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In the latest round of the dispute between Sports Direct and Newcastle United about the supply of the club’s replica kit, the Court of Appeal today confirmed the earlier decision of the Competition Appeal Tribunal not to grant Sports Direct an interim injunction, but found that the Tribunal had erred in finding that there was no serious issue to be tried.
Sports Direct had argued that it should be entitled to supply of Newcastle replica kit for the 2024/5 season and beyond, having been a retailer of the kit for many years, and had sought an interim injunction to secure supply in time for the planned summer launch and ahead of a trial of the matter. In April, the Tribunal refused the application, deciding that Sports Direct had not established a “serious issue to be tried”, and that in any event the balance of convenience lay in favour of the club. It nevertheless held that the matter should proceed to a speedy trial.
Following an expedited, rolled up hearing, the Court of Appeal upheld that decision. It found that the Tribunal had been wrong to decide that there was no serious to be tried, but that this did not affect the Tribunal’s reasoning on the balance on convenience.
As regards the question of whether there was a serious issue to be tried, the Court held that the Tribunal fell into error in disregarding contested facts. It should have approached the question on the basis that “the claimant’s allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial”. The Tribunal had thus been incorrect to find that Sports Direct had not met the requisite standard. The Tribunal had been entitled though to take into account its view of the weakness of Sports Direct’s case in relation to the balance of convenience.
Alison Berridge appeared for Newcastle United, and Stefan Kuppen appeared for Sports Direct.
The Court of Appeal’s judgment is available here.