Paul Gregory Allen (acting as Trustee of Adrian Jacobs (Deceased)) v (1) Bloomsbury Publishing Plc, (2) Joanne Kathleen Murray (professionally known as JK Rowling)
Jurisdiction | England & Wales |
Judge | Mr Justice Kitchin |
Judgment Date | 18 March 2011 |
Neutral Citation | [2011] EWHC 770 (Ch),[2010] EWHC 2560 (Ch) |
Docket Number | Case No: HC09CO1979,Case No: HC09C01979 |
Court | Chancery Division |
Date | 18 March 2011 |
[2010] EWHC 2560 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Before: Mr Justice Kitchin
Case No: HC09CO1979
Robert Howe QC and Mark Engelman (instructed by DMH Stallard LLP) for the Claimant
Andrew Sutcliffe QC and William Edwards (instructed by Reynolds Porter Chamberlain) for the 1 st Defendant
John Baldwin QC and Adrian Speck (instructed by Schillings) for the 2 nd Defendant
Hearing dates: 28 th—30 th July 2010
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 Kitchin:
Introduction
This is an action for infringement of copyright in a book called Willy the Wizard (“WTW”) which was written in 1987 by the late Mr Adrian Jacobs (“Mr Jacobs”). The claim is brought by the trustee of Mr Jacobs' estate, Mr Paul Allen. He alleges that Harry Potter and the Goblet of Fire (“Goblet”), the fourth book in the well known Harry Potter series of books written by the second defendant, Joanne Murray, popularly known as JK Rowling (“Ms Rowling”), reproduces a substantial part of WTW and that this is a result of copying. Goblet has been published in the UK by the first defendant, Bloomsbury Publishing Plc (“Bloomsbury”).
I now have before me applications by the defendants for summary judgment on the basis that Mr Allen has no real prospect of succeeding in the claim and there is no other compelling reason why the claim should be disposed of at a trial. They say that WTW and Goblet are not similar save at the most generalised level and that such similarities as there are between the two books have arisen by chance. Moreover, Ms Rowling had never heard of WTW or Mr Jacobs prior to the publication of Goblet and there is nothing to support a case of access to WTW or copying. In the alternative, the defendants invite me to make a conditional order requiring Mr Allen to provide security for their costs.
Mr Allen says that the application should be dismissed. He contends there is substantial evidence to indicate that Ms Rowling's claims that she did not have access to WTW before writing Goblet are not true. Further, he continues, the allegations of infringement have generated lengthy and detailed schedules in which numerous aspects of each work are disputed. Moreover, there is further highly relevant disclosure which is likely to shed light on these matters. In summary, the claim is far from fanciful and raises many disputes of fact and complex issues of law which are self evidently wholly unsuitable for summary determination.
Background
WTW was published in the UK in 1987 by Bachman & Turner. In July 1989 Mr Jacobs was declared bankrupt and he died in February 1997. On 4 October 2004, the Official Receiver in Mr Jacobs' bankruptcy assigned the copyright in WTW together with all accrued causes of action to Mr Jonathan Jacobs, his son, beneficiary and administrator of his estate in probate. On 11 June 2008, Mr Jonathan Jacobs appointed Mr Allen as trustee of the estate and assigned the copyright and causes of action to him.
It is Mr Allen's case that in 1987, Mr Christopher Little, who became Ms Rowling's literary agent some eight years later, was given copies of WTW and that he gave a copy to Ms Rowling before she wrote Goblet or, indeed, any of the other Harry Potter books.
As I shall elaborate, there is a substantial dispute as to the events that occurred in 1987 and the nature of the relationship between Mr Little and Mr Jacobs. Nevertheless, the defendants contend that Mr Allen's case on copying is hopeless essentially because Ms Rowling did not make contact with Mr Little until 1995 by which time the first book in the series, Harry Potter and the Philosopher's Stone, had already been written and the others planned. Indeed, Ms Rowling says that the first she ever heard of WTW was in 2004 when she was informed that a complaint of copyright infringement had been made by the estate of Mr Jacobs and she was not provided with a copy of it until May 2010.
More specifically, Ms Rowling explains that the idea for the Harry Potter series first came to her in 1990 while she was on a train journey from Manchester to London. That evening she began writing Harry Potter and the Philosopher's Stone. The manuscript was completed in 1995 and Ms Rowling set about sending the first few chapters to literary agents, one of whom, Mr Little, asked for the full manuscript. On the strength of this manuscript, Ms Rowling was taken on by Mr Little. He made only minor suggestions for improvement but never any changes to the themes or story line. He did not, Ms Rowling continues, encourage her to use any ideas or themes from other books, nor did he provide her with any books in order for her to use their ideas. Following an offer from Bloomsbury, Harry Potter and the Philosopher's Stone was published in 1997. The version of the book supplied to Mr Little's agency in 1995 was largely the same as that which was published. Further, by this time Ms Rowling had also mapped out, and then described in detail to Mr Little, the themes and storylines for the remaining six books in the series. Accordingly, although Goblet was, says Ms Rowling, mostly written during 1999–2000, the ideas for the plot had been developed over a number of years dating back to 1990, long before she had ever met Mr Little, let alone heard of WTW.
This claim has a long history. In brief, in March 2004, solicitors then acting for Mr Jonathan Jacobs, wrote to Ms Rowling asserting that the five Harry Potter books then published amounted to a persistent and wilful infringement of copyright in WTW. The allegation was refuted and following a good deal of correspondence over the course of the next three months, the matter was not pursued.
On 2 July 2008, new solicitors by then instructed on behalf of Mr Allen and the estate of Mr Jacobs wrote renewing the allegation of infringement of copyright not only in WTW but also raising an allegation of infringement of copyright in another apparently unpublished work by Adrian Jacobs called Holiday Antics (“HA”). It was again asserted that the first five Harry Potter books were infringements. Nevertheless, the letter continued, Mr Allen intended to limit his claim to Goblet whilst reserving his rights in relation to the others. Enclosed with the letter were draft particulars of claim which asserted that Ms Rowling had deliberately concealed her infringing activities. Once again the allegation was refuted in correspondence and the matter again fell quiet, this time for a period of about seven months.
Then, by letter of 11 June 2009, Mr Allen's solicitors wrote informing Bloomsbury's solicitors of the imminent commencement of proceedings against Bloomsbury in respect of infringement of copyright in WTW by the publication of Goblet. The claim in respect of HA had apparently fallen away. In February 2010, nearly six years after the original complaint, Ms Rowling was joined in the proceedings as second defendant.
Summary judgment – general principles
On a summary judgment application the court must consider whether the case has a real as opposed to a fanciful prospect of success. The approach to be adopted was explained by Carnwath LJ in Mentmore International Limited v Abbey Healthcare (Festival) Limited [2010] EWCA Civ 761 at [20] to [23]:
“20. It is important to keep in mind the principles to be applied in deciding whether a case is suitable for disposal on a summary basis. The most authoritative up-to-date statement is that of Lord Hope in Three Rivers DC v Bank of England (No 3) [2001] 2 All ER 513:
“In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents, without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, [2001] 1 All ER 91, at p. 95 that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”
21. Another frequently cited passage on the same theme is the judgment of Colman J in De Molestina v Ponton [2002] 1 Lloyd's Rep 271, 280 para 3.5, speaking of the difficulty of basing summary judgment on inferences of fact in a complex case:
“…, as Three Rivers District Council shows, where the application in such complex cases relies on inferences of fact, the overriding objective may well require the claim to go to trial in the interest of a fair trial. That is because the relevant inference could not be safely drawn without further discovery and oral evidence at the trial. It is thus necessary, where such inferences are relevant, to guard against the temptation of drawing them as a matter of probability, because the achievement of the over-riding object requires a much higher degree of certitude. Where in a complex case, as may often be the situation, the frontier between what is merely improbable and what is clearly fanciful is blurred, the case or issue should be left to trial.”
22. To these familiar citations, Mr Reza adds the words of Potter LJ in ED&F Man Liquid Products v Patel [2003] EWCA Civ 472 para 10:
“However,...
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