In the original case brought in October 2008 JML argued that Freesat had failed to use the criteria set out in the Listings Policy and had instead used a subjective method.
Channels pay £30,000 (€34,330) a year for their Freesat listing and a further £1,500 registration fee. This is Freesat’s only funding and in addition channels will be required to pay for their other transmission costs, including the all important satellite capacity.
JML expressed an early interest in a Freesat presence, submitting its application during the February window that followed Freesat’s initial invitation made in the autumn of 2007.
However, when in April 2008 Freesat allocated its two channel positions (809 and 810) JML discovered that because only seven or eight channels are displayed on each page of the EPG, neither channel would find itself on the first page of the shopping genre.
JML appealed on three grounds; the failure to apply a published method of allocation; whether Freesat took into account the date the EPG agreements were entered into as required by the listing policy; and a third based on the Justice Blackburne’s finding that Freesat disregarded the date of the EPG agreements for two reasons, one of which he described as “quite irrational”.
In his ruling Lord Justice Toulson said he was not persuaded that there had been a breach of contract. He said Justice Blackburne had made extensive findings that supported the original decision. “The judge described the difficulties surrounding the signature of the EPGs in terms that indicate quite clearly that in his view that was not only the primary basis for its decision but was sufficient in itself to lead Freesat to take that course. However, even if that were in doubt, I do not think that the judge’s findings go so far as to establish that its decision was significantly influenced by the perceived difficulty in identifying the dates of the EPG contracts”.