Neutral Citation Number: [2011] EWPCC 32
Case No: CC11 P01153
IN THE PATENTS COUNTY COURT

The Rolls Building,
7 Rolls Buildings
London EC4A 1NL

Date: 21/10/2011

Before :

HIS HONOUR JUDGE BIRSS QC
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Between :

	DAVID HOFFMAN	Claimant	
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	DRUG ABUSE RESISTANCE EDUCATION (UK) LIMITED	
Defendant	

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Judgment on a Paper Application

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Judgment

His Honour Judge Birss QC : 

1.	This is an action for damages for copyright infringement.   The claimant Mr Hoffman is a photographer.   The defendant is a charity that has operated since 1993 in schools to help young people understand the dangers of substance abuse and to provide them with life skills to tackle peer pressure in this regard. 
2.	The claimant’s case is that between about 2004 and 2009 the defendant’s websites www.dareteens.co.uk and www.dare.uk.com used 19 photographs of various drugs.  The images used were, says the claimant, copies of the claimant’s copyright photographs.  The defendant did not have the claimant’s permission.  The claimant claims damages for this infringement calculated as the revenue he has lost which he estimates at £250 per photograph per year = £250 x 19 photographs x 4 years = £19,000 and then a further 50% uplift on top for the use of the photographs as thumbnails coming to a total of £28,500.   
3.	The claimant issued proceedings in November 2010 but initially the wrong defendant was named.  Although the defendant charity calls itself D.A.R.E. UK, there is also an unrelated company called DARE UK Ltd which Mr Hoffman named as the original defendant. This was sorted out in May 2011 when I ordered the claim form and Particulars of Claim to be amended and permitted the claimant to re-serve them.  
4.	The defendant acknowledged service in July 2011, ticking the box indicating that they wished to defend the case.   On 20th September 2011 the defendant wrote a letter to the court which stands as the Defence.   The letter explains that the charity has had to trim its overheads in recent times and is very concerned about rising costs.  The defence is lodged without the assistance of legal advice.   The Defence explains that at the time of the alleged infringement the defendant employed a firm to produce a website for the charity.  The firm found a Government sponsored website called “Talk to FRANK”. They understood that the site was covered by crown copyright and understood that the text and images could be used. That was the defendant’s understanding when the claimant first made his claim in 2007.  
5.	The defendant states that the Department of Health acknowledged the site was not clear and agreed to pursue the matter on behalf of the defendant and numerous other charities who had also been misled.  The defendant immediately removed the images from the site.   The defendant was unaware until these proceedings were served on them that the DoH had not been able to agree a settlement with Mr Hoffman.  They made an offer to him which he did not accept.  
6.	The defendant’s position is that they have not paid Mr Hoffman because “we had not intentionally or knowingly infringed his copyright” and “the Department of Health and their misleading web site were the cause of any infringement and not ourselves”.  The defendant then makes some further submissions regarding the value of Mr Hoffman’s claim, arguing it is much too high.  The defendant concludes, stating that any infringement of copyright is the responsibility of the Department of Health and not the defendant.  
7.	On 21st October 2011 the court received a Request for Judgment form filled in by Mr Hoffman.  It seeks immediate judgment in the sum of £40,851.26.   This consists of the principal sum above plus interest and a £360 court fee.   The Request for Judgment form is only an appropriate procedure to use if the defendant is in default of defence or had admitted that all the money claimed is owed.   Neither condition is satisfied and so there is no doubt that I should not give judgment under this procedure. 
8.	However the matter having now come to the court’s attention, this seems to me that it does neither side any favours for this case to continue in this fashion.  Neither side has the benefit of legal representation, no doubt having regard to the cost and to the sums at stake.   It seems to me that this case may be suitable for all questions of liability and the quantum of damages to be decided together, in one go, and on paper.  In other words it may be a case to which CPR Part 63 r 63.23(3) applies.   The court may determine a claim on paper where all parties consent.  Bearing in mind the nature of the parties to this case and the issues in the action, that may be the most expeditious and proportionate way to proceed.
9.	There is no dispute that the defendant’s website did indeed carry the claimant’s photographs without his consent.  It seems to me that this would inevitably have involved the defendant in making copies of the photographs in the server hosting the website and I note that the defendant does not deny that it has committed acts under s16 of the Copyright Designs and Patents Act 1988.  The defendant contends that the infringement was the responsibility of the Department of Health and not the defendant, although as matters stand before me this argument appears to be an argument that the Department of Health may also be jointly liable as well rather than one which would absolve the defendant of liability.  It may be that the real issue between the parties is only the, by no means trivial, question of what the correct level of damages should be.
10.	Accordingly the order I will make is an order dismissing the claimant’s Request for Judgment, but directing that the parties make written submissions to the court within 28 days, setting out their proposals for the orderly conduct of this case.   I will then give directions, taking the parties submissions into account.  The parties should indicate in their submissions at least the following: 
i)	whether they agree to the case being dealt with on paper, and without a hearing;
ii)	what their reaction is to my suggestion that the questions of liability and the amount of any damages be decided together in one go;
iii)	whether they will wish to file any further evidence in the case and if so what the nature of that evidence would be;
iv)	whether there are any other steps in these proceedings which should be taken and if so, what?
11.	The parties should also make any further submissions they wish to make as to how the case should be resolved.   
12.	Request for Judgment forms are not served on the defendant and so this matter has been dealt with without notice to the defendant.   However in the circumstances it appears to me to be appropriate to make an order now without service of the application pursuant to CPR Part 23 r23.9 and on the basis that the Order will contain a statement of the Defendant’s right to make an application to set aside or vary the order under CPR Part 23 rule 23.10.