England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr K Garnett QC: sitting as a judge of the High Court))

		Royal Courts of Justice Strand London WC2 Friday, 16th November 2001

Friday, 16th November 2001

1. LORD JUSTICE CHADWICK: This is a renewed application for permission to appeal against an order made on 25th May 2001 by Mr Kevin Garnett QC, sitting as Deputy Judge of the High Court in the Chancery Division, in copyright proceedings brought by the applicant, Allen Carr's Easyway International Ltd, against Mr Jim Trimmer, trading as Quit Easy. By that order the judge directed that the defendant, Mr Trimmer, should pay the applicant £125 by way of damages for infringement of copyright in respect of an audio tape-recording; but otherwise he dismissed the claim. The judge further ordered that the claimant should pay the defendant's costs of the action, which he assessed summarily at £28,000.
2. It has not been in dispute that the applicant is entitled to copyright in certain works relating to, and descriptive of, a method by which smokers can be assisted to stop smoking. Those works include, in particular, a manual for use in the conduct of therapy sessions. In the course of its business the applicant enters into franchise agreements under which it licenses franchisees to use its method and its manual in the conduct of such sessions. In December 1995 the applicant granted a franchise to the defendant for the counties of south and south-west Wales. The defendant received a copy of the manual in his capacity as franchisee. The franchise agreement was terminated, apparently by mutual consent, in December 1998.
3. Notwithstanding the termination of the franchise, the defendant has continued to conduct therapy sessions for smokers wishing to give up that habit. He carries on that business under the name Quit Easy. In connection with that business the defendant has made an audio tape-recording which included parts of the manual. The judge found that that tape-recording was made from the defendant's memory, acquired as a result of experience in conducting therapy sessions, originally on the basis of the manual. The manual was not, as it were, read directly onto the tape. The defendant has distributed that tape to members of the public attending his therapy sessions.
4. The judge found that to be the copying of copy right work and awarded damages for breach of copy right in the amount of £125. The judge rejected the other allegations of breach of copyright, breach of the franchise agreement, breach of confidence and passing-off, which are contained in the particulars of claim in these proceeding. He did so for reasons set out in a full judgment delivered on 24th May 2001. Put shortly, the judge held that the claim that the manual contained confidential information was hopeless. He said this:

"...but the manual ... contains a mass of material that is both what I would regard as trivial - for example, how to maintain a proper clinic and how to deal with people who ring up on the telephone, and so on - but also which is clearly in the public domain in the sense that the Allen Carr method itself is clearly in the public domain."

5. He thought that there were no parts of the manual which he could identify as being the subject of confidential information; and, even if there were, the claimant had not identified them in the action.
6. Secondly, the judge held that the copy right in Mr Carr's book "The Easy Way to Stop Smoking" had not been assigned to the claimant; alternatively if there had been an effective assignment, such copying as had taken place was not copying of a substantial part of the book. So he dismissed the claim based on that infringement of copyright. As I have said, he accepted that there had been copying of the manual in the course of making the audio tape-recording; but he rejected the claim that there had been a performance in public of any substantial part of that work. That is a matter to which I shall have to return. As to the claim for passing off, the judge held in a short passage (at internal page 42 of his judgment) that the evidence was hopeless in support of that claim.
7. The proposed grounds of appeal are set out under 10 paragraphs in the Appellant's Notice, and they are supplemented by a skeleton argument which has been used in this hearing. But Mr Shipley accepts, realistically, that the only basis upon which he can press for permission to appeal in this case is that the judge was wrong in his finding that there had been no performance in public of substantial parts of the manual.
8. The first difficulty for Mr Shipley before the judge - and on this application - is that the two witnesses who were called by the applicant to establish a public performance of the contents of the manual in the course of a therapy session failed to do so. The judge dealt with the point in the passage at page 40 E-H of his judgment:

"It seems to me that although, on [the] evidence, there were passages in Mr Trimmer's sessions which correspond to passages in the manual, I have real difficulty in saying that what was performed was a substantial part of the manual. It is, in the end, for the Claimant to satisfy me that that was the case, and it is an extremely difficult task to do without a textural comparison. I may have my suspicions, particularly in the earlier stages, as to the form in which the sessions were conducted and the amount which was used, but as to the latter stages, the evidence of the two witnesses does not really seem to me to prove, on the balance of probabilities, that what was taken was a substantial part of the manual. I bear in mind that in relation to this, the manual contains ideas and so on which were known to Mr Trimmer and were common knowledge, and that probably the most important part of the manual is in the way in which those ideas are put across - that is the textural content of the manual."

9. So he expressed himself not satisfied that there had been any performance of a substantial part of the manual.
10. Mr Shipley submits that, although it may well be that his witnesses did not support a finding that there had been a performance of a substantial part of the manual at the sessions which they attended, the judge's finding that a substantial part of the manual had been copied on to the audio-tape should have led, necessarily, to a finding that there must have been a performance of a substantial part of the manual at some sessions - perhaps, at the early stages. It is important to keep in mind that the tape is not a tape of any session. It is a tape prepared by Mr Trimmer for use and distribution; although it may well be that what he put on the tape will have corresponded to what he was saying at the early sessions. The judge recognised that possibility when he referred to his suspicions as to the form in which the sessions were conducted. But suspicions are not sufficient. One has only to ask: what form of inquiry could be ordered? It would be an inquiry into what use had been made of the manual in therapy sessions, in circumstances in which there is simply no evidence that any use was made. The evidence is only that, at one stage Mr Trimmer copied material onto a tape, and that at a later stage he was not using the material which corresponded closely to that on the tape. There is no indication as to whether he ever started using that material; or (if he did) when he stopped using that material.
11. The second question is whether, even if there were a performance - in the sense that substantial portions of the manual were rehearsed in the course of individual therapy sessions or group therapy sessions - that performance was a performance in public. As to that the judge reminded himself that there was, of course, much learning as to what constituted "in public". The judge was, of course, very familiar with that learning because he is an editor of the leading text book "Copinger and Skone James on Copyright"; to which he referred in the course of his judgment. It is inconceivable, as it seems to me, that, having had his own book specifically drawn to his attention, he was not fully aware of the relevant authorities collected together and analysed in that book. He went on to say this:

"One of the guiding principles, however, is that the court should use its common sense. These were sessions conducted in very small numbers. In Mrs Bolshaw's session there was one other person, and at Mr Dicey's session I think he was the only person there. ... I think the ordinary member of the public would be very surprised to learn that what was taking place was taking place in public.

The word "in public" as used in the Act is an ordinary English word and I think applying, as I try to do, my common sense, it does not seem to me the performance which took place was a performance in public, and for that reason the copyright claim also fails."

12. It is said that the judge erred in law in reaching that conclusion. I can see no real prospect that the applicant could persuade the Court of Appeal that the judge's self-direction, prefaced as it is by an express reference to the relevant passages in the leading text book, can be described as an error of law. What has happened is that the judge has applied the law to the facts of this particular case. I find it impossible to accept that an appellate court, not having the benefit of the direct evidence which the judge had, would come to a different conclusion on the question whether there had been a performance "in public".
13. For those reasons, I am satisfied that this is a case in which there is no real prospect of success on the matters on which Mr Shipley has addressed me. He has accepted that if I cannot be persuaded on those matters, he is unlikely to persuade me on the other grounds set out in the Appellant's Notice. In particular, he has not submitted that this is a case in which the court ought to entertain an appeal on the judge's order for costs alone, if it is not to entertain an appeal on the substance. He criticises the judge's decision not to make an order under CPR 31.22(2) in relation to the confidential training manual disclosed in the course of the trial. But, to my mind, that is very much a matter for the judge's discretion having regard to the use actually made of that material and the likelihood that any future impermissible use would be made. I cannot think that this court would be persuaded to interfere with that exercise of discretion.
14. For those reasons this application is dismissed.
Order: Application dismissed.