The BBC’s pound;150 million Digital Curriculum plan could be left in tatters after a judicial review is heard by the High Court next month. Leave was expected to be granted for the review shortly after TES Online went to press. Eighteen software companies including RM, Topologika, New Media and Crocodile Clips, have banded together to launch the action. The companies have taken the drastic action because they fear the BBC’s plans to offer free resources to schools will destroy the market for educational software in Britain.

The firms’ lawyer Andy Robson, said they contended that the BBC had unlawfully gone outside its charter before seeking approval from the Department of Culture, Media and Sport (DCMS) by spending about pound;5.5 million and some pound;525,000 a month on its plans. “That is not testing, it’s a prelude to launching,” he said.

Further, the BBC had failed to seek the European Commission approval a state broadcaster needed before launching such a service, according to Robson.

The Department for Education and Skills (DFES) had been targeted for its refusal to make public a report on the level of electronic learning credits needed to protect the existing commercial market after the BBC’s free service was launched.

The DFES has allocated pound;50 million for the credits scheme that will let schools buy software and online resources from commercial providers. The credits are intended to negate industry fears of the effect the BBC’s Digital Curriculum will have on their market.

They are part of the Government’s Curriculum Online initiative, which dovetails with the BBC’s Digital Curriculum and would be severely disrupted if the judicial review goes against the broadcaster. Robson was very confident of winning a review from the High Court’s administrative division. “The proper procedures have not been followed. The BBC has spent far too much money and acted unlawfully,” said Robson.

The BBC submitted its plans to provide online learning materials for every school subject over five years to the DCMS late last month. A public consultation will run until July 5.

Culture Secretary Tessa Jowell will then make a decision, although a judicial review could delay this.

The 18 companies have written to the DCMS to make an initial protest against the BBC’s plans before making a formal submission.

A spokeswoman said the BBC was “very disappointed” by the legal challenge, because it had gone to “extraordinary lengths” to consult with the industry. She said the action would be “vigorously defended”.

A DFES spokesman would not comment on the legal action.

In a separate action the Digital Learning Alliance has been formed to oppose the BBC’s plans. Its 18 members include Granada Learning, Pearson, RM, Oxford University Press, HarperCollins (part of News International, owners of The TES), the British Educational Suppliers Association (BESA) and the Publishers’ Association.

Dominic Savage, co-chair of the alliance and BESA director-general, said one criterion used to assess the BBC’s plans was whether they differed substantially from what was already commercially available. The alliance believed they did not.

Alliance members were also aggrieved that the BBC had promised, but failed, to lodge with the DCMS a number of points the industry opposed when talks ended in January. The companies have rejected the BBC’s claims that its proposals will benefit the industry. Steve Bolingbroke, director of EM Learning, said the BBC’s plan to commission materials for 50 per cent of each subject would result in cherry-picking. Andrew Hall, of Glasgow-based software publisher Crocodile Clips, said it was already clear the Digital Curriculum would have a very negative effect on the market regardless of any “protection”.

The BBC included a market assessment of its plans prepared by PricewaterhouseCoopers (PWC) with its submission to the DCMS. The report stated that there were factors “likely to prevent the BBC developing market power” and prevent it from eliminating competition. Hall attacked the document, claiming it was “biased”, and said his company would complain to PWC about its content. Last month, the Policy Studies Institute found that the BBC had severely cut its schools television output as it prepared to focus on producing online resources. The BBC Digital Curriculum proposal and annexes can be read at www.culture.gov.ukcreativedigital_curriculum.html