Phonographic Performance Ltd v Fletcher
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 22 June 2015 |
| Neutral Citation | [2015] EWHC 2562 (Ch) |
| Court | Chancery Division |
| Date | 22 June 2015 |
| Docket Number | Case No: N/A |
[2015] EWHC 2562 (CH)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Arnold
Case No: N/A
Mr T ST Quintin (instructed by Hamlins LLP) represented the Claimant
Mr M Lee (instructed by SD Law) represented the Defendant
Digital Transcript of Wordwave International, a Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7421 4036 Fax No: 020 7422 6134 Web: Email: (Official Shorthand Writers to the Court)
This is an application from by the well-known collecting society Phonographic Performance Ltd ("PPL") for committal of Mr John Fletcher for breach of an order made by Mann J on 30 October 2013 which prohibited Mr Fletcher from playing or authorising the playing in public of sound recordings within PPL's repertoire.
The background to the application is that the proceedings relate to a nightclub at 13 Market Street, Newport called The Birdcage. From 25 February 2013 until its dissolution on 21 January 2014, a company called Birdcage Newport Ltd was the premises licence holder. Throughout this period, Mr Fletcher was the sole director of that company. On 6 April 2014 Mr Fletcher applied for the premises licence personally and he has been the premises licence holder since 22 May 2014. Mr Fletcher is, and has at all material times been, the designated premises supervisor at the premises. In those circumstances PPL contends that, in so far as any of the infringements of its rights of which it complains were committed during the period when the premises licence was held by the company, Mr Fletcher is liable for authorising and/or as a joint tortfeasor. That proposition has not been contested by Mr Fletcher.
Prior to commencing the proceedings, PPL made investigations of infringing activities at the nightclub in the usual way and made efforts, in correspondence, to persuade Mr Fletcher to take a licence. No licence was taken and the proceedings were commenced on 20 April 2013. No response was received to any correspondence or the issued proceedings from the company or Mr Fletcher. On 27 September 2013 PPL's solicitors issued and served an application notice for judgment in default. It was pursuant to that application that the order was made by Mann J. I should note that it is Mr Fletcher's position that he did not receive the injunction application and it was for that reason that the matter went by default.
In his order, Mann J ordered the defendants to pay PPL's costs in the sum of £1,747.70. It is PPL's evidence that the sealed order was served on 3 November 2013, although, as I understand it, Mr Fletcher disputes that. Nevertheless, I do understand it to be disputed that there were subsequent communications between PPL and Mr Fletcher in which he agreed to pay the outstanding licence fees by monthly instalments. However, those payments were not made.
Then on 14 January 2014, Mr Fletcher agreed to pay the total sum then due of £6,790.30 in weekly instalments of £377.24. He paid the first instalment, but failed to pay the next two instalments on time. In an attempt to facilitate compliance, PPL agreed to reduce the weekly payments to £250, but Mr Fletcher still failed to comply with the agreed payment plan. Between 8 March 2013 and 30 June 2014, he made sporadic payments totalling £2,873.
As a consequence of Mr Fletcher's failure to adhere to the agreed payment plan, PPL applied for and obtained a writ of fieri facias on 8 April 2014. It is PPL's evidence that High Court enforcement officers were instructed to enforce the writ, but were unsuccessful. As a result, on 14 October 2014 the order was personally served on Mr Fletcher at the premises. I note again that Mr Fletcher disputes that. Nevertheless, it is accepted by Mr Fletcher, for the purpose of the present application, that in the meantime a copy of the order had been sent to him by email on 21 February 2014. For that reason, although as I have indicated, Mr Fletcher disputes personal service of the order upon him, he sensibly takes no point about that on this application.
Resuming the chronology, on 10 January 2015 an investigation agent instructed on behalf of PPL visited the premises and recorded certain recordings within PPL's repertoire being played in public. Accordingly, on 17 February 2015 PPL's solicitors wrote to Mr Fletcher warning him that a contempt application would be made unless he regularised his position. Mr Fletcher telephoned in response to that letter offering to pay in weekly instalments. However, that offer was not acceptable to PPL, and accordingly the present application was launched on 10 April 2015.
When the application first came before the court on 12 April 2015, Mr Fletcher did not attend, and accordingly Newey J issued a bench warrant. Mr Fletcher was subsequently arrested and brought to court on 21 May 2015, when I adjourned the matter in order for him to obtain legal representation. I subsequently made a representation order in his favour.
The matter has returned to court today. Mr Fletcher has, again, not attended, but on this occasion, his solicitors have informed me that the explanation is that his grandmother has just passed away and it is for that reason only that he does not appear. In addition, I have been provided with a draft affidavit of Mr Fletcher in which he sensibly makes it clear that he does not contest the allegation of breach of Mann J's order nor does he pursue procedural objections which had previously been indicated in correspondence. Accordingly, the only issues before me this afternoon are of sanction and other remedies. In those circumstances, and given that Mr Fletcher is represented by counsel and given the view I take as to the nature of the sanction to be imposed, I have decided to proceed in his absence.
So far as the question of sanction for the admitted contempt is concerned, Mr Fletcher's draft affidavit sets out certain matters by way of mitigation. In particular, Mr Fletcher explains he...
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...damages for the breach of covenant; and committed the landlord to prison. This court upheld his decision. 56 In PPL v Fletcher [2015] EWHC 2562 (Ch) Arnold J awarded damages under section 97 (2) in addition to imposing a suspended custodial sentence. In PPL v Miller [2016] EWHC 3738 (Ch) th......
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...with in terms of PPL cases starting with Pumfrey J in PPL v. Reader [2005] EWHC 416 and moving on to Arnold J in PPL v. Fletcher [2015] EWHC 2562 (Ch) and in PPL v. John [2015] EWHC 3394 (Ch). In all those cases the person who was found to be in contempt, having failed to comply with the sa......
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