Baigent and Leigh v Random House Group Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PETER SMITH,MR. JUSTICE PETER SMITH |
| Judgment Date | 03 May 2006 |
| Neutral Citation | [2006] EWHC 1131 (Ch),[2006] EWHC 719 (Ch) |
| Docket Number | Case No: HC04C03092 |
| Court | Chancery Division |
| Date | 03 May 2006 |
[2006] EWHC 1131 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Mr. Justice Peter Smith
(1) Random House
(2) “The Lawyer”
MR. G. TRITTON (instructed by Orchards Brayton) appeared on behalf of the Claimant.
MR. J. BALDWIN QC and MR. J. ABRAHAMS (instructed by Arnold & Porter) appeared on behalf of the First Defendant.
MR. G. SHAW QC and MR. D. GLENN (instructed by Davenport Lyons) appeared on behalf of the Second Defendant.
In October of last year, the court issued a new Practice Direction dealing with draft judgments. Until last year, and the Practice Direction, the rule was generally that the parties did not see a judgment in draft until an hour before it was handed down. The lawyers saw it in draft but were unable to take any instructions from their clients on any such judgments.
In a lot of cases, that of course, makes very little difference. However in some cases it can be significant. In this Division there are often actions which require complicated orders, and in reality it does pose a potential unfairness that a client is unaware of the result of what might be a long and detailed case only minutes before the judgment is handed down.
The court was mindful of that, and the court set up a working party, on which I was a member, under the auspices of the current Master of the Rolls to investigate whether that could be changed. That led to the Practice Direction which enabled lawyers to discuss draft judgments with their parties and any other people whom it was appropriate to discuss the draft judgment with, but on terms that they agreed to keep the judgment confidential, accept that it was still a draft judgment and was not effective until pronounced, and – of particular importance – to take no step on such draft judgment before the judgment became a final judgment. The latter is, of course, particularly important because some judgments might have financial significance.
Before the Practice Direction was promulgated, I had on occasions permitted release of draft judgments or similar items, but on one occasion I found there was a possibility that a client, having seen the draft judgment, had tried to take steps before the judgment was pronounced to frustrate the effect of the judgment.
All of this only works if people honour the requirement of the Practice Direction, that is to say, keep it to themselves. The Practice Direction makes it quite clear that any breach may be regarded as a contempt of court.
Shortly before I delivered judgment in this case, on 7 th April, “The Lawyer” had a scoop. It became aware of the case. I have had explanations as to how they became aware, and I accept those explanations for today and I have not sought any further enquiry. I accept that there is an argument that The Lawyer has not acted in contempt of court, but it is fair to say that the explanations given show that perhaps The Lawyer's journalists ought to be more familiar with the law in relation to draft judgments than they apparently were on 7 th April (ie total ignorance).
I accept that The Lawyer's holding company has acknowledged that; and I accept the apology of the journalists and The Lawyer for the publication, and I do that in the light of the fact that The Lawyer has also taken steps to train its journalists and to ensure that this kind of publication will not happen again.
The damage done was not of any significance. That might be because of the proximity of the judgment. It also might be because The Lawyer took steps to remove the entry on the website as soon as it was drawn to their attention.
For all of those reasons, I have felt it not appropriate to consider whether the matter should be taken any further. It would not be in the court's interests, and I do not believe it would further the cause of justice, given the late publication of the result.
I have also decided that it is not in the interests of justice to seek to establish the identity of the journalist's sources. In so doing, I acknowledge that journalists have a legitimate interest in publishing matters and a legitimate interest in publishing a scoop if they have it. But those two legitimate interests must not collide with clear legal principles.
I have given this judgment in the hope that it will be made public, and that journalists will appreciate in future that, unless there is a special order made, all draft judgments, as a result of the Practice Direction, are embargoed and cannot be published until the official judgment is handed down. As the Practice Direction makes clear, and as the warning on the head of the draft judgments make clear, publication of a draft judgment will be regarded as a contempt of court. Assuming that this ruling of mine is published, it will no longer be possible for journalists to be able to say they did not understand the effect of the issue of a draft judgment.
It is important that journalists take this on board and appreciate that in the future, if there is a breach which is serious —and I should say that in saying that I am not saying that The Lawyer is in breach, because I have accepted what has been said today —the consequences that might be visited upon such a publication and its journalists might well be quite severe. It is important that this mechanism —which was designed by the courts to aid the parties to litigation —is not abused, because if it is abused, the courts will have to withdraw it, and the result will be that clients will be inconvenienced. The courts may have to revert to the old practice of the clients only becoming aware of the result less than an hour before the hearing. For my part, I did not think that that was a very fair way of dealing with things, but if a privilege is given and is abused by a small number, it is generally taken away. I hope that journalists will bear this in mind in the future when they talk to their sources, who really ought to know better.
Thank you all very much.
[2006] EWHC 719 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Peter Smith
Case No: HC04C03092
Mr Jonathan Rayner James QC and Mr Andrew Norris (instructed by Orchard Brayton Graham LLP) for the Claimants
Mr John Baldwin QC and Mr James Abrahams (instructed by Arnold & Porter (UK) LLP) for the Defendant
Hearing dates: 27th, 28th February, 7th, 8th, 9th, 10th, 13th, 14th, 15th, 17th and 20th March 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INDEX
A SETTING THE SCENE
Introduction
The Claimants
Writing and Publication of HBHG
The Mystery
B HOLY BLOOD HOLY GRAIL
Analysis of HBHG
A Central Theme
C DAN BROWN AND THE DA VINCI CODE
Dan Brown
Researching and writing DVC
Analysis of DVC
D THE CLAIM
Complaints by Claimants
Proceedings
Defendants Seek Clarification
Lewison J Order
Changes in Pleadings
E CENTRAL THEME
Changes
Significance of Central Theme
Treatment of Central Theme
F DEFENDANTS STANCE
Defence
The VSS
G LEGAL MATTERS
Outline
Sawkins
Copying a Substantial Part of HBHG
IPC Media
Green v Broadcasting Corporation
Authorities in Non Textual Infringement Cases
Ravenscroft
Designers Guild
H APPLICATIONS OF LEGAL PRINCIPLES TO THE FACTS
The Defendants Contentions
The Synopsis
Use of Books in Writing The Synopsis
Criticism of Dan Brown on Books Available when Synopsis written
Absence of Blythe Brown from the Trial
Use of HBHG by Blythe Brown/Dan Brown
I THE CENTRAL THEMES AND ANALYSIS
General Observations
Non Protection for Ideas and Facts alone
Baigent on Central Themes
Destruction of Baigent's Evidence
Change of Course by the Claimants
Claimants Closing on Central Themes
Claimants Difficulties of Formulation
J CONCLUSION ON CENTRAL THEMES
Reason for rejecting Central Themes
The Task of Analysis
Central Themes, What are they?
Natural Chronological Order
False Creation
Conclusion on Rejection of Central Themes
K INDIVIDUAL POINTS ON CENTRAL THEMES
Use of HBHG
Central Theme 1
Central Theme 2
Central Theme 3
Central Theme 4
Central Theme 5
Central Theme 6
Central Theme 7
Central Theme 8
Central Theme 9
Central Theme 10
Central Theme 11
Central Theme 12
Central Theme 13
Central Theme 14
Central Theme 15
L CENTRAL THEME IN DVC
M LANGUAGE COPYING
N REFERENCES TO HBHG IN SOURCES USED BY DAN AND BLYTH BROWN
Jesus Survives
Langdon Reveals
Constantine
O WITNESSES
Mr Leigh
Mr Brown
Blythe Brown
Mr Ruben
Mr Janson-Smith
P OTHER MATTERS
Q END GAME
R THE CENTRAL THEME
Peter Smith J:
A SETTING THE SCENE
Introduction
The two Claimants Michael Baigent and Richard Leigh claim that the novel The Da Vinci Code ("DVC") is an infringement of their copyright in their book The Holy Blood and The Holy Grail ("HBHG").
The Claimants are two of the three authors of HBHG. The third author, Henry Lincoln is not a claimant and does not participate in the claim. No point is taken about his non participation. Nor is there any claim that the Claimants' title to sue in respect of their interests in that...
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