Hold your horses: Raceday data dispute likely to head to Supreme Court

In a dispute, between suppliers of live betting and raceday data from racecourses, the Court of Appeal was asked to consider whether a duty of confidence could be applied to live sports data between its creation and broadcast when that information was available in real time.

 We look at the Court's decision, and the reasons for it, in more detail below.

The Racing Partnership Ltd (TRP) provided live betting services at racecourses across the UK. Arena Leisure Ltd (AL), owned six courses and in 2016, it entered into a contract with TRP to collect data from those racecourses in 2017.

Sports Information Services (SIS), the defendant, had previously held the right to collect and distribute data from AL's racecourses. After the expiry of its contract in December 2016, SIS continued to provide data from unofficial feeds.  TRP brought a claim alleging that SIS had unlawfully supplied data to the Betfred Group and the Ladbrokes Coral Group and that the three companies, together with Tote (Successor Company) Ltd, trading as 'Totepool' (the Tote) had conspired to cause injury to TRP by unlawful means.

At first instance, the High Court held that the information supplied by SIS was confidential to TRP and AL – it had the necessary quality of confidence and was given in circumstances importing confidentiality obligations. By supplying the information to off-course bookmakers, SIS had therefore acted in equitable breach of confidence. However, TRP’s unlawful conspiracy claim was rejected as TRP failed to demonstrate knowledge between SIS and at least one other conspirator that the means was unlawful. 

Both SIS and TRP appealed and, in majority decisions, the Court of Appeal allowed both, with each judge providing an alternative basis for their decision.

TRP's claim for misuse of confidential information by SIS was dismissed. The majority held that no duty of confidence was imparted in the circumstances, as the races were broadcast live and so data (such as the winner and non-riders) would be known in real-time.

The question to be answered was whether a reasonable person would expect to understand whether SIS understood that the Tote was bound by confidence obligations in the circumstances. As SIS did not receive the information under an obligation of confidence, the majority found that no equitable duty was owed. Arnold LJ disagreed with this conclusion, finding that there was a misuse of confidential information. In doing so, he noted that the doctrine of misuse of confidential information is about the control of information (i.e. its accessibility), not its secrecy and that it was a type of unfair competition.

SIS was however found liable for conspiracy to injure by unlawful means. This occurs where two or more parties act together, unlawfully, with the intention of doing damage to a third party and doing so. On majority, the Court of Appeal held that knowledge of the unlawfulness of the means employed was not required.

The various diverging views in the judgment and the fact that the decisions were reached on a majority basis could well mean that the dispute is destined for the Supreme Court.

In the meantime, it should be remembered that a contract is not the totality of the relevant parties' relationships with one another. There are equitable rights (e.g. obligations of confidence) and tortious duties (e.g. economic torts) that may also be relevant, and the scope of these duties may change, depending on the circumstances.

Companies dealing with commercial data (e.g. financial / market data, advertising metrics, sports data, etc.) should:

• review and vet their data / information sources / feeds;
• ensure their sources / suppliers have the necessary rights to supply the data (backed by appropriate warranties and indemnities);
• ensure that any data usage is within the scope of the applicable licences and rights granted; and
• ensure that any onward licensing / commercial arrangements are 'back to back' and have suitable restrictions and protections in place.