Vestel UK Ltd & Anor v Access Advance LLC & Koninklijke Philips NV

Access Advance administers a large pool of patents essential to the H.265 (or HEVC) standard for high-definition broadcasts. Philips is one of the members of the pool. In early 2019, Vestel – one of the largest manufacturers of televisions in the world – commenced proceedings in the High Court alleging that the global licensing terms offered by Access Advance and/or Philips were abusive and contrary to Article 102 TFEU and the Chapter II prohibition in the Competition Act 1998.  In a judgment delivered on 21 October 2019, the High Court declined jurisdiction over the claim.

Before the Court of Appeal, Vestel abandoned its competition law claim.  Vestel instead contended that the English courts had jurisdiction to consider a freestanding claim for various FRAND declarations on the basis (inter alia) that such a claim was analogous to a claim for a declaration of non-liability in tort, and that the claim was therefore a matter “relating to tort” within the meaning of Article 7(2) of the Brussels Recast Regulation (as regards Philips) and a “claim … in tort” within the meaning of CPR PD 6B para 3.1(9) (as regards Access Advance).  The Court of Appeal rejected that argument, holding that a claim for declarations about FRAND licensing terms was not analogous to a claim for a declaration of non-liability in tort ([53]-[54], [57]).

The Court of Appeal further held that the claim was not within the UK property gateway in CPR PD 6B para 3.1(11) (as regards Access Advance), because that gateway requires “a claim concerning a legal right of some kind”, of which there was none ([69]-[70]), and because a declaratory action had to be “based on the existence or non-existence of a legal right”, which this claim was not ([72]-[80]).

James Segan QC acted for Access Advance, instructed by Powell Gilbert LLP. Andrew Scott acted for Philips, instructed by Bristows LLP.

The judgment is available here.