FFW’s Competition team win High Court strike-out battle for RAJAR
12 January 2005
Field Fisher Waterhouse acted for RAJAR (Radio Joint Audience
Research Limited), the non-profit company that commissions and
conducts research into the UK’s radio audiences, in its High Court
victory against Kelvin MacKenzie’s The Wireless Group plc
(TWG).
The judgment was handed down on 16 December after a High Court
hearing in November 2004 of RAJAR’s application to strike out TWG’s
claim. It was represented throughout by a team from FFW, led
by partners Charles Whiddington (competition) and Mark Lewis
(litigation). FFW instructed Nick Green QC and Aidan Robertson,
both of Brick Court Chambers.
TWG brought High Court proceedings against RAJAR, claiming that
the decision taken by RAJAR on 10 June 2003 not to replace the
diary system used to measure radio audiences with electronic
audiometers, was an abuse of an alleged dominant market position
and, therefore, in breach of Section 18 of the Competition Act
1998. Mr Justice Lloyd agreed with RAJAR, that TWG’s
characterisation of RAJAR’s decision as absolute, firm and final,
did not correspond with the real nature of the decision. TWG
claimed in the press that the diary system under-recorded the
audience for its radio station subsidiary talkSPORT and that as a
result it had lost an estimated £66m in advertising revenue. TWG’s
published claims were not substantiated in its pleadings. The Judge
noted that TWG claimed to have suffered loss from a date almost
three years prior to the date of the decision and that seemed to
him to be misconceived.
Mr Justice Lloyd agreed with RAJAR that TWG’s case should be
struck out on the grounds that it had no realistic prospect of
success. He said that TWG’s challenge “does not match the
reality of the case” and that RAJAR’s decision, following extensive
field tests to seek modifications from the meter manufacturers, was
a “rational, commercial approach”. In his judgment, Lloyd J
said:
“When the true nature of the decision is considered, in the context
of facts which appear to be undisputed and indisputable, I find it
impossible to see how that decision could be said to be an abuse of
a dominant position, as lacking objective justification.”
This strike-out victory, rare in a competition case, further
enhances the growing reputation of FFW’s Competition and Regulatory
Law Group, which has a number of high profile private and public
sector clients. FFW (on that occasion with litigation partner Nick
Rose) acted for Ordnance Survey in striking out the competition
defence raised by the AA in the copyright infringement claim
brought against the AA. The group has been further boosted this
year by the lateral hire of Tite & Lewis’ former Head of
Competition, James Robinson.
FFW Competition partner Charles Whiddington says:
“We are delighted with the result. Striking out a claim is never
easy, because it requires showing that the claim has no reasonable
prospect of success. The court has confirmed that in
competition cases such as this, the onus is on the complainant to
establish that the decision is irrational and not objectively
justified. RAJAR’s approach to the possible adoption of
electronic audience measurement was endorsed by the court, which
noted ‘the court must allow undertakings to take business decisions
on normal commercial bases and in a normal way’.
An important feature of this case is that RAJAR is at the
forefront of technology and has always been keen to offer its
stakeholders the choice of moving to an electronic measurement
system, but only when the technology is able to meet its
requirements.”
FFW litigation partner Mark Lewis says:
“The judgment vindicates our strategy of full disclosure, arguably
going beyond what is required by the rules, even going to the
extent of allowing TWG to cross-examine our witness. This meant
that effectively, the Judge was able to see that: “…more fully,
than might otherwise, and normally, be the case what points are in
dispute and which are not.”
For further press information, please contact:
Ben Girdlestone, Communications Manager, on +44 (0)20
7861 4968
Louise Eckersley, PR Executive, on +44 (0)20 7861 4120