Tony D Sullivan (Aka Rudey Soloman) v Bristol Film Studios Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Etherton,Lord Justice Ward |
| Judgment Date | 03 May 2012 |
| Neutral Citation | [2012] EWCA Civ 570 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2010/2517 |
| Date | 03 May 2012 |
[2012] EWCA civ 570
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(BRISTOL DISTRICT REGISTRY)
Mr John Jarvis QC (Sitting as a Deputy High Court Judge)
OBS90200
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Etherton
and
Lord Justice Lewison
Case No: A3/2010/2517
Mr Tony R Sullivan (aka Rudey Soloman) appeared in person (Appellant)
Mr Benet Brandreth (instructed by Charles Cook & Co Solicitors, Bristol ) for the Respondent
Hearing date : 25 April 2012
On 14 September 2010 Mr John Jarvis QC, sitting as a judge of the Chancery Division in Bristol, struck out Mr Soloman's claim. He did so, not because the claim was bound to fail, but because even if it were to succeed the costs of fighting it were out of all proportion to the amount that Mr Soloman was likely to recover. With the permission of Kitchin LJ Mr Soloman appeals.
Mr Soloman is self-represented. He put an enormous amount of work into the presentation of his appeal for which we were all grateful. He put his points fluently and clearly. Mr Benet Brandreth appeared for Bristol Film Studios Ltd ("BFS").
Because the claim was struck out at a preliminary stage, no facts have been found. The background to the claim, in what I hope is uncontroversial language, is as follows. Mr Soloman is a hip hop artist who performs rap music and is well-known in the field. His stage name is "Dappa Dred". He has already produced tracks which have been put on the internet one of which was officially viewed by some 35,000 people. He may have uploaded as many as 30 tracks onto the internet. He has been interviewed in specialist magazines, and is well regarded. However, he does not have the cash available to fund the promotion and marketing of his work.
In 2009 Mr Soloman contacted BFS, who as their name suggests, make films. Mr Soloman asked BFS to make a video for him. The video was to be a digital video recording added to a sound recording of a track that Mr Soloman had made. Mr Soloman was also to appear in the video. Mr Soloman would not pay anything up front. BFS' reward would come in a profit share from future sales of the video to the public. BFS shot a video which featured Mr Soloman among the performers. On about 21 November 2009 BFS uploaded the video onto You Tube and sent Mr Soloman a link so that he could view it. However, the link did not work; and so BFS took down the video and uploaded it again with a new link. Mr Soloman viewed the video. He did not like what he saw. He also complained that BFS had uploaded the video to You Tube without his consent, thereby infringing both his copyright and his performance right and also infringing his moral right not to have his work subjected to degrading treatment. BFS responded by removing the video from You Tube on 26 November 2009. By 30 November BFS had deleted all copies of the video on their system. The video had remained on You Tube for some 5 days. BFS claim that the video was in fact uploaded to You Tube with Mr Soloman's consent; but Mr Soloman disputes that. For the purposes of this appeal I will assume that Mr Soloman is right about that issue.
Mr Soloman began proceedings in the High Court in Bristol on 3 February 2010. His claim form put the value of his claim at £800,000. The causes of action relied on in his statement of case (which he drafted himself) were breach of statutory duty, infringement of copyright and what he called loss of a chance.
The nub of the complaint about infringement of copyright and performance right was the presence of the video on You Tube for five days. The nub of the complaint about loss of chance was that the video had damaged the marketing potential of the work, and had, in some way, prevented him from making and selling more records and LPs.
On 28 June 2010 the claim came before DJ Watson. He refused to give summary judgment against Mr Soloman. He must therefore have thought that Mr Soloman's claim had a real prospect of success. At that stage there was no real investigation of the value of Mr Soloman's claim; so DJ Watson must have taken it to have been worth what Mr Soloman said it was worth. He transferred the claim to the Chancery Division, allocated it to the multi-track and identified four preliminary issues to be tried. These preliminary issues would, in effect, dispose of liability, leaving quantum to be assessed in the event of success for Mr Soloman. The time estimate for those issues was one and a half days. DJ Watson struck out a part of Mr Soloman's Particulars of Claim and also gave BFS liberty to apply to strike out the remainder after determination of the preliminary issues. DJ Watson's order has not been appealed. In my judgment this court must also assume that Mr Soloman's claim has a real prospect of success. I note also that the time estimate given by the court was one and a half days. That time estimate has not been changed by the court, although BFS assert that it may not be enough even for the trial of the preliminary issues.
In August 2010 Mr Soloman applied for an injunction under section 99 of the Copyright Designs and Patents Act 1988 ("the CPDA") requiring delivery up of all infringing materials. That application was ordered to be heard on 14 September. On 8 September 2010 BFS applied to strike out the claim as an abuse of process; and for that application also to be heard on 14 September. Both those applications came before the deputy judge on that day.
Before coming to the judge's judgment I should refer to some procedural criticisms that Mr Soloman made. He says that the application was an ambush because he did not receive the bundle on which it was based until the Friday before the hearing (which took place on a Tuesday); and did not receive the skeleton argument until the day of the hearing itself. Mr Soloman pointed to the rules for the service of evidence on an application for summary judgment under CPR Part 24. But this was not an application under CPR Part 24. It was an application under CPR Part 3.4 and Part 23. So service of evidence was governed by CPR 23.7. The evidence appears to have been served in accordance with that rule, and the skeleton argument was e-mailed to Mr Soloman before the weekend. In addition the judge gave Mr Soloman time to read the skeleton argument; and in addition Mr Brandreth, then as now appearing for BFS, repeated his submissions orally at length. Mr Soloman says that he was told that he should not interrupt or cross-examine Mr Brandreth. That is not a subject for complaint: it is the normal way in which applications are conducted. Mr Brandreth was not a witness: he was and is an advocate. The judge also gave Mr Soloman ample time to make his own submissions. In his written material Mr Soloman complains of bias in the way that he was questioned by the judge. But we have not been shown any example of the alleged bias. I am not persuaded that there was any procedural irregularity such as to make the decision unjust. Moreover, all these alleged irregularities have in practical terms been cured by the time that Mr Soloman has had to mount and prepare his appeal. The only live question as it seems to me is whether the judge's decision was wrong.
Mr Soloman also said that the power that the judge exercised under CPR Part 3.4 was only a power to strike out a statement of case and could not have been used to strike out his whole claim. However, the phrase "statement of case" is defined by CPR Part 2.2 as including a claim form as well as Particulars of Claim. In my judgment therefore the power to strike out a statement of case includes a power to strike out a whole claim, consisting of the claim form and its accompanying Particulars of Claim.
The judge said that he could not conclude that Mr Soloman's case was so weak that it could not succeed. This was, of course, in line with what DJ Watson had already decided. He therefore considered the question of abuse of process without regard to the merits of the case. In other words, he considered the question on the assumption that Mr Soloman would succeed (or at least had a real prospect of succeeding) in his claim.
On that assumption the judge went on to consider what Mr Soloman would be likely to recover if his claim succeeded. He first considered the claimed injunction. He said that BFS already destroyed or returned all Mr Soloman's material; with the exception of only one copy of an MP3 file of the original recording. They had given that to their solicitors for the purposes of the litigation. They were willing to undertake not to use that copy without further order of the court. The judge concluded that there was no further relief that Mr Soloman could seek under that head. Mr Soloman did not challenge that conclusion.
The judge then turned to consider the question of damages. He considered the evidence about what had happened during the short period that the video had been viewable on You Tube. There was evidence before him that showed that during the period that the video had been posted on You Tube it had been viewed nearly 100 times. That is not to say that it had been viewed by 100 different people, because You Tube only records "hits" which may be multiple hits by the same person. But the judge concluded that apart from BFS' own personnel a maximum of some 50 people had seen the video. He assumed, in Mr Soloman's favour, that the video in its unfinished state was "derogatory" treatment within the meaning of the CPDA. He reasoned...
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