Victor Lilley (Claimant) Euromoney Institutional Investor Plc and Another (Defendant) Victor Lilley (Claimant) The Chartered Insitute of Management Accountants (Defendant) Victor Lilley (Claimant) Aspermont UK Ltd (Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 16 July 2014 |
| Neutral Citation | [2014] EWHC 2364 (Ch) |
| Docket Number | Case No: HC12 A 01759 Case No: HC12 E 02453 |
| Court | Chancery Division |
| Date | 16 July 2014 |
[2014] EWHC 2364 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Birss
Case No: HC12 A 01759
Case No: HC12 A 01720
Case No: HC12 E 02453
Mr Lilley appearing in person
Dominic Hughes (instructed by Mischon de Reya) for Euromoney and Metal Bulletin
Lindsay Lane (instructed by Collyer Bristow) for C.I.M.A.
Christina Michalos (instructed by Berrymans Lace Mawer) for Aspermont
Hearing date: 3rd July 2014
The claimant in these three cases, Mr Victor Lilley, is an author. In the 1990s he wrote articles for various publications. The publishers of those magazines paid him a fee between about £150 and £450 for each article. The articles were published in the relevant publications. After that copies of Mr Lilley's articles appeared elsewhere. They appeared on the internet. Mr Lilley contends that the publication of his articles on the internet was unlicensed and therefore was an infringement of his copyright. He contends that the defendants are liable for that infringement and he claims damages.
In the three cases with which this judgment is concerned the defendant is the publisher of the relevant magazine. I will refer to the three sets of defendants respectively as Euromoney, CIMA and Aspermont. The number of articles in issue in the three cases varies from three articles each (Euromoney and Aspermont) to seven or perhaps thirteen articles (CIMA). In all three cases Mr Lilley's Particulars of Claim are very long documents. They include spreadsheets in which he articulates his claim for damages. The quantum of damages claimed in the three cases are about £27 million (Aspermont), about £117 million (Euromoney) and about £450 million (CIMA).
There is also a further fourth action which is in substance the same as the other three. In that case Mr Lilley is suing DMG Events Limited for over £900 million in respect of thirty seven articles. That action began in the High Court but, contrary to Mr Lilley's wishes, was transferred to the Intellectual Property Enterprise Court. It came before HHJ Hacon on 12 th March 2014. HHJ Hacon held that the only tenable basis on which a damages calculation could be carried out was a "group 3" calculation (see General Tire v Firestone [1975] 1 WLR 819) and that Mr Lilley had agreed before him that assessed on that group 3 basis the sum due would be £83. On that footing HHJ Hacon struck the action out on the basis of Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75, that it was "not worth the candle". Mr Lilley has applied to set aside that judgment. The application includes allegations of treason, fraud and perverting the course of justice.
It is notable that the damages calculation in each case is advanced on the same basis. For each original article written by Mr Lilley the damages calculation takes the original price of the article and multiplies it up in various ways.
The first step is to calculate the number of infringing instances as far as Mr Lilley is concerned. This is arrived at by counting the number of months the articles appeared on each website for the relevant period. In every case this is a period starting some time in the 1990s and generally ending at a date in about 2006 or 2007. In the CIMA case the end date in some instances is alleged to be in 2011 or 2012. Each month is regarded as a separate instance as if a paper publication was published monthly. An article appearing on a website for twelve months is treated as appearing in twelve issues of the publication. The product is then multiplied by a number representing the number of countries in the world, subtracting a small number of countries. This approach is applied to each article and each website. It produces a number of instances in the millions. In the CIMA case the total number of instances is 4.8m.
Mr Lilley's position is that each instance is a separate infringement and a separate event causing its own distinct damage. For each infringing instance Mr Lilley then charges a fee based on the original price with some reduction. The reduction factor in some cases takes the price per instance to about 80% of the original price. In the CIMA case this produces a figure of about £450m based on seven articles originally published in 1993–1998. The same essential calculation produces the figures I have set out above against Aspermont and Euromoney. Unlike the position found by HHJ Hacon in the DMG case, in the three cases before me Mr Lilley does not accept that even calculated on a General Tire "group 3" basis (which he does not accept is appropriate), his damages would be a sum equivalent to the £83 found in DMG.
In 2013 the Chancellor of the High Court directed that I should be nominated to hear the trial and all case management applications in the Euromoney case. In February 2014 the solicitors acting for all four of the defendants in all four cases wrote to the court and submitted that the claims were closely related and invited the court to manage them together. I directed that the outstanding applications in all four cases (including DMG) be heard today. They raised numerous issues in common and the best and most proportionate way of dealing with them would be to deal with them together. In the end it was not possible to deal with Mr Lilley's application to set aside (rather than appeal) HHJ Hacon's order in the DMG case.
Three days before the hearing, on Monday 30 th June, Sales J heard an application by Mr Lilley to set aside the direction directing the matter should come on today. That was refused. On the day before the hearing (2 nd July) Mr Lilley applied before Mr Justice Mann in the Chancery Applications Court that I should recuse myself from hearing these matters and that the matters should be adjourned. Mann J refused all three applications, that is to say the applications in the three cases: Euromoney, Aspermont and CIMA. He held they were totally without merit.
Before me this morning when the matters were called on at 10.30am Mr Lilley was not in the court. He was outside in the corridor. His position was that to go ahead with the Aspermont or CIMA cases was unfair and that he was not prepared to attend the court to participate in those cases. Since he understood that all three were going to be dealt with together he was not prepared to come into the courtroom.
Via the usher I invited Mr Lilley to come in before any of the matters were called on to discuss the matter with me. Mr Lilley came into court and we discussed how the matters would be proceeded with. Mr Lilley indicated that he wanted some more time to prepare for Euromoney and that he was determined not to attend the hearing in relation to Aspermont and CIMA. I directed that I would hear the Aspermont and CIMA applications first at 10.30am and would adjourn the Euromoney case until 12.15pm. I urged Mr Lilley to attend the hearing in relation to Aspermont and CIMA but he made it clear that he was not prepared to do so because he said it was unfair. He also renewed his application that I should recuse myself from dealing with these matters and that the Aspermont and CIMA matters should be adjourned.
I decided not to adjourn Aspermont and CIMA and to reject Mr Lilley's application that I should recuse myself with reasons to be given in this judgment which will be done below. The next matter was to call on the applications in the CIMA and Aspermont cases. They took place without Mr Lilley being in court.
After dealing with the applications in Aspermont and CIMA, at 12.15pm the Euromoney application was called on and Mr Lilley returned to court.
For each matter, having heard submissions, I told the parties what orders would be made, with the reasons to be given later. This judgment deals with those reasons.
Recusal
Everyone has a right to a fair hearing by an independent and impartial tribunal (Art 6 ECHR). An impartial judge is a fundamental prerequisite for a fair trial or fair hearing of an application and so a judge should not hesitate to recuse himself or herself if there are reasonable grounds on the part of a litigant for apprehending that the judge, for whatever reason, will not be impartial ( Locabail v Bayfield [2000] QB 451 (CA)).
Mr Lilley set out his reasons on this aspect of the matter in a nine page document entitled " Why Birss J should be recused from these 3 cases". It raises numerous points. In his address to me Mr Lilley confirmed that his submission was based on apparent bias rather than actual bias and I will consider it on that basis. When considering an allegation of apparent bias, the approach is to consider whether the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility or real danger that the tribunal was biased ( Porter v Magill [2001] UKHL 67).
Mr Lilley's first point is that I am the person who decided to list the applications in all three cases on one day. Given that there were two applications in the CIMA case, that makes four applications. Mr Lilley submitted that (i) this put him on unequal terms with the various defendants and reduced his mental capacity, (ii) it was physically impossible for him to carry the documents, (iii) I failed to give adequate reasons for my decision, (iv) this was contrary to the overriding objective and was "yet another arbitrary, oppressive and unconstitutional action by servants of the government and the Court" regarding his cases.
I did decide to...
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