EWHC 2364 (Ch) is actually a trilogy of actions on which Mr Justice Birss ruled in the Chancery Division, England and Wales, last week. In all three he was required to determine issues in relation to damages claims made by Lilley against against three publishers for copyright infringement.
Back in the 1990s, Victor Lilley wrote articles for various publications, for which he was paid a fee. Some time after their publication in traditional print format, copies of these articles appeared on the internet, without his permission. Lilley maintained that making his articles available on the internet infringed his copyright. However, he claimed some extraordinary sums of damages: £27 million from Aspermont, £117 million from Euromoney and £450 million from CIMA. The claims were heard together.
In these proceedings Birss J had to determine (i) whether he should have recused himself due to apparent bias; (ii) whether the claims against CIMA and Aspermont should be adjourned on the basis that Lilley could not deal with all the claims together; (iii) whether to strike out Lilley's claims against them; (iv) whether the damages claim was indeed ludicrous; (v) whether Euromoney should be compelled to provide further information and (vi) whether a civil restraint order (CRO) should be made against Lilley.
Mr Justice Birss held as follows:
Lilley had objected to the listing arrangements. However, the way his objections were dealt with would not lead a fair minded and informed observer to conclude that there was any real possibility that the judge making those directions was biased against him. What's more, the fact that judges reached the same or similar conclusions to questions they themselves had decided in an earlier case would not lead the fair minded and informed observer to think that a judge in that case was or would be biased.
By far the most proportionate, cost-effective and fair way to resolve the various issues arising in such closely related cases was to hear the applications together. It was important that the parties were on an equal footing, but Lilley's difficulties in preparing for the hearing were of his own making.
Striking out of Lilley's claims
Calculation of damages
Lilley's damages would be calculated on an objective, willing licensor/willing licensee basis, at a sum which properly compensated Lilley for the infringements. This figure would be compensatory, not punitive in nature, looking at actual, commercially realistic rates for the appearance of articles on the internet.
The fair thing to do was to give Lilley one last chance to advance a proper case and set out a realistic claim relating to the quantum of damages.
Request for information
Lilley's request for further information was 22 pages long, argumentative and unclear, and Euromoney had gone to considerable lengths and cost to explain its position to him. Since requiring the company to set out yet further explanation of its position would achieve nothing, the request would be refused.
Lilley's recusal application had been dismissed as totally without merit, as had his applications for adjournment and his request for further information. The very least that the court could do in such circumstances was to make a limited CRO.
In deciding whether a litigant had persistently issued claims or made applications which were totally without merit for the purposes of an extended CRO, the court should consider his conduct as a whole, so far as it could. All aspects of the litigant's conduct could be relevant, and not just his conduct in the proceedings in question. Since Lilley had shown an irrational refusal to take no for an answer on numerous occasions, there were ample grounds for concluding that he had persistently issued claims or made applications which were totally without merit. An extended CRO would be made in each of the three cases before the court. This has the effect that, for two years, Lilley would be restrained from issuing claims or making applications in the High Court and the County Court without first obtaining permission.
Cases like this are always sad. A claimant who knows or believes that his copyright has been infringed will often be ablaze with anger and resentment, especially when it appears that the infringer is well-resourced and has profited from the infringement. However, it is important to retain a sense of proportion and that is what Birss J has done.
This case reminds one of a recent Canadian case, namely that of Leuthold v. Canadian Broadcasting Corporation (“CBC”). In the Canadian case, a photographer’s stills were reused inadvertently in network broadcasts by the CBC six times. She had initially been paid US $2,500. She refused an offer to settle of US $37,500. She was awarded about US $19,200 at trial. She had asked for about $22,000,000 based upon an astonishing theory that “each Broadcasting Distribution Undertaking or BDU (such as a cable companies or satellite distribution system) and each local affiliate was also an infringer with whom the CBC was jointly and severally liable”. There are hundreds of such BDUs. Not surprisingly, both the Federal Court and the Federal Court of Appeal said no. Under Canadian costs rules, she is liable for double costs to the CBC because she got less after trial than she was offered by way of settlement. Unlike your English case, Ms. Leuthold was, indeed, represented by counsel. I’ve written about this on my blog, most recently here: http://excesscopyright.blogspot.ca/2014/07/leuthold-loses-longshot-appeals-in-her.html . There are links to the judgments in my blog.
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