Ruling of the Tribunal concerning the constitution of the Tribunal for the purpose of hearing the matter remitted by the Court of Appeal in its judgment of 17 February 2014 ([2014] EWCA Civ 133).
Sky UK Limited (“Sky”) and the Football Association Premier League (“FAPL”) contended that the remitted matter should be heard by the panel that heard the appeals culminating in the Tribunal’s Pay TV Judgment ([2012] CAT 20). British Telecommunications PLC (“BT”) and the Office of Communications (“Ofcom”) contended that a new panel should be constituted. Their objections to the original panel focused mainly on allegations of apparent bias.
Applying the test in Porter v Magill [2002] 2 AC 357, the Tribunal considered whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the panel was biased against BT and/or Ofcom or in favour of Sky/FAPL. For the reasons set out therein, the Ruling concludes that the objections raised by BT and Ofcom to the panel as a whole provide no grounds on which it would be appropriate for the panel to recuse themselves from hearing and determining the remitted matter. The Chairman recuses himself from hearing and determining the remitted matter in light of the specific objections in respect of the Chairman alone made by Ofcom, supported by BT. However, the specific objections in respect of the Chairman alone provide no basis for the recusal of the other two members of the original panel.
