Bloomsbury Publishing Plc and Another v Newsgroup Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | The Vice-Chancellor,Mr Justice Laddie |
| Judgment Date | 23 May 2003 |
| Neutral Citation | [2003] EWHC 1087 (Ch),[2003] EWHC 1205 (Ch) |
| Docket Number | Case No: Unknown,Case No: HC 03 C01725 |
| Court | Chancery Division |
| Date | 23 May 2003 |
[2003] EWHC 1087 Ch
The Honourable Mr Justice Laddie
Case No: Unknown
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr D Kitchen QC and Mr A Speck appeared for the Claimants
Mr R Spearman QC appeared for Newsgroup Newspapers
Mr Justice Laddie:
I have before me today an application by Bloomsbury Publishing plc ("Bloomsbury") and Miss JK Rowling in which an unusual order is sought. Miss Rowling is, of course, the well-known author of the Harry Potter books. Publication of the fifth book in that series, which bears the title Harry Potter and the Order of the Phoenix is due on or about 21 June 2003. It is no doubt eagerly awaited by a very large readership. If the success of the first four books in the series is anything to go by, it will be an enormous commercial success, not just in this country, but elsewhere.
Bloomsbury is the publisher of the book and it has made arrangements for copies of the book to be printed under conditions of extreme secrecy and security. The potential loss, both to Bloomsbury and Miss Rowling, if copies of the book were to slip out of Bloomsbury's control in advance of the official launch date, are obvious.
The first defendant to the current application is Newsgroup Newspapers Limited ("Newsgroup"). It is the proprietor of The Sun daily newspaper. On 6 May that newspaper carried a front page scoop. Under the banner heading "Out of this World Exclusive" it carried a photograph of the inside cover and frontispiece of Harry Potter and the Order of the Phoenix. There is no reason to doubt that this is a photograph of an authentic copy of the book obtained illicitly from Bloomsbury or the printing works. Underneath the photograph there is a box with the words "New Potter Book found, secret blockbuster dumped in a field". In smaller print above that are the words "in safe hands two copies of JK Rowling's new Harry Potter novel, not due out until June 21 st, at the Sun's London Headquarters last night".
Pages six and seven of the paper contain a two-page spread with a story relating to the alleged discovery of these two copies in a field. They also carry a photograph showing one of the Sun's employees placing the proof in a safe on which the words "The Sun" are marked.
The publication of this article resulted in the claimants immediately contacting The Sun to raise their concerns. It said it had been approached by a man called Keith Webb who claimed to have found these two extremely valuable documents lying in a field near the printing works where Harry Potter and the Order of the Phoenix was being produced. Correspondence ensued between the claimants and The Sun. The question of what relief, if any, should be ordered against Newsgroup is not a matter with which this judgment is concerned.
It appears that the two copies of Harry Potter and the Order of the Phoenix, currently held by The Sun and due shortly to be handed over to the claimants, are not the only copies of this book which have escaped the security net created by Bloomsbury. It appears that both The Sun, the Daily Mail and The Mirror have received phone calls from someone offering for sale chapters of the new and unpublished book. He is asking for £25,000 for each chapter. The caller is clearly not anxious to divulge his name.
To the best of the claimants' knowledge and belief none of the three newspapers have taken the bait, but it appears to be likely that there is indeed at least a third copy of the book which has been extracted, in one way or another, (probably by theft) from the print-works. The person currently holding that copy is more than willing to sell it, or copies of it. It may be that the person offering to sell chapters of the book is not the same person as has extracted the copy from the printing works. There may be a number of people involved in this activity. For the purpose of this judgment I will refer to him in the singular.
As I have said, the person holding the third copy, besides offering chapters for sale, has made it clear that he is anxious not to be identified. The telephone offers to the newspapers have been made from a telephone box and all attempts so far to illicit personal details of the vendor have met with a swift, sharp and knowing rebuttal.
Had the identity of the vendor and any of his accomplices being known, the court would, without hesitation, grant the without notice relief which the claimants seek not only to preserve confidentiality, but also to prevent infringement of copyright and the conversion of stolen property. Further, such an injunction would be effective not just against identified defendants, but also against anybody else who is informed of the terms of the injunction and who assists or tries to assist (directly or indirectly) the addressee to breach its terms. Cases such as Acrow (Automation) Ltd v Rex Chainbelt Inc [1971] 3 All ER 1175 illustrate the effectiveness of an injunction against third parties who assist a defendant to commit contempt.
The problem here is that the identity of the vendor and any accomplices is not known. Because of that, at first blush, it appears that it is not possible for the claimants to obtain an effective relief against a person who, quite clearly, is engaged in a course of activity which, on the evidence before the court, is a breach of the claimants' rights and which, from the very manner in which he is trying to conduct his trade, is known to him to be a breach of the claimants' rights. The result is that Mr Kitchin QC, who appears on this application on behalf of the claimants, asks for the injunctive relief against a defendant referred to as follows:
"The person (or persons) who have offered the publishers of the Sun, the Daily Mail and the Daily Mirror newspapers a copy of the book Harry Potter and the Order of the Phoenix by JK Rowling."
This is effectively a "John Doe" order made against a person whose identity cannot be described by the usual methods adopted for describing individuals, that is to say by name.
Mr Kitchin has drawn to my attention a number of cases in which the court have touched upon the question of whether it is possible to obtain relief against a person or persons who cannot be identified by name. Amongst other cases, he has drawn my attention to two quite recent decisions. The first is EMI Records v Kudhail [1985] FSR 36 in which the plaintiff, EMI Records, sought injunctive relief on an ex parte application against a Mr Kudhail and other unnamed persons in respect of alleged infringements of its copyright in certain sound recordings and for passing off. The product being pursued in that action was counterfeit, that is to say it was dressed up to look like the original material of the plaintiff. Mr Kudhail was a market trader.
Although Mr Kudhail's identity was known, the plaintiff did not know the identity of the other parties engaged in distributing the counterfeit recordings. The Court of Appeal considered whether or not it was appropriate in those circumstances to make an order not just against Mr Kudhail but also against the others involved in the dissemination of the counterfeit products even though their numbers and identities were not known. It thought that it was appropriate to do so, at least for the short period during which an ex parte injunction was to be in place. It made Mr Kudhail a defendant in a representative capacity, it being said by the Court of Appeal that "there was sufficient commercial interaction between counterfeiters to treat them all as a group".
The result was that the knowledge of the identity of one individual defendant enabled the Court of Appeal to fashion an order which could be effective against others and, in practice, effective against others who had very little if any connection with Mr Kudhail. For example it would be effective against other market traders. It appears that the other members of the "group" were unknown as to names and numbers.
The other case which was drawn to my attention was Tony Blain Pty Ltd v Splain [1994] FSR 497 a decision of the High Court of New Zealand. Insofar as material, the head note reads as follows:
"The plaintiff was the exclusive authorised merchandiser for the musical group Metallica and also for the singer, Paul McCartney. The plaintiff's activities involved inter alia the manufacturing and selling of badges, T-shirts and other memorabilia at concert locations. The second and third defendants were a group of persons unknown who set up stalls outside the same concert locations and sold unauthorised memorabilia, the same type as the plaintiff. The first defendant was a person whose identity and activities were known to the plaintiff.
The Defendants set up stalls that could be quickly dismantled, such that detection and prevention of their activities by the plaintiff was difficult. The quality of the defendant's goods was lower and hence, it was said, there was a risk of damage to the plaintiff's goodwill. The plaintiff sought Anton Piller relief against the defendants, despite the fact that their names and precise activities were known.
Held, granting the order sought:
(1) The plaintiff had established a proprietary right to sell authorised memorabilia and the court would act to protect that right. …;
(2) Because of the low quality of the defendants' goods, it was likely that the defendants' activities would damage the goodwill associated with the musical group or singer concerned;
(3)
The court was satisfied it would be near impossible to ascertain the names and...
To continue reading
Request your trial
-
Bianca Cameron (Claimant/Appellant) v Naveed Hussain (First Defendant) Liverpool Victoria Insurance Company Ltd (Second Defendant/Respondent)
...['MIB']. 13 The judge took the view that: "23. Applying Bloomsbury Publishing Group v News Group Newspapers [ [2003] EWHC 1206 (Ch), [2003] 1 WLR 1633] and Civil Procedure Rules 7APD4.1(3) and CPR16 PD 2.6(a), in a claim for damages arising out of a road traffic accident, the claimant sho......
-
CMOC Sales & Marketing Ltd v Person Unknown and 30 others
...by Sir Andrew Morritt VC in the case of Bloomsbury Publishing Group Limited and JK Rowling v News Group Newspapers Ltd and Others [2003] 1 W.L.R. 1633. At paragraph 21 he says that: “the description used must be sufficiently certain as to identify both those who are included and those who ......
-
Pippa Middleton James Matthews v Person Unknown or Persons Unknown (Defendant(s)
...criterion has been met. 18 In that connection, Mr Wolanksi took me to Bloomsbury Publishing Group plc v New Group Newspapers Ltd [2003] 1 WLR 1633. I am satisfied that it is proper in a case such as this to issue an application, and make an order, against person(s) unknown. They are describ......
-
Novartis Pharmaceuticals UK Ltd &Ors v Stop Huntingdon Animal Cruelty and Others
...be identified by name should be brought against "persons unknown". 16 In Bloomsbury Publishing group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633 at 21 et seq, a group identified only as "person or persons unknown" formed the second defendant to the action. That group was made up of th......
-
Responding to payment fraud by seeking urgent injunctive relief: cross-border recovery action, the CMOC case and Dentons' Global Injunctions Toolkit
...example, the judgment of Sir Andrew Morritt VC in Bloomsbury Publishing Group Limited & J.K. Rowling v. News Group Newspapers Limited [2003] 1 WLR 1633, a case concerning restraint of the early publication of a Harry Potter The Judge noted: "… there is a strong reason for extending the prin......
-
Responding To Payment Fraud By Seeking Urgent Injunctive Relief: Cross-Border Recovery Action, The CMOC Case And Dentons' Global Injunctions Toolkit
...the judgment of Sir Andrew Morritt VC in Bloomsbury Publishing Group Limited & J.K. Rowling v. News Group Newspapers Limited [2003] 1 WLR 1633, a case concerning restraint of the early publication of a Harry Potter The Judge noted: "... there is a strong reason for extending the princip......
-
Fracking fracas – English Court of Appeal gives guidance on injunctions against persons unknown
...cases. The first such case was the well-known 'Harry Potter' case Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 1633, in which unknown persons had illicitly obtained advance copies of "Harry Potter and the Order of the Phoenix" and were trying to sell them to news......
-
Fracking Fracas English Court Of Appeal Gives Guidance On Injunctions Against Persons Unknown
...cases. The first such case was the well-known 'Harry Potter' case Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] 1 WLR 1633, in which unknown persons had illicitly obtained advance copies of "Harry Potter and the Order of the Phoenix" and were trying to sell them to news......