Phonographic Performance Ltd v Stephen Gary Miller
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 12 December 2016 |
| Neutral Citation | [2016] EWHC 3738 (Ch) |
| Docket Number | Case No: HC-2014-001904 |
| Court | Chancery Division |
| Date | 12 December 2016 |
[2016] EWHC 3738 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Mr Justice Birss
Case No: HC-2014-001904
Mr T St Quintin (instructed by N/K) appeared on behalf of the Claimant
Mr S Reid (instructed by Ewings & Co) appeared on behalf of the Defendant
(As Approved)
This is a committal application relating to Mr Stephen Gary Miller who trades as the Ivory Lounge in Dunstable in Bedfordshire. It is brought by Phonographic Performance Limited, who are a collecting society concerned with copyright in sound recordings.
The facts are not uncommon, Mr Miller operates the Ivory Lounge and in that club some recordings are being played, the details of which do not matter. They are sound recordings in which the copyright is held by PPL. I am told that the Ivory Lounge started in 2012, that is in the evidence. I am told that in 2014, I think in March, PPL started trying to encourage Mr Miller at the Ivory Lounge to take a licence, as he was required to do in order for his playing of these sound recordings to be lawful. That did not succeed and proceedings were brought, leading to a default judgment order from Peter Smith J, which is dated 5 March 2015.
Over time Mr Miller had still not entered into a licence. He says he had made some efforts to do that, but that PPL had not. However, PPL will not enter into a licence until you have satisfied the fees which are outstanding. PPL investigated the matter and found that Mr Miller's club was still playing some of PPL's copyright sound recordings.
An application to commit was brought dated 24 May 2016 on the basis that Mr Miller was in breach of the court's order. That came before Norris J on the hearing on 5 July 2016. He made a representation order and also directed that service of the application had been successful upon Mr Miller. From then on Mr Miller was represented by solicitors and counsel under the representation order on the basis that these are quasi-criminal proceedings and therefore would be able to receive criminal legal aid.
Mr Miller put in an affidavit dated 12 July 2016 in which he not only did not admit that he was in breach of the order, he said that he was not responsible for anything to do with playing music or obtaining licenses at the venue. He said also that although he was the premises licence holder and the designated premises supervisor, he was not involved in the day-to-day running of the business and sought to say that those who were responsible were his brother and his son.
At one stage, the precise time doesn't matter, Mr Miller's solicitors and counsel ceased to act for him and new solicitors and counsel were appointed. Before me I have Mr Reid of counsel representing Mr Miller under the representation order.
The matter comes on today. Mr Miller is not here and the first thing I have to decide is whether it was appropriate to deal with this matter in his absence. Counsel for the defendant submitted that it would be appropriate to do that if the court was not minded to make a custodial sentence order sanctioning Mr Miller for breach. On the other hand if the court was going to make a suspended custodial order or if a custodial sentence was to be passed which was not suspended, then the matter should be adjourned. Nobody has enquired about how long that would take if that was going to be done.
Mr St Quintin, who appears for the claimants, referred to the judgment of Briggs J in JSC Bank v. Solodchenko (No 2), [2012] 1 WLR 350 at [45] which deals with the importance of proceedings of this kind being conducted in the presence of the alleged contemnor. I will not set out the whole of the relevant paragraphs of that judgment. The key point to recognise is that there is a pressing need, in the public interest, for these matters to proceed in the presence of the respondent.
Nevertheless, in my judgment it is appropriate for this matter today to go on without Mr Miller being present. I say that for the following reasons. First, Mr Miller is represented by solicitors and counsel; second, he has, through his legal representatives now admitted that he is in breach of the order and admitted the contempt. Therefore the issue I have to decide today is the question of sanction, and other ancillary matters such as damages and costs. Third I must bear in mind a letter from Mr Miller explaining why he is unable to attend court today and that is because he is the full-time carer for his mother and she is in the late stages of Alzheimer's disease and needs 24 hour hands on care. I should say that the claimants point out that they sought to agree an adjourned hearing date with Mr Miller and they were not able to do so. They treat Mr Miller's evidence that he is unable to attend with some scepticism. Fourth, the alternative would be to adjourn this hearing. This matter has already been on foot since May 2016. Adjournment would cause significant additional costs to the parties and take up further resources of the court by having to have a further hearing. A Bench Warrant could be issued to compel his attendance even before sentencing, but again, that would only add to the costs.
The matter which I need to consider, bearing in mind the breach of order was admitted, is: What is an appropriate sanction?
It is clear that the breaches are proved, and they are also admitted in any case. The breaches only related to single instances in which sound recordings from the claimant's repertoire were played at the Ivory Lounge, but it is manifest on the evidence that they are just examples. The proper inference is that this club has been operating in consistent breach of the orders for a considerable period since the orders were made in March. I cannot say how long the club is open, it probably is not open every night. It is manifest that this case is not about a minor breach of the court's order. In my judgment it is legitimate to take that into account.
I also have in mind the evidence of Mr Oxley's second affidavit. Here there are examples from Mr Miller's Facebook page dated from October and November of this year advertising events at the Ivory Lounge. They show that this club was continuing to operate. Of course, it does not follow that every single track that they played is a sound recording within the PPL's repertoire, but it is highly probable that on most occasions, at least one or two, if not many more, tracks of that kind were played.
For those reasons it is clear, and counsel Mr Reid did not seriously suggest otherwise, that a fine would not be an appropriate sanction and that a custodial sentence is the appropriate sanction in this case.
Mr St Quintin cited some previous decisions of the High Court dealing 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 same sort of order as was made in this case, was sentenced to a custodial sentence of approximately four to six weeks, suspended for a period of about a year to 18 months. As Mr Reid says, of course, each case turns on its facts, but he suggests and I accept that those sentences are indicative of what one could consider in a case of this kind. In my judgment that is right.
However, what matters are the specific facts and in particular, Mr Reid's points made in mitigation in relation to Mr Miller as well as certain aggravating factors which I will mention. First dealing with the mitigation, Mr Reid on instructions has repeated the explanation from Mr Miller that he has significant care and responsibilities for his mother, who is now so unwell that she's been unable to go to the day care centre for two years due to her behavioural problems and Mr Miller also has four children under the age of 18, although he lives apart from them, he has care of them usually for two days a week where he is able to arrange separate cover for his mother, for example, by his brothers. He also says that in relation to his business he has very little (inaudible) in the last months and he is currently undergoing the process of removing himself from the licence and placing himself with another person. He said that he had not properly understood the fact that the business is owned or leased by a limited company, which he asserts is the case, it does not give him answer to these proceedings and in particular to this contempt. I should repeat that of course, as before me now Mr Miller is content to admit it.
His income is extremely...
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