“Freesat Free to Decide”

26 Mar 2009

Judgment was delivered on 26 March 2009 in JML Direct Ltd v Freesat UK Ltd [2009] EWHC 616. The case concerned the allocation of Electronic Programme Guide (“EPG”) numbers by Freesat, a new multi-channel TV service owned jointly by the BBC and ITV (an EPG is an on screen television programme guide used by digital TV systems)

JML (a provider of TV shopping channels) claimed that Freesat had, in breach of contract, failed to comply with its own EPG Listing Policy and the Ofcom EPG Code in allocating numbers to the channels broadcasting on its platform. As a result, JML’s channels had been listed lower down the EPG than they should have been. Dismissing JML’s claim, Mr Justice Blackburne held that Freesat’s Listing Policy was an “objectively justifiable method” for the purposes of the Ofcom Code and that, in applying the Policy, Freesat had acted within the margin of discretion afforded to it under its contract with JML. The judgment confirms that, in order successfully to challenge the exercise of contractual discretion, a claimant must show that the party exercising that discretion acted dishonestly, in bad faith or “irrationally” in a sense analogous to the pubic law concept of Wednesbury unreasonableness.

Tim Ward and Ben Lask were instructed by the BBC on behalf of the successful Defendant.

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Tim Ward QC
Ben Lask