Title of case:
Case no.
R ((1) Sky Blues Sports 8 Leisure Ltd (2) ARVO Master Fund CO/4432/2013
Limited (3) Coventry City Football Club (Holdings) Ltd)) v
Coventry City Council
Interested Parties (1) Arena Coventry Ltd (2) The Alan
Edwards Higgs Charity
Heard/tried before (insert name of Judge):
The Honourable Mr Justice Hickinbottom
Birmingham CJC Ct 17
Nature of hearing
Partly rolled up application for judicial review of the decision of the Defendant Council to
loan the First Interested Party £14.4m
Date of judgment:
30 June 2014
Results of hearing (attach copy of order):
All applications refused.
Application for permission to appeal to the CA was made by the Claimant and was refused.
Reasons for decision (to be completed by the Judge):
The Claimants cannot seek permission to appeal in respect of those grounds for which
refused permission to proceed. They must go to the Court of Appeal on those grounds, if
they wish to pursue them,
In respect of the grounds upon which they obtained permission, but had the substantive
application refused, the Claimants contend that I erred in (1) in the exercise of my
discretion to find that the ground that the Defendant failed to take into account specified
material considerations was a ground for which the Claimants had not obtained
permission,(2) making the findings of fact I made, and (3) the law, and in particular the
application of the market economy operator test for the purposes of State aid.
The grounds are very long; but I can deal with them relatively briefly.
As to (1), not only was this decision a case management decision well within my discretion
to make, in the event I found that the ground was in fact unarguable. In those
circumstances, granting permission to appeal would clearly be inappropriate.
As to (2), the Claimants contend that I made "numerous and serious errors of fact". A
judge does not err simply because he does not draw factual conclusions which one party
urges upon him. As I made clear in the judgment (at [30]), I did not accept the picture
which the Claimants sought to paint. I set out my factual conclusions, and the evidence
upon which they were based. The Claimants' real complaint is that my findings of fact is
were a ainst the weight of evidence; but that is not the same thin as makin findin s
without any evidential basis. I do not accept that I was not entitled to make the factual
findings I did make, on the basis of the evidence before me; and I do not consider there is
a realistic possibility that the Claimants would persuade the Court of Appeal that I was not
entitled to make any of the material findings I did make.
As to (3), the law as to State aid so far as relevant to this claim was and is uncontroversial.
do not accept that I failed to take into account material European cases or guidance, or
that I misunderstood them or gave undue weight to any of them. The question I had to
answer was a simple one: would any rational private investor in the same circumstances
as the Council have entered into the loan transaction on the same terms as the Council in
fact entered into. For the reasons I set out, in my judgment, the answer to that question
was "Yes". Despite the length of the grounds of appeal (all of which I have considered
carefully), I do not consider there is a realistic possibility of the Claimant persuading the
Court of Appeal that I erred in approach or that I was not entitled to draw that conclusion.
Even if the grounds are unarguable, the Claimants contend that there are other compelling
grounds for granting permission, because this case is novel in terms of the private market
operator test. However, the Claimants do not suggest that the legal principles are in any
material way controversial, and there is thus no purpose in the Court of Appeal
considering the case if an appeal is unarguable. Indeed, the decision under challenge was
made in January 2013; and, given the adverse effect of the delay to the public interest as
well as the private interests of many, it is in everyone's interests (including th~s~of the
Claimants and SISU) not to prolong matters.
For those reasons, I refuse permission to appeal.
Judge's signature:
mss-' ~i~^~=-~~~ '~
Note to the Applicant:
When completed this form should be
lodged in the Civil Appeals Office on a
to appeal
18 July 2014 renewed application for leave
or when setting down an appeal