Carlton Film Distributors Ltd v VCI Plc
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE JACOB |
| Judgment Date | 19 March 2003 |
| Neutral Citation | [2003] EWHC 616 (Ch) |
| Court | Chancery Division |
| Date | 19 March 2003 |
[2003] EWHC 616 (Ch)
Mr. Justice Jacob
(In an Intended Action)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
MR. T. WEISSELBERG (instructed by Messrs. Theodore Goddard) appeared on behalf of the Applicant
THE INTENDED DEFENDANT did not appear and was not represented
MR. J. ABRAHAMS (instructed by Messrs. Harbottle & Lewis)appeared on behalf of the Respondent.
This is an application by the Carlton Film Distributors Limited in an intended action against a company called VCI Limited. Proceedings do not yet exist.
There was an agreement between Carlton and VCI whereby VCI were to make licensed copies of a number of films. Some have been very successful and famous films.
The Licence Agreement contained restrictions as to what could be manufactured. There was a limited amount in the last six months and Carlton say the purpose of the restrictions were in effect to control the quantities made. Carlton say, judging by what has happened in the market, there has been some sort of breach of the licence agreement. This is denied by VCI.
A critical issue is whether there was over-production during certain periods. VCI themselves did not make the videos. They were made by the present respondents, who are VDC Limited. There is no dispute that VDC Limited has got records of precisely what they have made and when.
This application is made for copies of the daily machine lists in respect of the following titles for the periods listed below —and I will give by way of example, "The Shawshank Redemption", 1st August 2001 to 17th February 2002, the 18th February 2002 to 17th August 2002 and 18th August 2002 to date.
Carlton have, as one would expect in their Agreement with VCI, a right for an audit to be conducted. VCI have made it absolutely plain that they do not actually have in their records dates of manufacture. So there is nothing more to be had from VCI.
Carlton, via a witness statement of Mr. Coker, their Finance Director, show that there are reasonable grounds for supposing that there was over-production during the course of the contract. They cannot be sure, but they say there are enough grounds at least for suspicion —quite strong grounds. That, of course, is not the same thing as having enough to put an allegation that there has been a breach of the contract and signing that as a statement of truth. They have some material, but not quite enough. What they want are the manufacturing records which are in the hands of VCI. It might well be that in the future in a similar contract one would arrange for the manufacturing records to be available so that they could be obtained in an audit, but that is not this case.
Given their suspicions, Carlton apply to the court for an order against VDC for what they describe as a Norwich Pharmacal order —that is to say, an order based upon the principles established in Norwich Pharmacal v. Customs & Excise Commissioners [1974] A.C. 133. That case was decided on the basis that the plaintiffs could establish that a wrong had been done to them, the extent of the wrong, but not who had done it. This was because Customs published the details of the chemicals coming into this country and their quantities, but not the importer. This case is different. Carlton know who the wrong-doer is (if wrong-doer they be) namely VCI. They say there are reasonable grounds for supposing VCI have broken the contract and, Mr. Weisselberg added, perhaps infringed copyright (over-production might well be in breach of copyright if Carlton had relevant rights) but Carlton do not have quite enough to start the action.
In its time Norwich Pharmacal was ground-breaking. It was argued, indeed, that it was a very special case, virtually unique, because how often does one know that one has had a wrong done to one, not know who did it but know a man who does? However, things have moved on. The jurisdiction of equity to assist in the attainment of justice has been seen to apply to other kinds of case too. Thus, similar orders are now made pursuant to the jurisdiction established in Bankers Trust v. Shapiro.
Most pertinently as far as this case is concerned is the decision of Sir Richard Scott V.-C. in — P. v. T. Limited [1997] 1 WLR 1309. The plaintiff had been dismissed. Allegations had been made against him. He did not know what the allegations were or who had made them, but the employer thought it right to dismiss him and would not reveal why. He brought a claim for wrongful dismissal which succeeded because the employer would not say more. The plaintiff wanted more. He wanted to clear his name. So he made an application against the employer for the details of who had said what about him. Sir Richard Scott V.-C. said this, at p.1318:
"… his position is not the same as that of the plaintiff in the Norwich Pharmacal case [1974] A.C. 133. In the Norwich Pharmacal case the plaintiff was able to demonstrate that tortious infringements of patent rights were being committed. It did not know by whom. It did not know whom to sue. But that there was tortious conduct against it was not in question. In the present case it is in question whether a tort has been committed against the plaintiff. He believes that it has. The purpose of any order I make, as I suppose of any order that a judge ever makes, is to try to enable justice to be done. It seems to me that in the circumstances of the present case justice demands that the plaintiff should be placed in a position to clear his name if the allegations made against him are without foundation. It seems to me intolerable that an individual in his position should be stained by serious allegations, the content of which he has no means of discovering and which he has no means of meeting otherwise than with the assistance of an order of discovery such as he seeks from me. It seems to me that the principles expressed in the Norwich Pharmacal case, although they have not previously been applied so far as I know to a case in which the question whether there has been a tort has not clearly been answered, ought to be applicable in a case such as the present."
So Norwich...
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