C.B.S. United Kingdom Ltd v Lambert
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 09 June 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0609-1 |
| Docket Number | 82/0240A |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 1982 |
[1982] EWCA Civ J0609-1
Lord Justice Lawton
Lord Justice Templeman
Lord Justice Fox
82/0240A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR. JUSTICE GOULDING
Royal Courts of Justice
MR. ROBIN JACOB Q.C. and MR. A. MacGREGOR (instructed by Messrs. A. E. Hamlin & Co.) appeared on behalf of the Applicants.
THE DEFENDANTS DID NOT APPEAR AND WERE NOT REPRESENTED.
The judgment which I am about to read is the judgment of the court.
On 19th May 1982 we made, on the application ex parte of the plaintiffs in an action which they proposed to start for the protection of their copyrights, an order in the form annexed hereto. The body of it was in the usual Anton Piller form but, at the end of it, there were Mareva requirements, first, that the defendant should disclose to the plaintiffs' solicitor serving the order the full value, nature and whereabouts of their assets and, secondly, that they should deliver up to that solicitor all motor vehicles owned by them. Mr. R. Jacob, who appeared for the plaintiffs, told us that this was the first case in which an order in this form had been considered by this court, although in a case at first instance a similar requirement for delivering up had been put into a Mareva injunction: see Johnson v. L. & A. Philatelico Ltd. (1981) F.S.R. 286. We had to consider whether there is any jurisdiction in the Supreme Court of Judicature to include these requirements in a Mareva injunction and, if there is, whether this was an appropriate case for doing so. The purpose of this judgment is to set out our reasons for making the order.
The plaintiffs claim to represent the members of the British Phonographic Industry Limited (B.P.I.), which is a company limited by guarantee. We did not consider whether the plaintiffs were entitled to do so. We were informed by Mr. Jacob that a number of representative actions in this form have been started in the Chancery Division and that Dillon J., in E.M.I. Records Ltd. v. Riley and others (1981) 1 W.L.R. 923, had granted an injunction and ordered an inquiry as to damages in such an action. Prima facie on this authority the plaintiffs are entitled to sue in a representative capacity; but we did not consider this occasion, being an ex parte application, was an appropriate one to consider whether the plaintiffs were rightly entitled to sue in such a capacity. Even if they cannot, any defect in the proceedings can probably be cured by joining all the B.P.I, members as plaintiffs. This would put a very long title on the case and result in much pointless typing and consequential time wasting.
The plaintiffs and those whom they claim to represent have for some years past been trying to safeguard their copyrights in musical recordings, mostly of popular songs, which are constantly being infringed by the production and sale of counterfeit records and cassettes. Many of these counterfeits are sold in street markets in the United Kingdom. In the autumn of 1981 it was discovered that there was a large scale distributor of counterfeit cassettes in Southampton. Proceedings were started against him and on 1st December 1981 Goulding J. made an Anton Piller order against him and a helper. As a result of those proceedings it became clear that the defendant Steven Lambert had supplied this distributor with counterfeit cassettes. He and his wife, the defendant Hilary Lambert, were known to B.P.I. In 1977 a recording company had started proceedings against him, his wife and others for infringing copyright in their recordings. An Anton Piller order was made, and on 17th June 1977 the two defendants, by their counsel, gave undertakings to comply with that order pending trial. Another Anton Piller order was made against them on 16th May 1978. These actions were never brought to trial as enquiries seemed to show that the defendants would be unable to pay any money orders which were made against them. It was thought then that Mrs. Lambert's father was mainly responsible for the infringements and he had left the United Kingdom. Further, in 1979 the defendant Steven Lambert offered to turn informer against other infringers and did so, thereby revealing that he had an extensive knowledge of how counterfeit cassettes were distributed and to whom.
In the course of following up information obtained as a result of the Anton Piller order made against the Southampton distributor, one of the B.P.I.'s investigators visited the defendant Steven Lambert at his home at 145 Chingford Lane, London, E.4, on 10th March 1982. He questioned the defendant Steven Lambert and inferred from his answers that he had been supplying the Southampton distributor and others with counterfeit cassettes. He noticed that this defendant's house, which later enquiries revealed to be a council house, had recently been completely redecorated, refurnished and carpeted. Much money had clearly been spent on furnishings and a fitted kitchen. The investigator learned later that this defendant was claiming to be unemployed and was then receiving social security payments. Attempts later to test this defendant's story as to where he obtained the cassettes he handed on to the Southampton distributor were unsuccessful. These cassettes purported to be of foreign origin but B.P.I.'s researchers had established that they were not.
On 11th May 1982 the plaintiffs' solicitors learned from the police that the defendant Steven Lambert had been arrested for handling stolen goods and was in custody. When his home at 145 Chingford Lane had been searched by the police a large quantity of labels, estimated to total about 15,000, had been found. These labels were for cassettes and were of a kind which had been affixed to the kinds of counterfeit cassettes into the origins of which B.P.I, had been enquiring for some months past. The solicitors were told by the police that this defendant had admitted to them that he was a "record pirate" and had given them particulars of his sources of supply for tapes and labels for cassettes and where the unlawful recordings had been made. They also told the solicitors that this defendant had recently bought a Lotus Elite motor car, registration number OPW 656 W at a cost of £9,000 and a Jaguar motor car of the XJ6 type which had a T registration letter. They also said that they believed him to be the owner of two Jensen Healey motor cars and a Scimitar car. Further, he had rented accommodation at 44A Chingford Mount Lane, London, E.4, which he had shared with a woman who was thought to be his mistress. From what the plaintiffs had learned and had been told (and I have summarised the evidence very briefly) they drew the following inferences: first, that from at least November 1981 the defendant Steven Lambert, helped by his wife, had been engaged in a large way with the production, distribution and sale of...
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