Burning Question

The recent case of Sullivan v Bristol Film Studios Ltd (2012) saw the Court of Appeal dismiss an appeal against a decision to strike out a claim brought by a litigant in person for copyright, moral rights and performers' rights infringement.

The claim arose as a result of a joint venture between the parties in which the claimant, a music artist, collaborated with the defendant film company in the production of a music video. A video was recorded in which the claimant featured and was published by the defendant on YouTube for a five-day period until it was removed at the claimant's request. The musician's claim centered on whether the defendant was authorised to upload the video without the claimant's consent, with damages based on the resultant consequences. The claimant issued proceedings claiming £800,000 damages and the claim was subsequently allocated to the multi-track.

In the course of proceedings, the defendant made an application to strike out the artist's claim form and particulars of claim. In considering the strike out the judge calculated the maximum damages that could possibly be awarded to the claimant and assessed the value of the claim at £50 on the basis that no more than 50 members of the public appeared to have viewed the video, thus rendering any damage to the claimant's reputation and commercial prospects negligible. The minimal amount of damages available to the claimant, combined with the potential cost of proceedings, resulted in the judge finding in favour of the defendant and allowing the strike out application. At appeal, even on the assumption that the claimant had a real prospect of success, the Court of Appeal agreed with the judge at first instance that it would be a disproportionate use of the court's resources to allow a claim with the potential for the recovery of so little money to be pursued. It was held that even if liability was established, the costs of fighting the claim were out of all proportion to the modest amount of damages that the claimant was likely to recover.

At first instance, both the Court of Appeal and the judge had relied on the earlier decision of Jameel v Dow Jones & Co Inc (2005) to support their findings, which related to defamation in respect of an article posted on a website in the United States but available to subscribers in England. Here, the claim was also dismissed as the court held that "it is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it". The case placed particular emphasis on ensuring that "judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice". The Court of Appeal elaborated that the most important question ought to be whether, in any particular case, there is a proportionate procedure by which the merits of the claim can be investigated. It was held that only if there is none would it be right to strike out the case as an abuse of process.

In future, judges faced with an application to strike out a claim because it is not worth enough to justify the use of the court's resources should consider whether there is an alternative means by which the claim can be adjudicated without disproportionate expenditure. This may involve transferring the matter to a more appropriate court or reallocating it to a different track where permitted by the Civil Procedure Rules. In this instance, the Court of Appeal suggested that a preferable solution would have been for a small claim for copyright infringement to have been allocated to the small claims track in the local county court. It must be emphasised that the disproportion justifying the strike out of a claim is not merely between the likely amount of damages recoverable (if successful) and the litigation costs of the parties. It includes consideration of the extent to which judicial and court resources would be taken up by the proceedings.

While certainly not the sole or primary consideration of the courts, the financial cost of bringing a case to court is a relevant factor in assessing the potential outcome of a claim. The court has a duty to act in accordance with the Overriding Objective and to consider at the earliest opportunity the most efficient, cost effective, proportionate and fair way of resolving the dispute. In addressing this balancing act between safeguarding justice for all, including those with small claims, versus a disproportionate use of the court's resources, the Court of Appeal has clearly demonstrated that justice cannot be reduced to financial cost alone and that a strike out of a case in circumstances such as these must only be employed where no other proportionate procedure exists.

This decision reinforces the importance of a party accurately and realistically assessing the level of recoverable damages before issuing proceedings. The exaggerated damages estimate submitted by the claimant in Sullivan v Bristol Film Studios Ltd illustrates how a party can be left unable to recover any losses at all if litigation is commenced without due consideration of the proportionality of its actions.

Joanne Elieli is a first-year trainee at Edwards Wildman Palmer.