Martin v Channel 4 Television & Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 06 November 2009 |
| Neutral Citation | [2009] EWHC 2788 (QB) |
| Court | Queen's Bench Division |
| Date | 06 November 2009 |
[2009] EWHC 2788 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Eady
Mark Engelman (instructed by Employment Lawyers) for the Applicant
Jacob Dean (instructed by Charles Russell LLP) for the Respondents
Hearing date: 28 October 2009
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.
Mr Justice Eady:
The Applicant, Mr Noel Martin, seeks an injunction to restrain the Respondents from broadcasting or using in any way a film called “The Finishing Line”, which was compiled after extensive filming at his home. The Respondents are Channel Four Television Corporation, Century Films Ltd and Estephan Wagner, who is a young filmmaker.
One of the unusual features of this case is that no proceedings have been issued. This is despite the fact that the matter was before the court on 21 August of this year, when Blair J accepted undertakings and referred the matter to a Jury List judge. Thus, so far, no fees have been incurred save for the £40 in respect of the without notice application in August. It is provided by CPR 25.2(2)(b) that
“… the court may grant an interim remedy before a claim has been made only if–
(i) the matter is urgent; or
(ii) it is otherwise necessary to do so in the interests of justice.”
Neither of those conditions is fulfilled and, therefore, it would appear that the court has no jurisdiction in the matter. It is not simply a question of discretion.
The Applicant's advisers have had the need for proceedings to be issued drawn to their attention by the solicitors acting on behalf of the Respondents. Despite this, they pressed ahead and obtained an appointment for a hearing without taking the necessary steps to issue proceedings. I can see no good reason for this at all.
I have seen what purported to be an order which appeared to record a cross-undertaking as to damages by the Applicant and also an undertaking by him to serve particulars of claim as soon as practicable. This would be standard practice, but the order which bears the court stamp (dated 24 August) makes no reference to either of these undertakings. The document I refer to may be only a draft, therefore. But the fact remains that proceedings and an application should have been issued. A judge would not ordinarily adjourn an ex parte application for two to three months without requiring the Respondents to be properly served. Indeed, it is quite apparent from the (draft) order to which I referred earlier that its draftsman was only too aware that proceedings should be issued “as soon as practicable”. This is no doubt how the undertaking came to be included in the schedule.
The Respondents resist the application on a number of additional grounds. In particular, they have no plans currently to broadcast the film, as has been made clear to the Applicant's advisers. Accordingly, there is no threat or reasonable apprehension that any unlawful conduct is about to take place and thus no ground for granting an interim injunction, whether as a matter of urgency or at all. They have agreed that, if the situation changes for any reason, the Applicant will be given reasonable notice and thus an opportunity to obtain an injunction at that stage should it prove necessary to do so.
Furthermore, the Respondents have offered to edit the passages in the film to which the Applicant takes objection and to show the final results to him and/or his advisers for their comments. They take the view that any editing process would require the undertakings given to Blair J on 21 August to be discharged or varied because, at the moment, they are prevented from “using” the footage for any purpose (which would almost certainly include editing).
The Third Respondent, Mr Wagner, spent several weeks in the spring of this year filming the Applicant carrying on his day to day life. The reason for his interest was that the Applicant had in 1996 been the victim of a racist attack in Germany, as a result of which he was rendered tetraplegic. Subsequently, he has become well known in certain circles in the context of promoting his charity, the primary object of which is to discourage racism among young people in Germany. He now depends upon 24 hour care.
The filming took place with a view to broadcasting the resulting documentary which, on the Respondent's case, took place with the Applicant's full consent. He now denies that consent was given either expressly or by implication.
It is alleged on the Applicant's behalf that there is an oral contract between him and the Respondents. Although the alleged terms of the contract have been expressed somewhat differently from time to time, it would appear that a primary contention of the Applicant is that he was to be given effectively editorial control over the content of the film. Although Mr Engelman, on his behalf, takes objection to that formulation, that is a fair summary of his case. At all events, he certainly contends that he would be entitled to veto any of the content to which he took objection.
The Third Respondent denies that editorial control was ever ceded to the Applicant. In my experience, any such concession would be so fundamentally contrary to the practices of journalists and documentary makers that it would seem to be quite implausible. On the other hand, there are two witnesses (the Applicant and his carer) who have provided statements to the effect that such an agreement was entered into. That is an issue, therefore, which I cannot at this stage finally resolve.
The Applicant's position at the outset of his application seemed to me somewhat ambivalent and I asked for clarification from Mr Engelman as to whether he was seeking to obtain an injunction to prohibit the broadcast of the film, as a whole, in any circumstances; or whether it was his case that it should only be broadcast if the two passages to which he took specific objection were...
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