements are not acts which can be relied upon to establish unlawful collusion. Further, he submitted, based on some of the language used in the Suiker decision, language which has been regularly repeated in other cases, that a bookmaker is entitled to have regard to the public statements of a competitor and to adapt itself intelligently to the existing and anticipated conduct of that competitor, without being liable for unlawful collusion. He then submits that by reason of these considerations, it will be extremely difficult for the Defendants to prove, and for the Court to find, that any particular conduct by a competitor has been influenced by or is part of unlawful private collusive behaviour.[30]In my judgment, the correct legal treatment of the discussions which occurred for the purposes of the industry bodies and/or BAGS and/or SISH, and the correct legal treatment of public statements made by the bookmakers, mean that I must be careful when looking at the evidence relied upon by the Defendants, fragmentary or otherwise, to make sure that I only take into account, for the purpose of assessing whether there is a case of unlawful collusion, statements or conduct which are not legitimate in the ways described above.[31]With this in mind, the task, however, remains as it always was. The task is to assess the evidence relied upon by the Defendants and to make appropriate findings of fact and consider whether those findings establish or do not establish the existence of an agreement or concerted practice contrary to Article 81(1).

The opportunity for collusion

[32]The Defendants made further general submissions which, they said, formed the background to any assessment of individual fragments of evidence, for the purpose of assessing whether those fragments pointed sufficiently to the existence of collusion.[33]The Defendants pointed to the ample opportunities which Coral, Ladbrokes, William Hill and BetFred had to discuss the attitude of their individual companies to Turf TV. The Defendants’ submissions catalogued the way in which these opportunities arose and their frequency. They also pointed out the absence of any minutes in the case of many of these meetings. I have already referred to this question of the availability of minutes. I accept the Defendants’ submission that there was ample opportunity for the four bookmaker companies, who are relevant for this purpose, to discuss their attitude to Turf TV. Indeed, the Claimants did not attempt to argue otherwise.

Motive

[34]The Defendants next submitted that, coupled with the opportunity to collude, the four companies had the motive to collude. The motive was that the four companies were hostile to Turf TV, wished Turf TV to fail and did not wish to take steps to assist Turf TV. Signing up to take Turf TV was therefore something which the companies did not want to do. Withdrawing sponsorship from racecourses which had licensed their LBO rights to AMRAC was consistent with a desire to put pressure on those racecourses and in turn to put pressure on AMRAC. Again, there was very little dispute on this part of the case. I find that the four companies were hostile to the emergence or possible emergence of Turf TV and that they wished that it would fail. They did not want to sign up to Turf TV, until they felt that they had no other choice. They did not want to do anything to help Turf TV and they did wish to produce circumstances which would put financial pressure on Turf TV directly or indirectly. Similarly, there is no doubt that they withdrew sponsorship from certain racecourses and part of their motive in doing so was to withdraw financial support from those racecourses.[35]The Defendants’ next point is that the four relevant companies would have wanted to coordinate their behaviour in order to prevent one of them, or at any rate one of Corals, Ladbrokes and William Hill, gaining an advantage over the others. This arose in the following way. AMRAC badly wanted one of the three companies, Coral, Ladbrokes and William Hill to sign up for Turf TV in order to secure AMRAC’s position. To advance that objective, AMRAC was prepared to offer a substantial discount in the price, called an early adopter discount, to the first of these companies to sign up for Turf TV. This early adopter discount, taken by itself, was a substantial incentive to each of the three companies to come forward as the first company to sign up for Turf TV. In the absence of coordination of their behaviour, each of the three would fear that one of the other companies would get the early adopter discount, which would then not be available to the other two. The loss of the early adopter discount was a significant matter because as soon as one of the three signed up, the other competitive forces between the three of them would mean that the other two would have to follow. Accordingly, the consequence of one of the three waiting to see if AMRAC would succeed or fail was that the company that waited would simply lose the early adopter discount and when another company became the first to sign up the company that waited would then immediately have to follow suit. Further, the three companies could not wait indefinitely to see if AMRAC succeeded or failed. By the start of the flat racing season in March or April 2008, each of the three companies would be constrained to sign up for Turf TV. Accordingly, the Defendants argue, it was imperative in order to put financial pressure on AMRAC and to precipitate its collapse that the three companies coordinated their behaviour, so that none of them took the early adopter discount in the year 2007 and any decision to sign up to AMRAC was left as late as possible prior to March or April 2008. As before, the essential facts put forward by the Defendants in this part of their analysis are not in dispute. The early adopter discount was meant to be an inducement to one of the three companies to come forward ahead of the others and until 21st December 2007, each of the three resisted the inducement provided by the early adopter discount.

The Defendants’ case as to the special position of Coral

[36]The next general matter addressed by the Defendants was to offer an explanation for why, in the event, the coordination (which the Defendants say had previously existed) later came to an end. As referred to earlier, on 21st December 2007 Coral signed up with Turf TV and as had been foreseen, this was the catalyst to Ladbrokes (on 1st January 2008) and William Hill (on 11th January 2008) signing up in turn. The Defendants say that this does not prove an absence of coordination because these facts can be explained consistently with earlier coordination. The Defendants say that Coral’s decision to coordinate its behaviour with the other companies was the result of the attitude of Mr Wilf Walsh, the Managing Director of Coral, being replaced at the beginning of September by Mr Nick Rust. The Defendants say that Mr Rust withdrew from the coordination that had earlier existed and, in due course, signed up with Turf TV on 21st December 2007. On this point, it is correct that Mr Walsh was hostile to Turf TV and Mr Rust plainly looked at the matter afresh and in his own way, on taking control of Coral, and was prepared to sign up with Turf TV, and possibly benefited from an early adopter discount.

Specific matters

[37]The Defendants relied in particular on a large number of occasions when, the Defendants alleged, the bookmaker companies did something or said something which amounted to a “slip-up” on their part whereby they revealed the existence of collusion between them as to a refusal to take Turf TV. The Defendants say that there were just too many slip-ups or other indications of the existence of collusion to be explained away.[38]The Defendants discussed in detail each of the instances on which they relied. The Claimants had also prepared a detailed analysis of the evidence and the Claimants’ analysis also referred to the various instances on which the Defendants wished to rely. I will therefore consider each of the instances relied on by the Defendants. In relation to each instance, the written material urged upon me by each side is detailed and it would be quite inappropriate for me to identify and then rehearse and then weigh individually each point that either side wishes to make on each instance. I will therefore deal with each instance and record my assessment of the Defendants’ assertion that the instance relied on was a slip-up or otherwise an indication of collusion. There is, of course, a possible trap in considering the instances separately in that I might fail to give proper weight to the impact of these matters if considered collectively as well as separately. I will therefore stand back and ask whether the overall picture created by the instances relied upon by the Defendants do satisfy me, to the requisite standard of proof, of the case of collusion advanced by the Defendants.[39]The Defendants rely upon a meeting which the partners in the proposed new joint venture had with Mr Walsh of Coral on the 7th September 2006. In their presentation, the Defendants link the evidence of the meeting on 7th September 2006 with a further meeting with Mr Walsh on 8th November 2006. Evidence of both meetings was given by Mr Bazalgette and Mr Morcombe. Neither witness was cross-examined about what was said at these meetings. Mr Walsh was not called by either side to give evidence. Mr Walsh was the then Managing Director of Coral. Coral was initially a Claimant in these proceedings and a Defendant to the Counterclaim but the claims by and against Coral have been settled. Each side points to the fact that the other side did not call Mr Walsh. In the circumstances, I do not attach any real weight to the fact that Mr Walsh was not called. The Defendants say that the reference to Coral not wishing to “break ranks” shows that there was collusion between Coral and other bookmakers already in place by the 7th September 2006. One difficulty with this suggestion is that 7th September 2006 was quite early in the development of the matters which led to this litigation. Although I have evidence that the possible emergence of the body that later became AMRAC was identified prior to 7th September 2006, knowledge of such a possibility was at a very early stage. Further, although the Defendants submit to me that Mr Walsh’s statement on 7th September 2006 is evidence that there had already been collusion between Coral and other bookmakers, it was not put to any witness for Ladbrokes, William Hill or BetFred that collusion had occurred as early as 7th September 2006. In these circumstances, I can attach no real weight to the use of the phrase “break ranks” by Mr Walsh on 7th September 2006 nor, indeed, 8th November 2006.[40]The Defendants next draw attention to certain e-mails sent on the 11th and 12th September 2006, a meeting of the Council of the ABB on the 11th September 2006 and a pre-meeting on 19th September 2006 in advance of the Media Rights Committee of BAGS meeting representatives of Northern Racing Limited. These events were the subject of extensive cross-examination of the Claimants’ witnesses. The significant matter which had occurred before the 11th September 2006 was the regulatory announcement by Alphameric which referred to negotiations with a view to the proposed joint venture acquiring the exclusive right to distribute horseracing pictures and data to LBOs. It is quite clear that this was a most significant announcement and was the subject of discussion by the Media Rights Committee of BAGS. The Defendants specifically draw attention to a phrase in an e-mail sent by Mr Kelly on 11th September 2006 at 17:02 to some, but not all, of the members of the Media Rights Committee. Mr Kelly used the phrase “…we need to take time to consider our wider strategy”. The cross-examination explored what was meant by “we” and “our wider strategy”. The Defendants also drew attention to the fact that on 12th September 2006, Mr Spearing of William Hill replied to Mr Kelly stating that:
“we must have a Coral person”
. There was cross-examination as to why it was necessary to have “a Coral person”. The Media Rights Committee or TV Contract Committee of BAGS met at 1pm on 19th September 2006. There is no minute or record of the discussion at that meeting. This was a pre-meeting immediately before the members of the Media Rights Committee of BAGS met representatives of Northern Racing and a note of the meeting with Northern Racing refers to the terms negotiated with Northern Racing, including the fact that Northern Racing would grant its rights to BAGS on an exclusive basis.[41]During the cross-examination of the various Claimants’ witnesses on these events from the period 11th September 2006 to 19th September 2006, the Defendants suggested that the strategy, in response to the significant announcement of 8th September 2006, must have involved the large bookmakers committing themselves, one to the other, that each of them would not subscribe to Turf TV. In other words, what was suggested in cross-examination was that there was collusion between individual companies as to the future behaviour of those individual companies. Those suggestions were not accepted by any of the Claimants’ witnesses. The language of the e-mails relied upon by the Defendants and the fact of a pre-meeting at 1 p.m. on the 19th September 2006 do not, in my judgment, of themselves establish that there was any collusion which involved agreements as to the future behaviour of the individual companies. The language of the e-mails and the fact of the pre-meeting can be explained without difficulty by reference to the activities of BAGS and its Media Rights Committee. Indeed, in his closing submissions, Mr Roth did not go so far as to contend that anything had been said in cross-examination of the Claimants’ witnesses which would enable me to make a finding that collusion as to the behaviour of individual companies occurred in this period. His submission was limited to a contention that what was happening was “shrouded in mystery”. In my judgment, based upon the detailed evidence given by the Claimants’ witnesses, these events are not shrouded in mystery. I will only need to re-visit these events to see if they provided any support of any kind for the Defendants’ case if, on an overall assessment of the witnesses, I concluded that the witnesses were not being frank in their evidence as to these events and that the e-mail communications and the pre-meeting were so suspicious that, taken together with a host of other fragments of evidence, I should conclude that collusion did indeed occur during this period.[42]The Defendants next referred to a minute of a meeting of the Board of Directors of SISH on 21st September 2006. Mr Ross of Ladbrokes and Mr Harding of William Hill were present and Mr Spearing of William Hill was in attendance. Mr Holdgate of SIS reported the fact that Northern Racing had approached SIS with a view to negotiating the grant to SIS of exclusive LBO rights. It will be remembered that on the 19th of September 2006, BAGS had negotiated on that subject with Northern Racing. At the SISH Board Meeting, Mr Ross and Mr Spearing expressed the view that negotiations with Northern Racing should be through BAGS and not through SIS. That was not an appropriate stance for Mr Ross and Mr Spearing to take if they were acting in the best interests of SISH as they appeared to be preferring the interests of BAGS to SISH. The Defendants say that this shows that Mr Ross and Mr Spearing were acting collusively and, further, did not always recognise the particular capacity in which they were acting. It was suggested that if Mr Ross and Mr Spearing were not able to distinguish between their positions as representatives of SISH and representatives of BAGS they would also have been unable to distinguish their position as members of BAGS or the Bookmakers Committee as distinct from their roles as executives in their individual companies. It was also submitted that this indicator as to collusion between the two companies was supported by paragraph 37 of Mr Ross’s witness statement where he referred to “we” in a way which should, or might, be read as referring to Ladbrokes and William Hill. In my judgment, what Mr Ross and Mr Spearing said at the SISH Board meeting on 21st September 2006 does not come close to establishing that Ladbrokes and William Hill colluded in the sense that they agreed with each other that they would boycott Turf TV. Similarly, I do not regard the way in which matters are described by Mr Ross in his witness statement as providing any real support for such a suggestion. The highest that the Defendant can put the matter is to show that, certainly on one occasion, Mr Ross and Mr Spearing attended a meeting of the SISH Board but appeared to put forward the views of BAGS. As before, I will have to consider whether this fragment of evidence which proves next to nothing on its own should nonetheless take its place with other fragments to make up the kind of picture contended for by the Defendants.[43]The Defendants also rely on the fact that in the period following the Alphameric regulatory announcement on 8th September 2006, there are no records in the minutes of BAGS or the ABB which show any substantive or detailed discussion of that significant announcement. Whilst the Defendants might wish to rely upon the absence of any record as a means of casting suspicion on the behaviour of the bookmaker companies, I am not able to make a positive finding based on this matter alone that there was collusion between the bookmaker companies as to their individual behaviour.[44]The Defendants next relied on an e-mail exchange on 7th December 2006 and a further e-mail on 4th January 2007. On 7th December 2006, Mr Kelly of BAGS sent an e-mail to Mr Ross of Ladbrokes, Mr Spearing of William Hill and Mr Roseff of H Backhouse (Baker Street) Limited, an independent bookmaker, and Mr Walsh of Coral. Mr Kelly wished to know whether any of the recipients of his e-mail wished to join Mr Kelly at a meeting with Mr Morcombe of Alphameric. The only recorded reply came from Mr Walsh who suggested that Mr Kelly attend alone at the meeting with Mr Morcombe. Mr Walsh used the phrase “we’ve written him and his project off”. It is obviously open to interpretation whether the reference to “we” is a reference to BAGS or to the various bookmaker companies. If one had to choose between these meanings, one might reach the conclusion that “we” referred to the members of BAGS because the e-mail came from Mr Kelly on behalf of BAGS (albeit using the ABB e-mail address). Further, Mr Morcombe appears to have wanted a meeting with BAGS, not with individual bookmaker companies. But even if Mr Walsh was referring to bookmaker companies in addition to his own company, Coral, one cannot spell out of his words an admission that bookmaker companies had agreed with each other that they would boycott Turf TV.[45]Mr Walsh sent the second e-mail to which the Defendants referred in this part of their submissions. On 4th January 2007, Mr Walsh sent his e-mail to Mr Kelly, to Mr Ross of Ladbrokes and Mr Spearing of William Hill. His e-mail told the recipients that Coral was signing with SIS that day and as Mr Walsh was going to be unavailable for a short period he said to the others “you guys go on without me”. The Defendants emphasised this e-mail in their closing submissions. It was said that there was no obvious innocent explanation for Mr Walsh of Coral communicating with his competitors as to Coral’s commercial behaviour. Further the reference to the others going on without Mr Walsh, it was submitted, suggests that there was a pre-ordained strategy well known to the recipients of the e-mail. The rival submission is that Coral’s statement that it was signing up to SIS was neither confidential nor newsworthy as Mr Spearing and Mr Ross would have been given this information directly by SISH. Further, the reference to the others going on without Mr Walsh in some way or other does not help one to determine what expected conduct was being referred to. In my judgment, the connection which existed between the companies and Mr Kelly, acting for and on behalf of BAGS, considerably blunts the suggestion that the only possible reading of the e-mail of 4th January 2007 was that there was collusion between the individual bookmaker companies as to their own corporate behaviour. Nonetheless, the e-mail deserves to be looked at again together with all the material relied upon by the Defendants to assess whether the Defendants have established to the requisite standard that collusion of the kind complained of actually took place. As before, both sides submitted that the other could have called, and did not call, Mr Walsh. As before, I find that since neither party called Mr Walsh, I ought not to give significant weight to the fact that one party, or the other, did not call Mr Walsh.[46]Before turning to other matters relied upon by the Defendants, I ought to refer to two newspaper articles in the Racing Post, the first on the 5th January 2007 and the second on the 1st February 2007. On 5th January 2007, the Racing Post reported Mr Walsh of Coral as expressing the view that Coral did not want two services, that is, Turf TV in addition to SIS FACTS. On 1st February 2007, the Racing Post reported Mr Done of BetFred as stating that BetFred could live without Turf TV.[47]The Defendants next rely upon the evidence given by Mr Ross and Mr Bell about a meeting which Mr Ross had with Mr Morcombe and Mr Siers of Alphameric at the Paddington Hilton on 9th February 2007. This meeting took place in circumstances which were designed to keep confidential the fact of the meeting and the discussion at the meeting. However, it is not suggested by the Defendants that the desire for confidentiality was attributable to any previous collusion between Ladbrokes and the other bookmaker companies. Indeed, the fact that the meeting took place at all could be relied upon by the Claimants as showing an absence of collusion involving Ladbrokes as at 9th February 2007. Mr Ross gave evidence about the negotiations at that meeting and he also gave evidence that he reported to Mr Bell of Ladbrokes on the negotiations he had with Alphameric. The Defendants say that Mr Ross’s account of the negotiations and Mr Bell’s account, or understanding, of the negotiations are not wholly consistent. Mr Ross said that Ladbrokes were concerned about price whereas Mr Bell said that Ladbrokes were concerned about price and delivery. Mr Ross gave evidence of the figure on offer from Alphameric whereas Mr Bell described matters differently. I am not particularly suspicious or critical of these two witnesses in giving evidence which is not wholly consistent on these matters. However, I will take the differences in their evidence as a part of the overall picture when I assess the reliability of the evidence from the Claimants’ witnesses more generally.[48]The annual meeting of the ABB took place at the Waldorf Hotel London on 22nd February 2007. The Defendants plead the following in relation to that occasion:
“At a meeting held on 22nd February 2007 on the occasion of the annual meeting of the ABB (but aside from the main meeting), attended by among others representatives of Coral, Ladbrokes and William Hill, the launch by AMRAC of Turf TV was discussed including options available to attack this new venture. At least some of the representatives of Coral, Ladbrokes and William Hill taking part in this discussion indicated that withdrawing from or curtailing sponsorship of fixtures at participating racecourses was an appropriate strategy and one which they would adopt and the other representatives did not dissent or disassociate themselves from this suggestion.”
[49]This allegation was originally made against BetFred as well as the other three named companies but the allegation against BetFred was withdrawn by an amendment of this paragraph in the pleading.[50]Mr Kelly, as the Chief Executive of the ABB, made a speech at the meeting. The text of his speech is available. Mr Kelly dealt with a number of topics in his speech. Mr Kelly expressed himself in forceful terms on some of these matters. He referred to the events leading to the retention of the levy system and the fact that the sport of racing had devised “a commercial mechanism” to increase the money flowing out of the betting industry towards racing. He then referred to the role of BAGS and the possibility that, in the future, bookmakers would have available to them pictures of horseracing both from SIS and from Alphameric. Mr Kelly was careful in his choice of language not to advise bookmakers to boycott Alphameric/AMRAC. However it was nonetheless clear from his remarks that he, as the Chief Executive of the ABB, thought that the arrival of AMRAC was a very bad development so far as bookmakers were concerned.[51]The Defendants do not say that Mr Kelly’s remarks involved BAGS or the ABB colluding with individual bookmaker companies in a way that exposes BAGS or the ABB to any liability. The claim as to collusion is made against three, or four, bookmaker companies alone.[52]As appears from the Defendants’ pleading in relation to the meeting on 22nd February 2007, the Defendants do not allege that any agreement was made on this occasion to boycott Turf TV. Instead, the Defendants allege an agreement to withdraw sponsorship from certain racecourses. Nonetheless, it is important to consider the evidence as to this meeting at this point in the chronology. If I found that certain bookmakers made an agreement on this occasion to withdraw sponsorship from certain racecourses, that might have a bearing on my findings as to whether there was collusion between certain bookmakers to boycott Turf TV.[53]Mr Spearing of William Hill was at the ABB meeting on 22nd February 2007, Mr Harding of William Hill was not. Mr Spearing was not cross-examined about the alleged agreement in relation to sponsorship. Mr Harding stated in his evidence that he was not at the meeting and he did not direct any employee of William Hill to attend such a meeting with the intention of making any such agreement. As to Ladbrokes, Mr Bell and Mr Ross were not present at the meeting. A Mr O’Kane of Ladbrokes did attend. The Claimants served a witness statement from Mr O’Kane but did not call him to give evidence. It does appear that Mr O’Kane was a Director of Ladbrokes and was dealing with the subject of sponsorship. No witness from Coral gave evidence. The allegation of an agreement as to sponsorship, made at a side meeting on 22nd February 2007, was not put to Mr Kelly or Mr Roseff.[54]Neither Mr Done nor Mr Haddock of BetFred were at the meeting of 22nd February 2007.[55]The Defendants served a witness statement from a Mr Gretton of Chester racecourse. That witness statement referred to the meeting on 22nd February 2007. However, Mr Gretton was not called to give evidence and the contents of his witness statement are therefore not in evidence, even as hearsay evidence.[56]The only specific evidence which the Defendants called as to the alleged agreement as to sponsorship on 22nd February 2007 was the evidence of Mr Gibson of Sandown Park racecourse. Mr Gibson dealt with this meeting very briefly by saying in his witness statement:
“I had also been made aware, in conversations with Fred Done, that bookmakers had decided upon a course of sponsorship withdrawal at the ABB Annual General Meeting that took place in February of this year.”
Mr Gibson was cross-examined in detail about this evidence. Mr Gibson was not able to say when Mr Done had said what was alleged nor could Mr Gibson remember the words Mr Done had used. Mr Done, it will be remembered, was not at the ABB meeting on 22nd February 2007 and he specifically said when cross-examined that he had not subsequently asked other bookmakers what had happened at that meeting. Mr Done said that he did not have a conversation with Mr Gibson of the kind alleged.[57]The evidence given by the Defendants as to the alleged side meeting on 22nd February 2007 and the alleged discussion as to sponsorship is quite insufficient to support a finding of fact in accordance with the pleaded allegation. I accept Mr Done’s evidence that he did not have a conversation of the kind alleged with Mr Gibson. Mr Gibson’s evidence in chief on this subject was always imprecise and having heard him cross-examined, I think that it is much more likely than not that Mr Gibson formed certain views about what was happening when he saw parallel behaviour by certain bookmakers withdrawing sponsorship from certain racecourses. Mr Gibson himself said, when cross-examined, there was “a lot of noise” and “a lot of chat” in the market place and it is entirely possible that Mr Gibson had formed the view from noise or chat of that kind that there must have been some discussion by bookmakers on the subject of sponsorship and the possible time for that to have occurred was at the ABB meeting in February 2007. Notwithstanding this, for the reasons I have given, I make no such finding.[58]The Defendants then draw attention to an exchange of e-mails between Mr Harding and Mr Hood, both of William Hill, on 26th February 2007. Mr Hood was dealing with sponsorship of races on behalf of William Hill. The Claimants served a witness statement from Mr Hood but did not call him to give evidence.[59]On 26th February 2007, Mr Hood e-mailed Mr Harding to tell Mr Harding that William Hill had declined a request to sponsor a race at Newbury. Mr Hood refers to “to singing off the same hymn sheet” and I interpret that to be a reference to Mr Harding and Mr Hood taking the same approach and not to conduct involving another bookmaker company. Mr Harding replied by e- mail on the same day telling Mr Hood that he had no problem with Mr Hood’s stance and that Mr Hood might take an even a harder line as regards AMRAC. Mr Harding added a lengthy postscript to his e-mail setting out Mr Harding’s view as to why AMRAC was not only bad for bookmakers but also bad for racing.[60]Mr Hood replied to Mr Harding’s e- mail stating:
“Difficult one to approach, but you might want to give Fred Done or Wilf Walsh a gentle reminder that perhaps we should all be on the same sheet re sponsorship if you get a chance”
. Fred Done is the majority shareholder in, and a director of, BetFred and Wilf Walsh was the managing director of Coral. The e-mail does not refer to any representative of Ladbrokes.[61]The final e-mail on the 26th February 2007, in this exchange between Mr Harding and Mr Hood, was the e-mail from Mr Harding where he said:
“Will do. Not sure they see things in quite such a joined up way tho’.”
[62]The Defendants particularly rely on Mr Hood’s e-mail which refers to Mr Done and Mr Walsh. That e-mail uses the word “reminder” but also refers, using the future sense, to certain persons adopting a similar approach in relation to sponsorship. On a fair reading of this e-mail, it suggests to me that Mr Hood was not aware of any prior agreement having been made by William Hill with BetFred or Coral about sponsorship and I would not be inclined to construe the word “reminder” as amounting to a statement that there had been some previous agreement. Accordingly, Mr Hood appears to be suggesting that Mr Harding of William Hill should in the future suggest to BetFred and Coral that they should adopt the same approach in relation to sponsorship. Mr Harding’s response to Mr Hood, when Mr Harding refers to Fred Done and Wilf Walsh not seeing things “in a joined up way” also strongly suggests that there was no prior agreement between William Hill, BetFred and Coral as to sponsorship.[63]In relation to the e-mails of 26th February 2007, the question arises whether Mr Harding did contact Mr Done or Mr Walsh to suggest co-ordinated behaviour in relation to sponsorship. Mr Harding said when cross-examined that he did not do this. Indeed, he accepted when cross-examined that his e-mail using the words “will do” was an inappropriate e-mail for him to have sent and, therefore, that he did not act as his e-mail suggested he was going to do. The Defendants do not allege that BetFred was a party to any collusion in relation to sponsorship and Mr Done was not cross-examined as to whether Mr Harding had approached him following 26th February 2007. Mr Walsh of Coral did not give evidence.[64]The Defendants emphasised this exchange of e-mails. They described them as “very revealing” and as pointing to a culture at the very top of William Hill in favour of collusion with other bookmakers. As I have indicated, in my judgment, the e-mails point away from, rather than point towards, the existence of any prior collusion in relation to sponsorship. No one suggests that there was any later collusion between William Hill and BetFred. The e-mail certainly provides grounds for suspicion that there was collusion between William Hill and Coral in relation to sponsorship. However, if I were to rely upon these e-mails to support a finding that William Hill did collude with Coral in relation to sponsorship, I would have to reject Mr Harding’s evidence when he said that he did not contact Coral following this exchange of e-mails. I will therefore keep this e-mail in mind when considering whether to accept the evidence of the bookmaker witnesses that they did not coordinate their behaviour, either in relation to boycotting Turf TV or in relation to withdrawal of sponsorship.[65]On 6th March 2007, the Racing Post reported the views of Mr Harding of William Hill. Mr Harding referred to the possibility of a reduction in levy income for racecourses as a result of the arrival of AMRAC. Mr Harding is reported as saying that the arrival of AMRAC did not bring any benefit for horseracing or for punters in betting shops. He referred to the ability of William Hill to cope, notwithstanding the absence of pictures from five courses with effect from April 2007 and he referred to the fact that the absence of pictures from the AMRAC courses would not affect bookmakers through to the end of March 2008. At that point, he indicated, the levy might be reduced.[66]The Defendants next relied on a note prepared by Mr Brown of William Hill. It was said that the note was prepared on 16th March 2007. The note referred to a future meeting of certain representatives of William Hill on 29th March 2007. The note stated that Mr Harding of William Hill was keen to have a robust response ready to “those operators who may “break ranks” and show RUK pictures in their LBOs.”[67]The Claimants served a witness statement from Mr Brown but he was not called to give evidence. Mr Harding was cross-examined about this note. He explained the note as correctly describing the competitive response intended by William Hill to another bookmaker who showed Turf TV. As such, the note records an intention to compete with other bookmakers rather than an intention to coordinate behaviour between bookmakers. The Defendants suggest that the use of the phrase “break ranks” shows that there was indeed a prior arrangement between bookmakers not to show Turf TV. In my judgment, the phrase “break ranks” does not necessarily carry that connotation. The phrase could just as easily be regarded as appropriate as referring to the circumstance where one bookmaker signs up with Turf TV when others do not. I do not regard this note as probative, or even suggestive, of some prior coordination of behaviour on the part of bookmakers.[68]On 25th March 2007, an article in the Racing Post discussed the intentions of both Coral and William Hill as regards future sponsorship by them of courses which had granted their LBO rights to AMRAC. Both companies were reported as reviewing their position with the possibility that they might withdraw such sponsorship. This was therefore a public statement as to the attitude of Coral and the separate attitude of William Hill.[69]The Defendants next relied upon a meeting of the Rails Bookmakers Association Limited on the 25th March 2007. Mr Spearing of William Hill addressed the meeting. A minute of the meeting recorded that he gave an overview of the challenges faced by “all sections of our industry”. He is recorded as saying that these challenges would be most effectively addressed “with a uniformity of views”. In this general way, Mr Spearing’s remarks indicated that it would be a good idea if all members of an industry body thought the same. That attitude does not of itself say anything specific about the allegation raised by the Defendants in this case.[70]On 26th March 2007, the category A members of the ABB held a dinner in a private room at a restaurant in London. Mr Bell was cross-examined about what was discussed at the dinner and his evidence did not support any suggestion that this dinner was used as an occasion to co-ordinate behaviour between bookmakers. Indeed, the Defendants did not refer to this dinner in their written closing submissions.[71]The Defendants next rely on a meeting on 29th March 2007 between the Turf TV Board and the BAGS Media Rights Committee. At that meeting, Mr Ross made the comment:
“we represent all bookmakers, as we are your only customer”
. Mr Ross explained that his comment was meant to convey to Turf TV that bookmakers found odd the way they were treated by Turf TV. In my judgment, this comment does not provide evidence of any co-ordination of behaviour by bookmakers in relation to the individual bookmaker companies.[72]The Defendants next relied on two e-mails of 18th April 2007 which referred to the possibility of Paddy Power acquiring shares in SISH. Mr Ross of Ladbrokes gave evidence that he had had a meeting with Patrick Kennedy of Paddy Power in Dublin on 13th April 2007. At that meeting, Mr Kennedy took Mr Ross by surprise by asking if Paddy Power could invest in SISH. Mr Ross told Mr Kennedy that he would speak to the Chairman of SISH.[73]On or before 18th April 2007, Mr Ross did speak to the chairman of SISH and passed on Mr Kennedy’s request. Mr Ross said to the Chairman that if all the shareholders did not want to reduce their shareholding in SISH (in order to make shares available to be transferred to Paddy Power) then perhaps Ladbrokes and perhaps William Hill would consider it.[74]On 18th April 2007, the Chairman of SISH sent an e-mail which was copied to Mr Ross referring to Mr Ross having spoken to Paddy Power about the possibility of Paddy Power buying shares “from Ladbroke and WHO”. On the same day, Mr Ross forwarded this e-mail to Mr Spearing of Ladbrokes for his information. Nothing in fact came of this suggestion. The Defendants draw attention to the fact that on the 19th April 2007, Paddy Power signed a long-term agreement with AMRAC and this was the subject of a public announcement on 20th April 2007. It was put to Mr Ross, to Mr Spearing and Mr Harding that it was somewhat odd that Mr Ross of Ladbrokes should discuss the possibility of William Hill selling its shares in SISH to Paddy Power. I agree that it was a somewhat odd suggestion for Mr Ross of Ladbrokes to make. Nonetheless, all the representatives of Ladbrokes and William Hill gave evidence that there was no prior agreement between Ladbrokes and William Hill to coordinate their behaviour in this respect so as to commit Paddy Power to SIS FACTS and draw them away from signing up with AMRAC. Mr Ross did give an explanation as to why he felt he knew enough about the attitude of William Hill, as a shareholder in SISH, to mention the possibility that not only Ladbrokes, but also William Hill, might consider selling shares to Paddy Power.[75]On its own, these events concerning Paddy Power are only very slight evidence of any kind of co-ordinated behaviour between William Hill and Ladbrokes. However, I will take these into account when considering whether I should accept the evidence of the various bookmaker witnesses.[76]On 12th April 2007, Mr O’Brien of Ladbrokes was quoted in the Financial Times expressing the view that Ladbrokes would not seriously consider signing up to Turf TV, on the basis that it involved paying a considerably increased sum for a worse service for punters. By this date, all four of Coral, Ladbrokes, William Hill and BetFred had expressed very negative views about Turf TV in the press.[77]The Defendants next rely upon a meeting between Mr Morcombe of Alphameric/AMRAC and Mr Ross of Ladbrokes at an hotel on 24th April 2007. This was a lengthy meeting with detailed discussions as to price and delivery. If Ladbrokes had earlier co-ordinated its behaviour with William Hill and Coral to boycott Turf TV, then Ladbrokes were at this point actively taking steps to act inconsistently with such co-ordination. The alternative is to regard the fact that Ladbrokes were entering into detailed negotiations on price as strongly indicative that there was no co-ordination of behaviour between these three bookmaker companies. The Defendants rely upon this meeting for a statement, or an alleged statement, said to have been made by Mr Ross. Evidence of the statement appears in the witness statement of Mr Morcombe. Mr Ross is alleged to have said:
“if Turf TV agree to supply LBOs at a price of £2,500 per LBO, he would have the four major bookmakers all signed up to Turf TV in a matter of hours”
. The only part of this statement which Mr Morcombe has put in quotations is the phrase:
“in a matter of hours”
. The rest of the statement must therefore be what Mr Morcombe says he understood Mr Ross to be saying. Mr Ross was cross-examined in detail about this evidence. Mr Ross did not accept that he had made the alleged statement. Mr Ross did, however, refer to the possibility that both sides to the conversation appreciated, and may have mentioned, the fact that if Ladbrokes signed up to Turf TV there would be a domino effect with other major bookmakers following suit rapidly. After all, that is what happened in December 2007 and January 2008. The cross-examination explored what might have been meant by the phrase “in a matter of hours” but little attention was given to the idea that Mr Ross would have the four bookmakers signed up. It is fanciful to suggest that Mr Ross of Ladbrokes could require the other three bookmakers contemplated by this reference to sign up to Turf TV. No one suggests that Mr Ross of Ladbrokes had made any such agreement with the other bookmakers. The suggestion being put by the Defendants is that the bookmakers were ready to sign up on the right terms but they had each colluded in an arrangement that no one of them would sign up at that stage. The Defendants also seek to rebut the domino theory by pointing out that the imperative to sign up in April 2007 was much less great than the imperative to sign up in December 2007. This combination of points on the part of the Defendant does not seem to me to make much sense. It suggests to me that Mr Morecombe’s evidence as to what Mr Ross said is not particularly reliable. Just as I could not rely on that evidence in support of the possibility that Mr Ross could require the other bookmakers to sign up with Turf TV, I am not minded to rely on that evidence in support of an allegation that the major bookmakers had colluded not to sign up with Turf TV.[78]Before moving to the next matter relied on by the Defendants, I refer to the presentation made by Mr Spearing to the William Hill Board of Directors on 26th April 2007. The notes of his presentation show that Mr Spearing told the Board that it was a matter for the individual decision of each bookmaker company whether to sign up to Turf TV. Similarly, Mr Spearing pointed out that the question of sponsorship was for individual bookmakers to decide. This internal document of William Hill suggests that William Hill was not colluding with other bookmakers in relation to a boycott of Turf TV, or in relation to sponsorship of racecourses.[79]The next topic which the Defendants referred to in their closing submissions was the appointment of Mr Rust as Managing Director of Coral, replacing Mr Wilf Walsh. Mr Rust appears to have been appointed in early May with a view to taking up his appointment on 1st September 2007 and so that Mr Rust would be on garden leave between May and September 2007.[80]On or about 8th May 2007, Mr Spearing of William Hill appears to have telephoned Mr Harding of William Hill with the news of Mr Rust’s appointment. On 8th May 2007, Mr Harding sent an e-mail to Mr Spearing and Mr Spearing then replied. The e-mails referred to Mr Rust’s appointment. It was pointed out that Mr Harding’s e-mail referred to Coral’s stance in relation to Turf TV. When Mr Harding was cross-examined, he explained that William Hill knew of Coral’s stance in relation to Turf TV because Coral had made clear that stance through comments made in the press. I am not able to read Mr Harding’s reference to Coral’s stance as indicating anything as to whether there was prior co-ordination of behaviour between Coral and William Hill. The exchange of e-mails also makes it clear that William Hill was guessing as to what Coral might do when Mr Rust took up his appointment. It is clear that William Hill did not expect there to be any co-ordination of behaviour between Coral and William Hill. Further, in my judgment, the exchange of e-mails does not indicate whether there had been any prior co-ordination between Coral and William Hill.[81]It is convenient at this point to refer to another communication involving Mr Rust. That communication was between a Mr Julian Graham-Rack of William Hill and Mr Rust. Evidence of that communication came into this litigation because Mr Rust met Mr Bazalgette and Mr Mills of RUK at the Sports Café in The Haymarket London on the 17th September 2007. Mr Bazalgette gave evidence as to what Mr Rust told Mr Bazalgette at that meeting. The Defendants served a witness statement from Mr Mills and that witness statement was received into evidence. The Claimants did not require Mr Mills to attend for cross-examination. The Defendants called Mr Rust to give evidence pursuant to a witness summons. I accept Mr Rust’s evidence as to the conversation he had with Mr Graham-Rack and also as to the conversation he had with Mr Bazalgette and Mr Mills on the 17th September 2007. It is clear from Mr Rust’s evidence that Mr Bazalgette’s and Mr Mills’ understanding of what they were being told on 17th September 2007 is not reliable as to the content of the conversation between Mr Graham-Rack and Mr Rust. It is the content of that conversation which matters for present purposes.[82]Mr Graham-Rack was Group Director of International Business Development at William Hill. He and Mr Rust knew each other quite well. They lived fairly close to each other and they met socially. Mr Graham-Rack telephoned Mr Rust to congratulate him on his appointment as Managing Director of Coral. Mr Graham-Rack made “a light-hearted remark” to the effect that everyone was wondering what Mr Rust would do. This was understood to be a reference to Turf TV. The conversation took place while Mr Rust was on garden leave and he answered the enquiry by saying he would have to wait and see and he would assess the situation when he took up his appointment. The conversation then passed to other social matters. Although Mr Graham-Rack’s remark was light-hearted, Mr Rust believed that there was something more serious behind the remark and William Hill were gently probing to find out Mr Rust’sintentions. Mr Rust described this conversation to Mr Bazalgette on 17th September 2007 because Mr Rust believed that the fact of the conversation demonstrated that bookmakers were keenly in competition so that one was trying to find out something about the other’s behaviour. I accept Mr Harding’s evidence that he did not take any step to bring about this conversation between Mr Graham-Rack and Mr Rust.[83]The Defendants had pleaded that the relevant conversation between a representative of William Hill and Mr Rust was for the purpose of William Hill giving Mr Rust a warning not to “step out of line over Turf TV”. This allegation has not been substantiated by the evidence given on this point. Further, the evidence given by Mr Rust does not provide any support to the Defendants’ case that there was at some earlier time co-ordinated behaviour between Coral and William Hill.[84]On 31st May 2007, the Tote signed up to Turf TV. Mr Morcombe of Alphameric/AMRAC gave evidence that Mr Beaumont of the Tote came to his offices to sign the deal. Mr Beaumont was late and explained that he had just been called by Mr Harding of William Hill who had said to Mr Beaumont that Mr Beaumont should not sign up to Turf TV. Mr Morcombe was not cross-examined on this evidence. Mr Beaumont did not give evidence.[85]It is clear that Mr Harding was in contact with Mr Beaumont in the days before 31st May 2007. Mr Harding was cross-examined on this topic. Mr Harding did not recall any conversation in which he said to Mr Beaumont that Mr Beaumont should not sign up for Turf TV. Mr Harding said that he would not have tried to stop the Tote from signing up. He regarded the Tote as almost completely controlled by racing interests and he expected them to sign up at some point. Mr Harding referred to a lunch with Mr Beaumont which was principally concerned with the impending privatisation of the Tote but the lunch must have also touched on the question of Turf TV. Mr Harding says he got the distinct impression that Mr Beaumont as a bookmaker had the same reservations about Turf TV as anyone else but that the Tote was coming under intense pressure to sign with Turf TV, regardless of what Mr Beaumont thought.[86]It seems likely from this evidence that Mr Harding did speak to Mr Beaumont and did say to Mr Beaumont that William Hill did not welcome the Tote’s decision to sign up to Turf TV.[87]The Defendants also drew attention to the fact that Mr Bell of Ladbrokes telephoned Mr Beaumont a day or so after the Tote had signed up to Turf TV and, further, Mr Bell telephoned Mr Done of BetFred on the 1st June 2007. There is no evidence as to what was said in these conversations.[88]The Defendants also referred to an e-mail sent by a Mr Warwick Bartlett to Mr Kelly. Mr Warwick Bartlett was an independent bookmaker with one betting shop and was a member of the ABB. Mr Bartlett used strenuous language to criticise the Tote’sdecision to sign up with Turf TV. That e-mail shows the strength of Mr Bartlett’s feelings on the subject but does not assist in answering any of the questions raised in this litigation.[89]The Defendants next referred to an e-mail from Mr Hood of William Hill to Mr Brown of William Hill. Mr Hood stated:
“it is vitally important that any message from the Big Four demonstrates that we remain steadfast in our decision. The last thing we need is an armada of independents starting to question our resolve, signing up and swelling their subscriber numbers further.”
The Big Four refers to Coral, Ladbrokes, William Hill and BetFred. Mr Hood is referring to those four companies as being steadfast in their decision. He refers to the resolve of those four companies.[90]Mr Hood was not called to give evidence. The language of his e-mail is consistent with the four companies having co-ordinated their behaviour in relation to a boycott of Turf TV. However, that is not the only explanation for Mr Hood’s language. By this time, the four companies had made public statements indicating their dislike of Turf TV and their views that the arrival of Turf TV was not in the interests of bookmakers. It is not unnatural to read Mr Hood’s e-mail as referring to those public statements as the decision of the four companies and the resolve of the four companies. I will take this e-mail into account when considering the overall picture and whether I accept the evidence from the bookmaker witnesses.[91]The Racing Post of 5th June 2007 reported the reaction of William Hill, Coral and Ladbrokes to the news that the Tote had signed up with Turf TV. David Harding of William Hill was quoted as saying that there was absolutely no change “to our resolution”. He suggested that William Hill would “tough it out”. Mr Walsh of Coral is reported as stating that Coral would only consider signing up with Turf TV if Ladbrokes or William Hill or BetFred did so. Ladbrokes’ position was stated to be unchanged; they stated that they remained willing to talk but not on the current terms.[92]The Defendants next referred to a conversation which Mr Fabricius of Goodwood had with Mr Walsh and Mr Goulden of Coral on 15th June 2007. Mr Fabricius gave evidence in chief as to this conversation. He essentially relied upon an e-mail he had sent late in the evening following the conversation. Mr Fabricius was not cross-examined in relation to this evidence. At the beginning of Mr Fabricius’ cross-examination, Mr Green QC on behalf of the Claimants stated that the Claimants did not necessarily accept Mr Fabricius’ evidence and they would put their full case to other witnesses and be selective in the matters raised with Mr Fabricius in cross-examination. However, Mr Fabricius was the only witness who gave evidence about this conversation on the 15th June 2007 and I ought to proceed on the basis that this evidence was not challenged by the Claimants.[93]I will not set out the detail of Mr Fabricius’ lengthy e-mail of 15th June 2007. He refers in that e-mail to Mr Walsh and Mr Goulden of Coral referring to the future action of William Hill and Ladbrokes. Mr Walsh and Mr Goulden also indicated respects in which they did not agree with the approach being taken by Mr Harding of William Hill. The Defendants, in their closing submissions, said that the only way that Coral would know of the intentions of William Hill and Ladbrokes was if there had been collusive interaction and exchange of information. This ignores the fact there had been exchanges of information through a large number of public statements in the press. Accordingly, I do not agree with the submission that Coral’s awareness of the content of these public statements indicates one way or the other whether there was agreement to co-ordinate the behaviour of those three companies.[94]The Defendants next referred to an exchange of e-mails on 10th and 11th October 2007. These are William Hill e-mails commenting on the behaviour of Coral in a particular respect. The Defendants suggest that these e-mails are significant and they show that there must have been some agreement between Coral, Ladbrokes and William Hill as to their conduct in the relevant respect. I do not believe that the e-mails bear anything like the weight which the Defendants seek to place upon them. All that I can see one can derive from the e-mails is that Mr Spearing did not wish to miss a trick and therefore wished to do the same as William Hill’s competitors were doing so as not to be at a disadvantage. It is correct that a Mr Henderson of William Hill referred to Mr Spearing having a “counterpart at Coral” but I cannot regard that as having any probative force in relation to the issues in this litigation.[95]The Defendants next referred to three e-mails from Mr Kelly on 16th October 2007. The first two of those e-mails were addressed to Mr Spearing of William Hill, Mr Ross of Ladbrokes and Mr Roseff, an independent bookmaker. The third e-mail had the same addressees but was copied to, amongst others, Mr Lang of Coral. The e-mail suggests a meeting of the BAGS media team to discuss strategy. Parts of the e-mails are redacted and it was put by the Defendants to Mr Spearing in cross-examination that the meeting was to discuss what became the current litigation. The Defendants’ point on the first two of the e-mails is that they were not sent to Coral. The Defendants seek to build on that fact by suggesting that the obvious inference to be drawn was that Coral were to be excluded from a discussion as to what should be done because of the uncertainty caused by the appointment of Mr Rust as to Coral’s attitude. This seems a wholly fanciful suggestion, particularly in view of the fact that the third e-mail was copied to Mr Lang of Coral. Further, the Defendants appeared to suggest at the trial that the purpose of the strategy meeting was to discuss what became this litigation and Coral were initially a party to this litigation. Yet further, if the purpose of the meeting was to discuss collusion between Ladbrokes and William Hill (but not Coral), it is not clear why Mr Roseff was invited to the meeting.[96]The Defendants next rely on certain e-mails on the 23rd and 24th December 2007. The immediate catalyst for these exchanges was the fact that Coral signed up to Turf TV at the end of 21st December 2007 and that fact became more widely known on 22nd December 2007. Mr Spearing of William Hill was on holiday abroad and he heard the news not later than 23rd December 2007.[97]On 23rd December 2007, Mr Spearing of William Hill sent an e-mail to Mr Bell of Ladbrokes. The e-mail chain shows that there had been an earlier e-mail from Mr Bell of Ladbrokes to various recipients including Mr Spearing of William Hill and Mr Lang of Coral. The text of that e-mail has not been disclosed on the grounds that parts were privileged and parts were irrelevant. However, the documents do reveal that the e-mail of 19th December 2007 concerned certain advice from leading counsel, although not the subject matter of the advice.[98]On 23rd December 2007, Mr Spearing used the e-mail of 19th December 2007 to give him the address for Mr Bell of Ladbrokes to whom he sent an e-mail on his Blackberry. Part of the e-mail sent has been redacted. The part that is available reads as follows:
“Chris, in view of Coral announcement I am sure we will all reflect on our position re Turf TV and the wider implications. We are due to hold a Cat A meeting on 7th to discuss the levy. I think the Coral decision has an impact on the court case, the position of SIS, the future of the ABB and other issues…in short do you want to keep the Monday meeting or meet up earlier?”
[99]Mr Bell replied to Mr Spearing’s e-mail. Part of Mr Bell’s reply has been redacted. The part that is available shows Mr Bell agreeing that it would be better to move the meeting forward. Mr Spearing then replied by e-mail saying that the Coral news was “a real bummer”.[100]Mr Spearing gave evidence that he had not been aware before the Coral news became public that Coral were in negotiation with Turf TV. The Coral action was obviously a significant event. It had been clear for some considerable time that as soon as one of the three companies, Coral, Ladbrokes and William Hill, signed up with Turf TV, the other two would have to consider their position very seriously and almost certainly sign up also.[101]The Defendants make a number of points about the e-mail exchange between Mr Spearing of William Hill and Mr Bell of Ladbrokes. The first point the Defendants make is that it is remarkable that a senior executive from William Hill should e-mail the senior executive of his largest rival. In other circumstances, that fact would indeed be remarkable. However, there are a number of features which make this exchange much less remarkable and, indeed, not suggestive of anything unlawful. The first feature is that some time before the 23rd December 2007, William Hill and Ladbrokes and, indeed, Coral had started the present proceedings. The Claim Form and the Particulars of Claim are dated 13th September 2007 and a Defence and Counterclaim was served on or about 12th October 2007. Mr Spearing’s e-mail to Mr Bell refers to the Coral decision having an impact on the court case and that is a reference to the present litigation. The second feature is that Mr Bell and Mr Spearing were both concerned with the category A meeting fixed for 7th January 2008 for the purpose of discussing the levy and they were both concerned with SIS and the ABB. Mr Spearing’s e-mail refers to all of those matters.[102]The second point made by the Defendants on Mr Spearing’s e-mail focuses on the phrase “we will all reflect on our position re Turf TV”. It is pointed out that the e-mail does not refer to “our positions” but to “position” in the singular. If the e-mail had referred to “positions” in the plural, then, in my judgment, the e-mail could not be said to have been significant in the present context. It was undoubtedly necessary for each of William Hill and Ladbrokes to reflect on their position and such reflection could, and should, take place independently. The Defendants say that the reference to “our position” means, and can only mean, the position previously jointly held by the two companies as a result of the co-ordination of their behaviour. I would be very hesitant indeed before giving real weight to the presence or absence of an “s” in an e-mail. Grammar and spelling are often imperfect in e-mails. I will however take this point into consideration in the round when considering the reliability of the evidence of the bookmaker witnesses.[103]The third point made by the Defendants is that Mr Spearing thought that the Coral decision might have some implications for the future of the ABB. Mr Spearing explained in his evidence that the functioning of the ABB was of great importance to him. It is much less clear why the Coral decision would have an impact on the functioning of the ABB. It may be that the Coral decision showed that Coral was putting its own interests ahead of industry-wide considerations which the ABB was seeking to advance. The Defendants submit that the implication is that Coral had done something contrary to an understanding with at least some the ABB members and would therefore have to be removed from the ABB. I am unable to see how Mr Spearing’s brief reference to the ABB would justify the implication that there was an understanding between Coral and other bookmakers, all of whom were members of the ABB, which Coral had broken.[104]The Defendants also referred to internal e-mails within William Hill on the 24th December 2007. In my judgment, the content of those e-mails does not throw light on the matters in dispute.[105]The Defendants next draw attention to an e-mail sent by Mr Spearing on 3rd September to a Mr Wasani and Mr Harding, both of William Hill. Mr Wasani dealt with detailed financial matters on behalf of William Hill. The e-mail concerned Turf TV and in various places referred to the cost which William Hill might incur if it signed up to Turf TV. The first paragraph of the e-mail refers to a sum of £4,900 plus VAT per shop. It is not clear whether this was the cost of the Turf TV service or infrastructure costs. The third paragraph of the e-mail stated that the four major bookmakers had decided independently not to subscribe. As this e-mail is an internal document, this statement can be relied upon by William Hill in these proceedings by showing the absence of co-ordinated behaviour by the four major bookmakers. The e-mail goes on to refer to the fact that some 1,600 to 1,800 LBOs had signed up with Turf TV, with the majority of those being in Ireland, and the Tote being the only large operator in the UK to sign up. Paddy Power had signed up in April 2007 and the Tote had signed up at the end of May 2007. The e-mail then said:
“We believe the annual fee negotiated is much lower than the quoted headline rate of £6,500 + VAT, it is more likely to be circa £3,500 + VAT.”
This stated belief appears to refer to the rate which had been agreed by AMRAC with the LBOs that have signed up, rather than the rate that has been offered to an operator who had not signed up. The e-mail further refers to this rate of £3,500 plus VAT and states:
“From feedback we believe we could negotiate a deal at this level...”
[106]The e-mail of 3rd September 2007 continued by speculating whether AMRAC could offer a lower price than £3,500 and considered the financial position of AMRAC, if all LBOs signed at that rate.[107]The Defendants submit that the only plausible explanation for William Hill referring to a figure of £3,500 in this e-mail is that Mr Spearing of William Hill was given that figure by “one of his rivals”. The Defendants then refer specifically to the fact that £3,500 was the figure offered by AMRAC to Ladbrokes in February 2007 at a meeting between Mr Morcombe and Mr Siers with Mr Ross of Ladbrokes.[108]The Defendants cross-examined Mr Harding, Mr Spearing and Mr Ross in relation to this matter. Mr Harding stated that there had not been negotiations between William Hill and AMRAC until the end of December 2007. However, he also said that, in September 2007, information was given by Mr Morcombe to William Hill about arrangements that might be entered into by Ladbrokes. Mr Harding did not know where Mr Spearing had got the figure £3,500 from. However, he referred to the fact there were rumours circulating that the figure agreed with the Tote was closer to £2,000 and that the figure agreed with Paddy Power was closer to £2,500. Mr Harding also added that in September 2007 “the noise in the industry” was that Ladbrokes were close to signing up with Turf TV.[109]Mr Spearing was cross-examined about his awareness of the price that AMRAC might wish to charge William Hill. Mr Spearing was reminded that in his witness statement he had said that Mr Roseff told him in May 2007 that certain members of the Independent Bookmakers Association were being offered Turf TV at the rate of £4,875 for the first year. Mr Spearing was not impressed by that level of discount. Mr Spearing said when cross-examined that he thought that William Hill would get a better discount. He also said that he tried to estimate what Turf TV would be paying the racecourses. He said the figure £3,500 was an estimate based on what William Hill believed AMRAC was doing at that moment. He then referred to his belief in September 2007 that the figure agreed with the Tote had been something like £2,500 and that the figure of £3,500 was believed to be an average of what William Hill estimated was available from AMRAC at that time. It was related to the minimum break-even point that Turf TV could live with. It was put to Mr Spearing that he had in fact obtained the figure of £3,500 from “one of your rivals”. Mr Spearing did not accept that suggestion.[110]Mr Ross was also cross-examined on this topic. It will be remembered that AMRAC had offered a figure of £3,500 to Mr Ross in February 2007 but by June 2007 AMRAC had told Mr Ross that Ladbrokes had missed the opportunity of the early adopter discount and the price had gone up to £4,800. It was put to Mr Ross in cross-examination that he had given the figure of £3,500 to Mr Spearing. Mr Ross said that he had not given this figure to Mr Spearing and that under no circumstances would he discuss his commercial strategy with his competitors.[111]In my judgment, the fact that the figure of £3,500 which appears in the e-mail of 3rd September 2007 is the same figure as was quoted to Mr Ross in February 2007 means that one must consider the possibility that Mr Ross might have given that figure to Mr Spearing of William Hill. However, if Mr Ross was the source of the figure there are certain curiosities that must be addressed. The first is the question why Mr Spearing was using, in September 2007, a figure which dated from February 2007 rather than a more up to date figure which Mr Ross had been given in June 2007. The second curiosity is in combining the suggestion that Mr Ross was disclosing to Mr Spearing that Mr Ross was in communication with AMRAC, as to the price that AMRAC would charge Ladbrokes, with the Defendants’ case that Ladbrokes and William Hill (and indeed Coral and BetFred) had co-ordinated their behaviour to boycott Turf TV. If there had been an agreement to co-ordinate behaviour and, in addition, a disclosure by Mr Ross which must have revealed to Mr Spearing that Ladbrokes were negotiating to take Turf TV, the agreement to co-ordinate behaviour would be unlikely to achieve anything.[112]In my judgment, it is far from obvious that Mr Ross was the source of the figure of £3,500 used by Mr Spearing. Mr Spearing had other information about what AMRAC needed to secure, and was hoping to secure, from subscribers. It is not at all surprising to me that Mr Spearing, with his experience of the industry, could have deduced a figure which he believed William Hill could successfully negotiate with AMRAC.[113]The Defendants next referred to certain language used by Mr Harding when cross-examined. Mr Harding explained that in around September 2007, William Hill became concerned that Ladbrokes would steal a march on them by signing up first with Turf TV. The Defendants point to the fact that Mr Harding referred to Ladbrokes being “the ones that were likely to stab us in the back” and Ladbrokes being likely “to break ranks”. The Defendants submit that these phrases are revealing and are only consistent with the true position being that there had been an earlier agreement between Ladbrokes and William Hill to coordinate their behaviour and to boycott Turf TV. In my judgment, reading the whole of the exchanges between Counsel and Mr Harding at this stage in his cross-examination, the Defendants’ suggestion is not a fair reading of the evidence he gave. It is clear that Mr Harding was saying in terms that there was no such agreement although he did refer to the fact that bookmaker companies were guessing about the behaviour of their competitors by reference to the many statements made in the press by those competitors. In my judgment, Mr Harding’s use of these phrases shows that these phrases are not consistent only with there being a prior co-ordination of behaviour but they are also consistent with each competitor being opposed to Turf TV but each competitor having the ability to be the company that signed up with Turf TV first and pocketed the early adopter discount.[114]The Defendants next relied on certain evidence given by Mr Ross as to the attitude of, and statements made by, Mr Walsh of Coral. At the very end of the hearing of 21st May 2008, when Counsel had completed his questions to Mr Ross for that day, I asked Mr Ross to tell the Court something about the attitude of Mr Walsh of Coral to Turf TV. Mr Ross said:
“He certainly displayed a great deal of dislike for Turf TV and the individuals involved in Turf TV. He was quite vocal on occasions, and a man who expressed his opinions openly.”
I then asked him to expand on the statement that Mr Walsh was quite vocal on occasions. Mr Ross said:
“Well, he - he would make comments about Turf TV. Just in general, in a meeting he may have said, “I’ve no intention of signing”, or something like that but-”
I then asked Mr Ross whether Mr Walsh talked about Coral’s own commercial position in meetings with others. To this Mr Ross replied:
“Perhaps - perhaps he did, I am not sure.”
[115]No one wished to ask Mr Ross anything further about these answers on the 21st May 2008. On the 22nd May 2008, the cross-examination of Mr Ross continued and Counsel did not return to the answers Mr Ross had given on the 21st May 2008. At the very end of Mr Ross’ re-examination, Mr Ross indicated that he wanted to add something to his evidence and he then said this:
“Something I said yesterday at close about the Coral situation, where Mr Walsh was fairly open about his viewings (sic) of Turf TV in general. I can only recollect one occasion where he said that he was not taking the service, and I believe that that was sometime in the summer of 2007. The comment he made, and I can’t remember the words, but the implication was what had already been said by Mr Goulden. It was public knowledge, because it was in the Sunday Telegraph, I think. So I took it that what he was saying was actually just reiterating what his boss had said publicly. I emphasise that on no occasion did I have any conversation with Mr Walsh, or any other member of the BAGS board or the ABB about Ladbrokes’ strategy, their strategy, their timing, or anything to do with what their commercial intentions were.”
[116]The Defendants submit that what Mr Walsh of Coral did was to disclose Coral’s future intentions or conduct in the market to its competitor. Those competitors “accepted” that disclosure so that there was a co-ordination of behaviour between the competitors, in particular, to boycott Turf TV.[117]If I accept Mr Ross’ evidence in its entirety, including his elaboration on 22nd May 2008 to the effect that Mr Walsh’s statement was made on one occasion and was the same as statements made by Mr Goulden in the press then Mr Walsh’s statement is unlikely to have added very much to the relevant events or to have influenced, in any discernable way, the conduct of other bookmakers in view of the fact that all of the relevant bookmakers had made public statements at various stages in 2007. The Defendants do not contend that the making of public statements is sufficient to establish a case of co-ordinated behaviour to boycott Turf TV. Of course, when considering whether I should accept the evidence of the bookmaker witnesses, and Mr Ross in particular, I will have to reflect on the fact that Mr Ross’ evidence on 21st May 2008 may have been unguarded and for that reason more revealing than his evidence on 22nd May 2008 when he had plainly considered the matter overnight and was sufficiently concerned about the impression he had given to describe the matter in a way which would cause less harm to Ladbrokes’ case.[118]It will be remembered that the Defendants’ case as to collusion in relation to a boycott of Turf TV is that BetFred was a party to the collusive behaviour. Very few, if any, of the detailed matters relied upon by the Defendants in support of their case on collusion involved BetFred. From the totality of the evidence before me, it is my judgment that Mr Done of BetFred was a fiercely independent bookmaker and in general conducted his affairs in the way he saw fit, without being influenced by the attitude of the other bookmakers. Further, there was very little contact between BetFred and Mr Done on the one hand and the other bookmakers on the other.[119]There is one specific matter which is alleged by the Defendants against BetFred. This relates to the purchase by Mr Done personally, rather than BetFred, of shares in SISH. BetFred had a contract to take SIS FACTS in its LBOs but that contract was due to come to an end in early 2007. In early February 2007, BetFred agreed a four year extension of that contract. On 29th March 2007, the other share holders in SISH diluted their shareholdings to enable shares to be transferred to Mr Done personally. The Defendants say that Mr Done personally was allowed to buy shares in SISH in return for BetFred signing up to a four year contact for SIS FACTS. The connection between these two matters is denied by SISH, by Mr Done and by the other bookmakers. It is necessary to consider the contemporaneous documents to ascertain the true position.[120]On 5th December 2006, Mr Haddock, the Managing Director of BetFred, wrote to Mr Holdgate at SIS. Mr Haddock’s letter stated:
“As part of our continued support of SIS, Fred will be offered a seat on the SIS board and the option to buy the following shares.”
Mr Haddock then referred to a certain number of shares and a specified price. There was no suggestion that the price which Mr Done ultimately paid for the shares was anything other than their full market value.[121]On 5th December 2006, Mr Holdgate of SISH e-mailed various recipients, including Mr Harding of William Hill and Mr Ross of Ladbrokes. Mr Holdgate’s e-mail raised two points in relation to the share transaction with Mr Done. Mr Holdgate stated that the matter was urgent and he needed to get back to Mr Done that day. The Defendants suggest that the reason for the urgency was that SIS was keen to sign up with Mr Done in relation to SIS FACTS. Mr Holdgate’s email had also gone to a Mr Warwick Bartlett, who was an independent bookmaker. Mr Bartlett asked Mr Holdgate by return of e-mail:
“Are you saying that if we grant Fred this option he will sign exclusively with us, this month?”
Mr Bartlett’s e-mail also went to Mr Harding of William Hill and Mr Ross of Ladbrokes.[122]On 5th December 2006, Mr Ross of Ladbrokes sent two e-mails to Mr Holdgate in reply to Mr Holdgate’s earlier e-mail. Mr Ross’ first reply was to agree to the proposal in relation to Mr Done. Mr Ross’ second reply was that his agreement to the proposal was “subject to Fred signing prior to option being granted”.[123]Also on 5th February 2006 Mr Haddock of BetFred received an e-mail which had been sent on behalf of Mr Holdgate. The e-mail principally dealt with detailed terms in relation to the proposed contract for SIS FACTS. The e-mail did not refer to the question of shares being transferred to Mr Done. However, the e-mail contained this term:
“Should Ladbrokes, William Hill, Coral or Tote decide to sign up for the RUK product then BetFred may do likewise without any penalties imposed by SIS.”
[124]There were further communications between Mr Holdgate and shareholders in SISH (apart from bookmaker shareholders). As part of these exchanges, on 14th December 2006, Mr Ross e-mailed Mr Holdgate stating his assumption that the option agreement in favour of Mr Done was to be formalised after BetFred signed up for SIS FACTS. Mr Holdgate replied on the 15th December 2006 referring to a discussion at a recent board meeting stating that the equity stake for Mr Done must remain totally separate from his decision “on his LBO service supplier”. Mr Holdgate added that Mr Done wanted to complete the contract with SIS FACTS as soon as possible and then he would decide whether he wished to proceed with his purchase of shares. As indicated above, the contract for SIS FACTS was entered into some weeks before the share sale agreement was executed.[125]On 22nd December 2006, SIS prepared a side letter relating to the new contract with BetFred. The side letter repeated the statement made in the earlier email of 5th December 2006 referring to the possibility of BetFred signing up with Turf TV.[126]In my judgment, the contemporaneous documents strongly indicate that some, at least, of the participants in the transaction, involving a transfer of shares in SISH to Mr Done, saw this transfer as part of an inducement to BetFred to renew its contract for SIS FACTS. Mr Ross certainly saw matters that way. Mr Holdgate probably wanted to keep the two matters separate so that there would be no suggestion that BetFred had obtained favourable terms in relation to SIS FACTS. He possibly also wanted to be able to refer to BetFred supporting SIS FACTS on its own merits rather than as a result of extraneous inducements. Mr Done insisted when cross-examined that the renewal of the BetFred contract for SIS FACTS and the share transaction were entirely separate. Although I have no hesitation in accepting the greater part of Mr Done’s evidence, I do not think that his evidence on this particular topic was entirely frank and I do not accept it. I conclude that so far as Mr Done was concerned and so far as some of the participants in the share transaction were concerned, BetFred’s decision to sign up with SIS FACTS was linked to the share transaction.[127]However, the link between BetFred’s decision to purchase SIS FACTS and the share transaction in favour of Mr Done does not, in my judgment, mean that Mr Done or BetFred at that time, or at any other time, agreed to co-ordinate behaviour with Coral, Ladbrokes and William Hill to boycott Turf TV. I do not attach any significance to Mr Bartlett’s e-mail which referred to BetFred signing exclusively in relation to SIS FACTS. It does not appear that BetFred was ever asked to do so. Further, the reference to BetFred being free to sign up to Turf TV shows that BetFred was not committing itself to boycott Turf TV. I have considered whether the terms of the side letter which referred to BetFred being free to sign up to Turf TV, in the event that Ladbrokes, William Hill, Coral or Tote did sign up, might suggest collusion involving BetFred. I conclude that the terms in the side letter do not suggest collusion. One of the four companies named in the side letter is the Tote and it has never been suggested that the Tote co-ordinated its behaviour with other bookmakers to boycott Turf TV. Indeed, the contrary appears clearly to be the case. The presence of Tote in the list of four bookmakers suggests to me that BetFred only considered the possibility that it might ever want to sign up to Turf TV (to which it was otherwise opposed) in the event of one of the other four significant bookmakers first signing up to Turf TV. That does not amount to co-ordination of behaviour to boycott Turf TV.[128]In their closing submissions, the Defendants withdrew their claims of allegedly unlawful conduct by BAGS and others in relation to BAGS’ decision not to take a sub-licence in relation to the April courses and not to take the rights to the Kempton Park evening racing. I have however considered the factual matters relied on by the Defendants in relation to these two allegations with a view to considering whether the facts relied upon by the Defendants are of assistance in deciding the Defendants’ claims to a collusive boycott of Turf TV and co-ordinated behaviour in relation to withdrawal of sponsorship. In relation to the April courses and the Kempton Park evening racing, in my judgment, it is clear that an important reason for the decisions made by BAGS in these respects was that BAGS considered that Turf TV would be bad for bookmakers and punters and BAGS did not wish to take action to facilitate the market entry of Turf TV. This decision by BAGS is all of a piece with a matter on which I have already made a finding of fact, that is, that Coral, Ladbrokes, William Hill and BetFred were hostile to AMRAC and Turf TV. I do not, however, regard the actions of BAGS in relation to the April courses and The Kempton Park evening racing as revealing anything specific about the presence or absence of collusive behaviour in relation to boycotting Turf TV or withdrawing sponsorship.[129]I next turn to consider some specific features of the Defendants’ claim in relation to collusion in respect of sponsorship. The Defendants allege collusion on the part of Coral, Ladbrokes and William Hill, but not on the part of BetFred. There is little or no dispute about the following matters. Sponsorship of major fixtures at racecourses is an important source of income for racecourses. Each of Coral, Ladbrokes and William Hill traditionally provided sponsorship. Each of Coral, Ladbrokes and William Hill withdrew some sponsorship from some RUK courses in the relevant period. The reasons for withdrawing sponsorship, at least so far as Ladbrokes and William Hill, were concerned, were that they did not wish to support Turf TV as a new market entrant and, in consequence, they did not wish to support racecourses that had signed up to AMRAC/Turf TV. There was therefore parallel behaviour in relation to sponsorship on the part of Coral, Ladbrokes and William Hill. The principal issue therefore is whether these three companies acted unilaterally, or whether they co-ordinated their behaviour as the Defendants assert.[130]Apart from the fact of parallel behaviour in relation to sponsorship, the Defendants point to a number of specific matters or alleged matters. The Defendants say that certain bookmakers reached an agreement at a side meeting at the ABB AGM on 22nd February 2007 to withdraw sponsorship. I have already made my finding in relation to this alleged fact.[131]Next, the Defendants rely upon the e-mail exchange between Mr Hood of William Hill and Mr Harding of William Hill on 26th February 2007 which referred to being “on the same sheet re sponsorship”. I have already made my findings in relation to that e-mail.[132]The Defendants next rely upon an exchange of e-mails on 2nd July 2007. The exchange began with an e-mail from a Mr Watson of BetFred to a Miss Prest of William Hill. Mr Watson was offering to assist Miss Prest in arranging sponsorship by William Hill for the Cancer Research Race Day at Haydock Park. Miss Prest of William Hill forwarded this e-mail to Mr Hood of William Hill. Mr Hood replied to Mr Watson of BetFred with a copy to Miss Prest. Mr Hood said that Cancer Research was not one of the charities supported in William Hill’s charity mandate. He added:
“Also, Haydock is an RUK/Turf TV track and ostensibly on the black list for all support for the foreseeable future”
. Mr Watson of BetFred acknowledged this response and there the matter rested. The Defendant emphasised the words “the black list”. They say that this shows there was a black list and that I should infer that the black list was drawn up by William Hill and other bookmakers. The Defendants do not say that the black list was drawn up by bookmakers which included BetFred. Therefore the Defendants’ submission is that I should read Mr Hood’s e-mail to BetFred as referring to a black list to which BetFred was not a party but to which other companies were parties. In my judgment, on a fair reading of Mr Hood’s e-mail, it is much more likely than not that it is referring to William Hill’s own black list. This shows that William Hill had made a decision to withdraw sponsorship from certain RUK courses. It does not show that William Hill had made an arrangement with Coral or Ladbrokes that the three companies would withdraw support from RUK courses. The Defendants say I should attach particular significance to this e-mail because Mr Hood was not called to give evidence. However, I am left with the terms of the e-mail which do not on their face suggest collusion by William Hill with other bookmaker companies. Further, if there had been collusion in relation to sponsorship, Mr Harding and Mr Spearing of William Hill would have been likely to have known about it and this e-mail was not put to them.[133]The Defendants also rely on evidence given by Mr Gibson of Sandown Park of a conversation he had with Mr Done of BetFred on 17th September 2007. The conversation concerns sponsorship and Mr Done told Mr Gibson that Mr Stone had spoken to someone at Coral when Coral told Mr Done that Coral was continuing to sponsor Sandown in 2008 but would not be doing so in 2009. This evidence shows contact between Coral and BetFred. However, the Defendants do not allege that BetFred was a party to collusion with Coral, or anyone else. In my judgment, I cannot rely upon the fact that Coral spoke to BetFred about Coral’s intentions in relation to sponsorship as establishing the fact of collusion between Coral and Ladbrokes and /or William Hill.[134]In relation to the alleged collusion in respect of sponsorship, the Claimants say that the parallel behaviour of certain bookmakers in withdrawing sponsorship was independent behaviour. It is submitted that withdrawal of sponsorship was precisely what was to be expected by bookmakers making their own individual decisions. It was pointed out that as early as 21st November 2006, Mr Harding told Mr Coppel of RHT that if the RUK courses went ahead with the proposed joint venture William Hill would withdraw sponsorship from RHT courses. Further, on 5th December 2006, in an e-mail from Mr Derby of York to Mr Bazalgette of RUK, Mr Derby pointed out that there was a business risk to racecourses because it could be foreseen that Ladbrokes and William Hill would withdraw sponsorship from certain courses.[135]The Defendants’ submission that the parallel behaviour in relation to sponsorship is strongly suggestive of co-ordinated behaviour is significantly blunted by the fact that BetFred withdrew sponsorship from some courses but the Defendants do not allege that BetFred co-ordinated its behaviour with others.

Discussion and conclusions

[136]I have now addressed, and made my findings on, all of the general and the specific matters relied upon by the Defendants in support of their case that there was collusion both in relation to boycotting Turf TV and in relation to sponsorship. The Defendants submit that if one gives proper weight to the general matters they rely upon, and examines the specific matters they refer to, and looks at the combination of those specific matters operating together, then one should, on the balance of probabilities, reach the conclusion that there was collusive behaviour as alleged by the Defendants. To encourage me to take this view, Mr Roth on behalf of the Defendants pointed out that collusive behaviour has happened in the past in other industries and that I should not regard it as inherently improbable that it happened in this case.[137]There was parallel behaviour in this case. As regards the question of signing up to Turf TV, the parallel behaviour consisted of Corals, Ladbrokes and William Hill not signing up until December 2007/January 2008. By the date of the trial, BetFred had not even then signed up to Turf TV. As against that, some of these four companies discussed with AMRAC the terms on which they might sign up. Ladbrokes, through Mr Ross in particular, negotiated off and on for many months with Turf TV. The proposed joint venture discussed terms with Coral on 7th September 2006 and 8th November 2006 although I appreciate that the Defendants say that Coral was already guilty of collusive behaviour by this stage; a matter on which I have already made findings. William Hill did not negotiate with the joint venture until a late stage but this can be explained by reason of Mr Harding’s particular attitude to the joint venture. There was also parallel behaviour in relation to withdrawal of sponsorship from some courses but, as I have already pointed out, behaviour of this kind was to be expected from bookmakers and such behaviour does not necessarily show that there was collusion. Indeed, BetFred withdrew sponsorship from some courses but it is not said that BetFred was a party to any collusion.[138]What the Defendants’ case largely leaves out of the reckoning is the oral evidence given on behalf of Ladbrokes, William Hill and BetFred. The Defendants were fully entitled to cross-examine the witnesses from these companies about the parallel behaviour in respect of signing up to Turf TV and sponsorship. The Defendants were entitled to say that the parallel behaviour invited suspicion and should be explored in the evidence. The Defendants were entitled to raise the specific matters on which they rely with witnesses from these three companies. Indeed, there was extensive and thorough cross-examination of such witnesses. Mr Bell and Mr Ross of Ladbrokes were cross-examined. Mr Harding and Mr Spearing of William Hill were cross-examined. Mr Done of BetFred was cross-examined. The Defendants point out that Mr Hood and Mr Brown of William Hill were not called to give evidence. I have already referred to the specific matters in which Mr Hood or Mr Brown participated. However, if there had been the collusion alleged by the Defendants, Mr Harding and Mr Spearing of William Hill would have known about it.[139]In my judgment, the Defendants are not able to point to any statement made in evidence by the various witnesses on behalf of Ladbrokes, William Hill and BetFred which could fairly be taken as an admission of the collusion alleged. The Claimants’ witnesses were taken carefully through the long list of specific matters which, the Defendants said, showed collusion or which called for an explanation. The witnesses from the bookmaker companies did give explanations of the circumstances surrounding the specific matters raised by the Defendants. Those witnesses consistently explained the detail of their involvement in terms not involving any collusion of any relevant kind. My general assessment of the bookmaker witnesses is that their evidence (with one exception) was credible and reliable. I think it is likely that the way in which the bookmaker witnesses conducted themselves in the witness box and the language they then used was not identical to the way in which they acted and expressed themselves in relation to relevant matters in 2006 and 2007. It is clear that they all held strong views on the subject of Turf TV. However, in relation to the essential matters of fact which they were describing, I accept their evidence. I have already referred to the one exception, concerning the sale of shares in SISH to Mr Done, where I have held that the evidence was not reliable.[140]Accordingly, I hold that the relevant bookmaker companies did not collude in the ways alleged by the Defendants. I hold that the general and specific matters relied upon by the Defendants, even when the individual matters are considered in combination, are nowhere near strong enough to justify me in rejecting the sworn evidence to the contrary of the bookmaker witnesses.[141]As a result of my findings of fact in relation to the allegations of collusion, the Counterclaim for damages and other relief as a result of the alleged collusion must fail. It does not seem to me to be helpful to discuss, in the alternative, issues which were argued as to causation of loss nor as to the suitability of some of the relief claimed in the Counterclaim.

The overall result

[142]It follows that I will dismiss the remaining parts of the Counterclaim which were not already dealt with in my first judgment given on 8th August 2008.

Cited in 3 later judgments