Arsenal Football Club revists Ashworth Hospital

When pictures of top football players appeared in a calendar published by Elite Sports Distribution in 2002, it caused some puzzlement at Arsenal Football Club and other Premier League clubs.

They had granted licences on behalf of the clubs to photographers and photographic agencies allowing them to enter football grounds to take photographs at league matches. The licences restricted what could be done with the photographs and prevented their use in unofficial products. But no licence had been granted to Elite.

Legal action followed. Elite was aware of the licensing system but alleged that such restrictions were anti-competitive and therefore void. It refused to disclose the names of the photographers or agencies from whom it had acquired the photographs, so the clubs sought an order that it reveal how it obtained them.

They asked the court to use its power to order specific disclosure of documents under the Civil Procedure rules, before deciding whether their claim could succeed.

The case is interesting because the clubs asked the court in the alternative to use what is known as the Norwich Pharmacal jurisdiction (following a case of that name).

That jurisdiction is normally applied against a non-party, where the applicant believes he may have a case against an unknown wrongdoer but first needs to find out who he is.

It was confirmed by the House of Lords in the recent action brought by Ashworth Security Hospital against the Mirror that where a party is involved in another’s wrongful act, that party is under a duty to assist the injured party by giving information which would identify the wrongdoer.

In the Arsenal case, although it was not clear that there was any wrongdoing by the photographers (because of the possibility that the restrictions in the licences were anti-competitive), the court nevertheless held that a Norwich Pharmacal order would have been available, as an alternative to specific disclosure.

It held that the clubs were entitled, by way of specific disclosure, to an explanation as to how the defendant obtained the photographs. The defendant was given permission to apply to strike out the action, if disclosure demonstrated that the clubs’ case was unsustainable.

Because of the order for specific disclosure, there was no need for a separate Norwich Pharmacal order. Nevertheless, the case shows the court’s propensity to assist claimants in identifying the source of offending material, in the interest of saving time and expense.

Benjamin Beabey is an assistant in the media team at Farrer & Co

by Benjamin Beabey

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