Hyde Park Residence Ltd v Yelland

Thursday, 10th February 2000

On 30th August 1997, Diana Princess of Wales and Mr Dodi Fayed visited the Villa Windsor in Paris. It was a private home held on a long lease by Mr Al Fayed. In the early hours of the next day they were involved in a car crash which resulted in their deaths. The resulting national and international emotion and interest are well known.

On arrival at and departure from the Villa Windsor, the Princess and Mr Dodi Fayed were recorded on video tape by at least two of the security cameras that were installed. Security at the Villa Windsor was the responsibility of Hyde Park Residence Limited (Hyde Park), a company controlled by Mr Al Fayed. At the time of the visit, Mr Murrell was the employee of Hyde Park responsible for the security of the Villa Windsor. He let them in and saw them out. According to Mr Murrell a few days after the accident, he was instructed to print stills from the tape recording of the Princess and Mr Dodi Fayed arriving and leaving the Villa. I will refer to them as the driveway stills. He printed two copies and sent one set to Mr Klein, the president of the Ritz Hotel in Paris, and the other set was retained in the operations room at the Villa.

On 5th August 1998, Mr Paul Thompson, a reporter for The Sun, was approached by a woman who asked him whether he was interested in speaking to one of Mr Al Fayed's security guards. He said that he was and a meeting was arranged between himself and Mr Murrell. On 5th or perhaps 6th August, Mr Murrell gave to Mr Thompson the set of driveway stills that he had taken, without permission, from the operations room at the Villa Windsor. They were published without the consent of Hyde Park in The Sun on 2nd September 1998 as part of an article entitled "Video That Shames Fayed".

By writ dated 4th September 1998, Mr Al Fayed and Hyde Park started proceedings against Mr Yelland, the editor of The Sun; News Group Newspapers Limited, the publishers; News International Newspapers Limited, the proprietors, and Mr Murrell. Mr Al Fayed withdrew from the proceedings as he was not considered to be a necessary party.

In the statement of claim served on 30th October 1998, Hyde Park alleged that the acts of the defendants were wrongful. They relied upon a number of causes of action including breach of contract, inducement of breach of contract, breach of confidence and infringement of copyright. By summons dated 28th October 1998, Hyde Park sought summary judgment under O.14 and 14A RSC in respect of the allegations of breach of copyright. The essential allegations were that Hyde Park were the owners of the copyright in the film from which the driveway stills were printed and that by publishing the driveway stills in The Sun the defendants had infringed that copyright either by carrying out an exclusive right possessed by Hyde Park pursuant to the Copyright, Designs and Patents Act 1988 or authorising such an act. They claimed, amongst other things, an injunction, delivery up, an inquiry as to damages including damages for flagrancy (section 97(2)) and alternatively an account of the profits.

The summons came before Jacob J. Before him ownership and subsistence of copyright were not in dispute. Although a draft defence alleged that the driveway stills did not form a substantial part of the copyright work, that appears to have been abandoned. The substantive defence was twofold. First that there was no infringement as the driveway stills had been used in such a way as to constitute "fair dealing" within section 30(2) of the 1988 Act and second that publication was not unlawful as it was in the public interest.

Those defences were pleaded in the draft defence in this way:

"22.3 Further or alternatively, the exploitation of the Villa Windsor Pictures in and in connection with the publication of the Bodyguard Exclusive constituted fair dealing with the same for the purpose of reporting current events and, if necessary, the Defendants will contend that this was accompanied by a sufficient acknowledgement. The Defendants will rely upon the provisions of section 30(2), of the Copyright, Design and Patents Act 1988."

"22.1 At all material times it was in the public interest for copies of the Villa Windsor Pictures to be published as they were in the issues of The Sun dated 2, 3 and 4 September 1988 as part of the Bodyguard Exclusive, as without such publication the exposure of the falsehoods that was contained in the Bodyguard Exclusive would have lacked independent evidence to corroborate Mr Murrell's account and accordingly would have [been] ineffective, alternatively substantially less effective, to achieve that lawful end. Paragraph 13 above is repeated mutatis mutandis."

In his judgment of 16th March 1999 the judge upheld the defences of fair dealing and public interest. On that day the parties attended to make submissions as to the order that should be made. The defendants submitted that upon the terms of the judgment not only should the plaintiffs' application for summary judgment be dismissed, but that they were entitled to judgment dismissing the claim against them for infringement of copyright. The judge accepted that submission and without giving a further judgment ordered that the action for infringement of copyright be dismissed and that judgment be entered for the defendants in respect of the claim for copyright infringement. He gave leave to appeal and Hyde Park appealed contending that the judge was in error in concluding that the defendants had a bona fide defence based on fair dealing or public interest. They also contend that, even though the O. 14 summons was dismissed with the result that the defendants would have leave to defend, the judge should not have dismissed their claim for infringement of copyright.

It is important to bear in mind that the issues raised in this appeal arise before there has been a trial. Judgment, as sought by Hyde Park, can only be ordered if it be established that the defendants have no bona fide defence to the copyright claim. Order 14 does not provide a procedure for resolving disputes of fact and should not be used to carry out a trial on affidavit evidence. It follows that, when considering Hyde Park's case for O. 14 judgment, I will assume that the facts are as stated in the draft defence and as stated by the defendants in the evidence, except where they accept the evidence of Hyde Park or there could be no controversy. Thus allegations by the defendants as to what happened will appear as facts in the following account, whereas many of them are in dispute.

After the accident on 31st August 1997, there was considerable public interest in how it occurred. Mr Cole, the Harrods' director of public relations, on 5th September 1997, briefed the press on behalf of Mr Al Fayed. He said that an unnamed person in Paris had passed on to Mr Al Fayed the Princess's last words and requests. He also referred to a £130,000 diamond solitaire ring Mr Dodi Fayed had given to the Princess on 30th August. He said that Mr Al Fayed, when he went to Paris, had seen the bodies of both the Princess and Mr Dodi Fayed. Clearly Mr Cole was asked about the allegations that had been made that the driver of the car involved in the accident, an employee of the Ritz, had been drinking alcohol. He sought to throw doubt upon the blood alcohol levels found in the blood of the driver, but ran through the timetable of events leading up to the car crash. He accurately told the press the times of the arrival at and departure from the Villa Windsor by the Princess and Mr Dodi Fayed.

Despite the accurate briefing by Mr Cole of the times of arrival and departure from the Villa Windsor, Mr Al Fayed fabricated and gave wide publicity to a different version in a book entitled "Death of a Princess" written by Mr Thomas Sancton and Mr Scott MacLeod which was published in 1998, and the 8th February 1998 edition of the Sunday Times; in the 12th February and 31st August 1998 editions of The Mirror; and in a television programme "Secrets of the Crash" broadcast on ITV in July 1998. The gist of the falsehoods conceived by Mr Al Fayed are pleaded in paragraph 12.5 of the draft defence in this way:

"12.5 …. the gist of the falsehoods thus conceived and published to the general public throughout England and Wales was to the effect that (in addition to an earlier visit made on the weekend of 26 and 27 July 1997) on 30th August 1997, in preparation for a new life together and consistent not only with their intention to get married and to live in the Villa Windsor with the blessing of Mr Al Fayed but also with the existence of a conspiracy to kill them in order to prevent their marriage, Dodi and Diana had visited Villa Windsor for at least two hours, had been accompanied by an Italian designer who had already drawn up detailed plans for some of the apartments that Mr Al Fayed knew about because he was personally involved in these events, had manifested great happiness and affection towards one another, had examined every part of the house, and had taken a detailed...