England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice
		16 May 2018

MISS REED QC:

1. This is an application for permission to appeal by the defendant, Mr. Balogun against the refusal of Master Price to set aside summary judgment against him in a claim brought by Phonographic Performance Ltd, "PPL" for infringement of copyright. I have, in effect, heard all the parties wish to say on the appeal.
2. The claimant issued its claim on 10 February 2017 claiming that the defendant had played sound recording at his restaurant known as, "Mama Africa" which infringed its copyright in relation to two songs. An injunction was sought although the Particulars of Claim were later amended to plead a claim for damages.
3. Mr. Balogun acting in person filed a defence stating that he had no idea about the claim and denied playing any of the songs. Master Price gave directions in the matter, including directing consideration of a summary judgment application under CPR 24 which the claimant ultimately brought.
4. The claimant attempted to serve the application for summary judgment on the defendant but it was returned by Royal Mail and so, on 1 August 2017, Mr.  Perlmutter, a partner in the firm of Hamlins who act for the claimant attended the restaurant and handed the application and supporting documents in an envelope to an employee who identified the defendant as the owner.
5. The defendant did not attend the summary judgment hearing on 20 September 2017. In fact, he was on that day attending another hearing at Barnet County Court concerning family proceedings. The order was served on him the following day and it seems he may have contacted the court in October shortly afterwards, but it was not until enforcement proceedings were taken on 3 November, that the defendant brought an application to set aside judgment the next day which came before Master Price on 20 November 2017. Master Price declined to set aside the order for summary judgment.
6. It is clear from the judgment of Master Price that he approached the question of whether he should set aside judgment on the basis of the criteria which are set out in CPR 39.3(5) which reads:

"Where an application is made under para.(2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant-

(a) has acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b) had good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial."

7. It is clear that provision applies to trials and not applications for summary judgment. I will come onto the arguments about whether that approach was correct or not. The Master concluded that the defendant had not acted promptly and he doubted the credibility of the defendant's explanation that he had difficulty with the post. He considered that he defendant did not have a good explanation for not attending the hearing on 20 September as he had notice of it. Finally, the Master considered that the defendant did not have a defence to the claim. He said:

"The defendant says that the events of which complaint is being made at his premises were essentially private parties at which DJs were employed and he was not in a position to stipulate in relation to what music was played. As it seems to me, that is a risk he took and that, in fact, by reason of allowing these events to take place on his premises he, in effect, is authorising what took place in relation to the playing of music and that music has proven to be played in infringement of the claimant's rights."

8. The grounds of appeal assert that the defendant was not aware of any proceedings against him (which is supported by various subsidiary points), that the defendant acted promptly when he became aware of the judgment and applied to set it aside and that there was a real prospect of success for his defence.
9. The argument on this application for permission to appeal before me has been put in a somewhat different way by Mr. Khan who appeared for Mr. Balogun. He argued first of all that Master Price' approach to the principles applicable to setting aside an order for summary judgment obtained in the absence of a party was wrong, in that he had applied the test for setting aside judgment after a trial, which was not the right approach. Secondly, the defence had real prospects of success because the defendant had authorised the playing of music in the restaurant, but he had not authorised the infringement of copyright. He had no control over whether independent DJ's played music infringing the copyright. He also made a third submission that there were other reasons why this matter ought to go to trial, including the fact that it was inappropriate to conduct a mini trial at the summary judgment stage.
10. I am conscious that I am dealing with an application for permission to appeal against the refusal of Master Price to set aside the order for summary judgment he had made. That is a matter of discretion for the court and, therefore I have to be persuaded that either he has erred in law, that the decision is outside the range of reasonable disagreement and therefore is manifestly wrong or there was a serious procedural or other irregularity that renders the decision unjust.
11. I turn now to the approach to setting aside summary judgment orders. The practice direction to CPR 24 provides in para.8.1:

"If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied. (see also rule23.11)

8.2 On the hearing of an application under para.8.1 the court may make such order as it thinks fit."

12. In Tubelike Limited (In Liquidation) & Others -v- Visitjourneys.com Limited [2016] EWHC 43 (Ch), Chief Master Marsh considered this provision. As he pointed out, there is no guidance in The White Book as to how this provision should be applied and, indeed, it is not part of the rules. The reference to CPR 23.11 is not helpful in that that rule provides that a court may relist an application where a party has not turned up. He was referred to CPR 39.35 as well as the law on relief from sanctions and other provisions of the CPR where judgments can be set aside and he concluded (at para.22 of his judgment):

"I consider that the right approach for the court to adopt when considering an application to set aside judgment made under rule24 in the absence of a party is to apply by analogy the provisions of rule.39.3(5) without being a slave to the requirements of that rule. The power contained in para.8.1 of Practice Direction 24 gives an unfettered jurisdiction to the court and in exercising that power the court should have in mind the criteria in rule39.3(5) and also the provisions of the overriding objective. I am not persuaded by Ms. Helmore's submission that is should have regard to rule3.6 and therefore, the provisions for relief against sanctions contained in rule3.9. To do so, would be to heavily overload the approach the court should adopt to criteria which are foreign to it."

13. Mr. Khan has submitted that this is not the right approach to setting aside summary judgment orders because CPR 39.3(5) is directed towards a situation where the court is concerned to ensure finality after a trial. I think there is some force in this argument and it seems to me that it ought to be easier to set aside summary judgment orders in appropriate circumstances.
14. However, as Chief Master Marsh made clear in Tubelike, he was only adopting the CPR 39. 3(5) requirements as a guide and it seems to me that they ought not to be too rigidly applied in circumstances where there has not been a trial, and that the court should also take into account other rules of the CPR which provide that judgments can be set aside, for example, judgments in default under CPR 13.
15. Further, it seems to me that it is not inappropriate for a court to take into account the considerations that are set out in CPR 39. 3(5). The promptness with which a party has acted, the reasons for non-appearance and whether the party applying has real prospects of succeeding if the matter were to get to trial are all relevant considerations. There may be others, including whether there are other reasons why the matter ought to be tried.
16. I agree with Master Marsh, and nobody has urged me to do otherwise, that the learning on relief from sanctions is not helpful in this context.
17. Master Price had the Tubelike case before him and he did use the conditions in CPR 39. 3(5) as a guide but it is hard to say that those considerations were not relevant ones for the court to take into account in exercising its jurisdiction, provided that they were not applied with undue rigidity. Therefore, attractively as the submission was put, I do not consider that Master Price' decision can be criticised as wrong on the basis of the approach he took to the exercise of his discretion.
18. Therefore, I turn to the question is whether there are real prospects of arguing that Master Price was wrong on other grounds to exercise his discretion in the way that he did. First of all, it is said that he was wrong to say that the defendant did not act promptly. It is clear that the order was served on the defendant the day after it was made. It also appears that he did contact the court in October, but he took no steps until enforcement was attempted in November. While another judge may have taken a different view as to whether this was sufficiently prompt or not, bearing in mind that the defendant was acting in person I do not consider that Master Price can be criticised for finding that the application had not been made promptly. It was a view he was entitled to take.
19. On the question of the reason why the defendant failed to attend the hearing, I consider that Master Price was right to conclude that the defendant had proper notice and the notes to CPR 39.3(5) in The White Book state that a mere assertion that a party was unaware of the hearing date is unlikely to be sufficient. The defendant knew of the proceedings (he filed a defence and corresponded with the claimant) and the attempts made by the claimant to bring the hearing of the summary judgment application to his attention make it unlikely that he did not know of it.
20. However, what the Master perhaps did not take sufficient notice of was that the defendant was engaged in a hearing of other proceedings on the date when the summary judgment application was heard. The defendant clearly mentioned this a couple of times to the Master and he does not mention it in his judgment. However, it is not clear to me why the defendant did not inform he court in advance that he could not attend on the date fixed for the summary judgment application.
21. I then come to the question of whether the defendant's defence to the claim has real prospects of success. It seems to me that whatever test is applied to setting aside summary judgment, that is a vitally important factor. Mr. Longstaff for the claimant submitted that as it stood, the defence filed by the defendant did not disclose a defence and that there was no application to amend it, notwithstanding Mr. Ochs in his first witness statement on behalf of the claimant in June last year pointed out the deficiencies in the defence.
22. However, it seems to me that if the test is whether the defence has real prospects at trial, then the court should take into account the fact that the defence could be amended in accordance with the rules. I have therefore approached the matter on the basis that even if the defence as presently drafted does not disclose a defence with real prospects of success, I should hear argument on the point of whether there is, in fact, a defence which discloses real prospects of success if the matter should be allowed to go to trial.
23. The claimant bases its claim on s.16 of the Copyright Designs and Patents Act, 1988 which provides as follows:
    

"(1) The owner of a copyright in a work has in accordance with the following provisions of this chapter, the exclusive right to do the following acts in the United Kingdom.

(a) to copy the work

(b) to issue copies of the work to the public,

(ba) to rent or lend the work to the public,

(c)to perform, show or play the work in public,

(d) to communicate the work to the public,

(e) to make an adaptation of the work or do any of the above in relation to an adaptation

and those acts are referred to in this part as the acts restricted by copyright.

(2) Copyright in a work is infringed by a person who without the license of the copyright owner does or authorises another to do any of the acts restricted by the copyright.

(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it-

(a) in relation to the work as a whole or any substantial part of it, and

(b) either directly or indirectly

and it is immaterial whether any intervening acts themselves infringe copyright."

The rest of the section is not relevant for these purposes.

24. Mr. Khan argues that by permitting DJ's to play music in his restaurant, the defendant does not authorise them to play music which infringes copyright. He places his arguments squarely on the decision of the House of Lords in CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] 1 AC 1013, where the House of Lords held that the production, advertising and sale by Amstrad of Hi-Fi systems with tape-to-tape facilities did not authorise those who had purchased it to infringe copyrights. In doing so, the House of Lords held that "authorised" meant to grant or purport to grant expressly or by implication the right to do the act complained of and that the defendant selling a high-speed twin tape recorder might facilitate the copying by purchasers of material in breach of copyright, but that did not authorise it.
25. Mr. Khan argued that although by allowing DJ's to perform in his restaurant, the defendant might facilitate a breach of copyright, he did not authorise it.
26. In Twentieth Century Fox Film Corporation v Newzbin Ltd [2010] EWHC 608 (Ch), Kitchin J held that in the context of s.16 of the Act, the term "authorised" meant the grant or purported grant of the right to do the act complained of, it did not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act might be expressed or implied from all the relevant circumstances.

In a case which involved an allegation of authorisation by supply these circumstances might include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constituted the means used to infringe, whether it was inevitable it would be used to infringe, the degree of control which the supplier retained and whether he had taken any steps to prevent infringement. (Paragraph 90).

27. Neither of those cases deal directly with the question before me, in the sense that they were questions of the supply of equipment. But in PPL & PRS v CGK Ltd and others [2016] EWHC 2642, Master Clark had the question before her whether the defendant, who was the person managing a nightclub, had authorised the playing of recorded music which infringed copyright within s.16. She said:

"Ms. Ormes, counsel, submitted that to succeed in showing authorisation or procuring the claimants must show that Ms. Ormes had selected and authorised specific songs to be played relying on the passage in Ciryl above. He submitted that the claimants had not shown that Ms. Ormes had approved a list of songs to be played at the Club. I agree that the evidence shows that generally, the DJs or performers (and not Ms. Ormes) selected the music to be played. However, I do not accept the submission that Ms. Ormes was not therefore authorising infringement. Just as the licenses granted by the claimants are blanket licenses permitting performance of any works within their repertoires at the licensed premises, the authorisation by the person booking a performer is to perform at the venue whatever music they select. The authorisation given in this case is analogous to that given by the defendant in Newzbin where it had no knowledge of the specific films downloaded by its members. There is no suggestion in this case that the performers themselves had licenses from the claimants or that Ms. Ormes informed them that they would need to obtain such licenses."

28. It seems to me that this analysis of the position must be correct. It is the authorisation of the playing of music in public which is the relevant act and not the authorisation of specific songs which infringe the copyright. Mr. Khan argued that this decision was at odds with the House of Lords in the Amstrad case but it seems to me that Amstrad in that case had no control over the use to which their equipment was put. The defendant, on the other hand, has complete control over the playing of music in his premises.
29. Mr. Khan also urged that this decision was at odds with principles of agency and vicarious liability. In other words, a principal can assume that his agent will act in his interest and if he indulges in a frolic of his own, the principal will not be liable. However, I do not quite understand how that principle applies in this case or, indeed, renders the decision of Master Clark wrong. The authority which the defendant granted to DJs was to play music in his restaurant. That was the nature of the authority and the DJ did not exceed that.
30. Mr. Khan has also urged that this is a matter which ought to go to trial because it is quite wrong to have a mini trial at the summary judgment stage. He is, of course, correct that the court must not second guess what evidence might emerge. However, in this case, it is established as a matter of fact that the defendant did authorise recorded music to be played in his restaurant and it is not disputed that at least two of the songs played infringed copyright. The defendant's stance is that he did not authorise that infringement but, in my view, for the reasons set out above, there are no real prospects of that defence succeeding at trial.
31. In conclusion, Master Price did not have the benefit of hearing the extremely well-argued case I have heard but, in my view, permission to appeal ought to be refused in this case because the approach taken by Master Price cannot be said to be wrong and I consider that any appeal would have no real prospects of success.

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