Peter Settelen and Chakra Prductions Ltd and The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Peter Smith |
| Judgment Date | 29 September 2004 |
| Neutral Citation | [2004] EWHC 2171 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC04C02993 |
| Date | 29 September 2004 |
[2004] EWHC 2171 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Honourable Mr Justice Peter Smith
Case No: HC04C02993
Mr Thomas Lowe (instructed by Reed Smith) for the Claimant
Mr Duncan Macleod (instructed by Metropolitan Police Service) for the Defendant
Hearing dates: Thursday 16 th September 2004
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.
INTRODUCTION
This Judgment is handed down as a result of a hearing that took place on 16 th September 2004. At the end of the hearing I indicated that I would accede to the Claimant's application for relief as sought before me subject to undertakings being given by the Claimants and the Claimant's Solicitors as to the preservation of the tapes, the subject matter of the application.
The Defendant, the Commissioner of the Police of the Metropolis had indicated through its Counsel Mr Macleod at the hearing before me that it was content for the copy tape the subject matter of the application to be delivered up to be held in accordance with the undertakings to which I have already made reference. However, it contended that it was not obliged to deliver the copy tape up and that therefore it sought an order that the Claimants pay its costs. The Claimants for their part contended that they would have been entitled to an order and that therefore they would have recovered their costs.
By the time the matter came on before me therefore, the only live issue, in effect was the question of costs. That of necessity however, required the Court to determine the overall merits of the case. Ordinarily I would have declined to embark on such an exercise, but given the urgency, the importance of the case factually and potential legal issues arising out of the determination it was, in my judgment appropriate to determine the issues as to principle for the costs issue.
As a result of my determination the Defendant will have to pay the Claimants costs to be the subject matter of a detailed assessment if not agreed.
THE APPLICAITON
The Claimants have not actually issued a claim form and the order following the delivery of the judgment will have to include an undertaking to issue a claim form and pay the appropriate fee.
They issued an application notice on 7 th September 2004, which provided for (1) delivery up into the safe keeping of the Claimants Solicitors video tapes referred to in the draft order, (2) provision of information and (3) costs.
By the time the matter came on before me, as I have said, the issue of delivery had been resolved and there was no pursuit of the request for information. The only matter for me to determine was whether or not the Claimants were entitled to delivery up of the videotape referred to in paragraph 1 of the draft order.
BACKGROUND
The order sought the delivery up of a copy of the Claimants videotape referred to in a letter dated 10 th August 2004, from the Metropolitan Police Director of Legal Services to Mr Rutherford of the Claimant's Solicitors, Reed Smith. And all other copies of the Claimants videotapes, which may be in the possession, power or control of the Defendant. Although the draft order provided for a retention of the tape until further order by the Claimants' Solicitors, in practical terms the action is concluded, save as to regards the continued retention of the copy tape and the further documents referred to in the draft order to be drawn following the undertaking proffered by Mr Lowe Counsel for the Claimants (and for this purpose Reed Smith also).
The application is another piece of court litigation arising out of the unfortunate death of the late Diana Princess of Wales ("the Princess"). The First Claimant who controls the Second Claimant (his company for all purposes as I understand it) in the early 1990's was asked by the Princess to help her with speeches and speech delivery following the breakdown of her marriage with HRH Prince Charles ("The Prince of Wales") and over the period during which they made a formal separation.
In the course of the work the First Claimant ("Mr Settelen") recorded several (but not all) of the sessions on the videotapes. His recollection is that he produced a total of twenty tapes or there abouts, some of which remain in his possession, but some of which were left with the Princess for her to review at her leisure. There was no express agreement made concerning the ownership of the tapes and the terms upon which Mr Settelen was providing services were never put into writing. He was not paid separately for the videotapes and he charged for his services in the usual way, by the hour. He did however pay for and own the blank videotapes and was responsible for all arrangements for the recordings made.
He asserts that he never made a gift of them to the Princess and has asserted in this action (there is now no doubt so far as I can see) that he and or the Second Claimant are the author of the videotapes within the meaning of section 9 of the Copyright Designs and Patents Act 1988 and the first owner of the copyright by virtue of section 11 of that Act.
HISTORY OF CLAIMS
Following the death of the Princess MR Settelen wrote to Kensington Palace asking for the return of tapes, which he had always and consistently regarded as his property. He was told that the Princess's former butler, Paul Burrell had been unable to trace the tapes and could only assume that they were destroyed by the Princess. However, when Mr Burrell was arrested and his premises searched at least six of the tapes turned up in the possession of Mr Burrell who was charged with theft of other items of property and acquitted. He was not however ever charged with the theft of the six tapes, which were recovered from his house. This was despite the fact that Mr Settelen contacted the Defendant who told him to report them as stolen, which he did.
Following the trial the Defendant had the task of returning property seized from Mr Burrell's premises to its rightful owners. Many of the items were disputed as between Mr Burrell and the executors of the Princesses Estate ("the Estate"), but all of these issues were resolved.
Mr Burrell was acquitted in early November 2002. Shortly thereafter Mr Settelen on 3 rd November 2002 requested the return of his tapes. He had of course first made a claim shortly after the death of the Princess on 25 th September 1997. He has consistently asserted the Claimants ownership and copyright in the tapes.
Following the acquittal of Mr Burrell, the Estate on the 1 st November 2002 also asserted ownership of all property that was in Mr Burrell's possession other than property owned or claimed by the Princes'.
That of course meant that the Defendant was faced shortly after the acquittal of Mr Burrell with two competing claims for the ownership of the tapes. It had lawfully seized the tapes under section 19 of the Police and Criminal Evidence Act 1984 ("PACE") when it searched the house of Mr Burrell. They were seized then for the purposes of investigating whether Mr Burrell had committed any criminal offence. As I have said, the tapes were never the subject mater of a charge against Mr Burrell. There is of course no question of the Claimants ever being involved in any criminal activity and there has never been any question of retaining tapes for the purposes of investigating the Claimants.
Following the competing claims (and other claims) the Defendants investigated the matter further and on 28 th January 2003 wrote to Mr Settelen setting out a schedule of property recovered from the house of Mr Burrell. Schedule G related to the six original tapes of which the tapes the subject matter of this application is a copy of one of them.
The Defendant through Samantha Rachel-Ann Bird the Director to Legal Services for the Defendant indicated in the letter that the Defendant proposed to hold the property stored in a secure location until a final court order is made with respect to the restoration of the property as the court orders or consent is reached. The Claimants had sought access to the tapes, but this apparently had been refused although summaries were provided at a later stage. On 12 th March 2003 Ms Bird indicated that the tapes would be retained by the Defendant until agreement was reached with the Estate or a court order made. During 2003 there was fruitless correspondence passing between the Claimant's Solicitors and the Defendant's Solicitors, which did not take the matter further. Somewhat surprisingly the Claimants and their lawyers were refused access to review the tapes. Attempts were made to negotiate with the Estate, the Claimants Solicitors correspondence being unreasonably categorised as "irksome" (letter 21 st July 2003).
Despite the lack of access to the Claimant and the fact that only a handful of senior officers had seen the tapes and two lawyers in the legal directorate, an article appeared in the Guardian on 15 th March 2003, which purported to report that officers who knew the contents had privately conceded that the tapes were "awfully embarrassing and that Mr Settelen probably has a powerful case for their return".
This following the traditional route of all leaks in high profile cases is attributable. The Defendant denies it was responsible for the leak (and a later more significant one in September 2004).
Ultimately, inter-pleader proceedings were issued on 12 th November 2003 by the Defendant against Mr Settelen and the Estate....
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Goldring Timothy Nicholas v PP
...Collector of Land Revenue [2002] 2 SLR (R) 633; [2002] 4 SLR 495 (refd) Peter Settelen v The Commissioner of Police of the Metropolis [2004] EWHC 2171 (Ch) (refd) PP v Lo Ah Eng [1965] 1 MLJ 241 (refd) R v Her Majesty's Coroner at Hammersmith, ex parte Peach (Nos 1 and 2) [1980] QB 211 (ref......
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...and Tobago [2002] 1 AC 871 at [25]–[27], Peter Settelen, Chakra Productions Limited v The Commissioner of Police of the Metropolis [2004] EWHC 2171 (Ch) at [39]–[41], and United Kingdom, The Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in En......