Victor Lilley v Chartered Institute of Management Accountants
| Jurisdiction | England & Wales |
| Judge | Mr Justice Roth |
| Judgment Date | 15 March 2013 |
| Neutral Citation | [2013] EWHC 1354 (Ch) |
| Docket Number | Case No: HC12A01720 |
| Court | Chancery Division |
| Date | 15 March 2013 |
[2013] EWHC 1354 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
Fetter Lane
London EC4A 1NL
The Honourable Mr Justice Roth
Case No: HC12A01720
Mr Victor Lilley appeared as a Litigant-in-Person
Miss Lindsay Lane (instructed by Collyer Bristow LLP) appeared on behalf of the Applicant
Approved Judgment
This is an application to strike out the claim in this action brought under CPR 3.4(2)(a) and/or (b) and/or (c), alternatively under the court's inherent jurisdiction.
The respondent to the application (the claimant in the proceedings) is Mr Victor Lilley. He has appeared in person to resist this application, but he is a very articulate individual of obvious intelligence, if I may say so; and he has put in much work on the law which has enabled him to put forward a detailed claim, including the product of his legal research.
I say a "detailed claim": the Particulars of Claim which Mr Lilley has served comprise 12 parts, including schedules of damages that run to some 180 pages, albeit it should be mentioned that they are in a large typeface which has no doubt increased the number of pages involved. It is, with great respect to Mr Lilley, a somewhat convoluted document which refers in turn to many authorities and sometimes to documents that, as it emerged in the hearing, were not served with the Particulars of Claim. If this action were to proceed, it would need to be re-cast into a proper form. But the nature of his case can be ascertained from that document and I was able, with Mr Lilley's assistance, to clarify it at the outset. It may be helpful if I summarise what the case involves, as confirmed to me by Mr Lilley at the opening of this hearing.
Mr Lilley wrote 13 articles about what may generally be described as business and accounting management, particularly with reference to Information Technology ("IT"). He submitted them through his company, Lilley Information Systems Limited ("LIS"), to the editors of the magazine Management Accounting, which is published by the defendant, The Chartered Institute of Management Accountants ("CIMA").
Those 13 articles were submitted between 1992 and 1998. They were accepted for publication and published between May 1992 and December 1998. In each case, in providing the articles to the editors of Management Accounting the submission and the articles themselves stated that they would be provided with "first British serial rights". What I have said so far, appears to be common ground and not disputed by the defendant.
On that basis, Mr Lilley contends that copyright was retained by LIS and that LIS was only giving CIMA a licence for first published publication in the United Kingdom. In particular, it was not giving CIMA the right to sub-license others for further publication, nor to reproduce the articles in electronic form on-line. Copies of all of those articles were in fact published on certain websites that are distributed from the United States. There were four particular on-line distributors involved. One was called the Thompson Gale group, which published through an on-line site called "Access by Library"; they published six of the 13 articles. They, it seems, passed them on or sub-licensed them to an entity called Highbeam, which published nine of the articles. The second of the distributors was Factiva, which published five of the articles. The third has been referred to as EBSCO, which published ten of the articles. Finally, there was ABI Proquest, which published all 13 articles.
The publication by Thompson Gale group was pursuant to an agreement which CIMA had entered into with the Thompson Gale group under its previous name of IAG in 1993. Mr Lilley contends that the on-line publications infringed the copyright of LIS and I think, although not perhaps spelt out with clarity in his Particulars of Claim, he contends that there was a breach of the contract by which he licensed the copyright for first UK printed publication to CIMA, the breach consisting of an agreement that was given by CIMA to these US on-line distributors to republish in electronic form.
Next, he contends that LIS assigned the copyright in all the articles to himself. The details of the assignment are not included anywhere in his lengthy Particulars of Claim, but he showed me the document which he says constitutes the written assignment. That was entered into on 10 August 2007, initially without consideration; and then there was a supplemental agreement with nominal consideration on 8 December 2008.
As assignee of the copyright, Mr Lilley claims damages for infringement. He has obviously considered carefully the leading authority of General Tire & Rubber Co v Firestone Tyre and he says his primary claim is on the basis of a Group 2 approach. It may be that it is more appropriately seen as a Group 3 approach, but in any event he sets out his detailed calculations in schedules included with his Particulars of Claim. It is striking that he alleges that the damages to which he is entitled are over £450 million.
He also includes an additional claim for damages for what he calls "unlawfully resisting the infringement claim". That is explained in Part 1 of his Particulars of Claim at para 10 as follows: "…apart from the defence being wrong, the defendants have wasted LIS' time [and I presume he now says his time] because of failing to give adequate reasons and authorities." And, he says, "this is claimed as negligence or failing that, attempted deceipt or whatever tort the court deems appropriate".
The claim form was issued on 26 April 2012, naming a single defendant, Mr Charles Tilly, who is the Chief Executive of CIMA. On 24 August 2012, and thus within the four months validity of the claim form, Mr Lilley purported to serve it on the solicitors to the present defendant. However, they responded that they were not authorised to accept service on behalf of Mr Tilly. By that stage, Mr Lilley had applied to the court to amend the claim form to delete Mr Tilly and substitute CIMA and with his letter he sent a draft of the amended claim form, since he had not yet received a stamped claim form issued by the court.
He received the issued claim form very shortly afterwards on 29 August 2012. It bears the stamped date of 9 August and it appears that there had been delay in sending it to Mr Tilly, no doubt because of shortage of staff over the summer holiday period. On that same day, Mr Lilley served it on the defendant's solicitors, who of course were authorised to accept service on behalf of the defendant. Since the original claim form was issued on 26 April, by the time Mr Lilley came to serve it in the amended form it was therefore out of time under CPR 7.5.
Mr Lilley has not applied for an order extending the period for compliance pursuant to rule 7.6. The first point taken by Ms Lane on behalf of CIMA is that, therefore, the claim was not served within time and it should be struck out on that ground. She acknowledged this is a somewhat technical point in the present case, but normally an application to extend time must be made and made promptly within the time for service.
I think it is appropriate for the court nonetheless to grant an extension of time to Mr Lilley. I say that because it is clear that he was endeavouring to get the claim form amended within the four month period. Given that the court issued it on 9 August, he had obviously sent his application before 9 August. He was also diligent in sending it to the defendant by way of service as soon as he had received it. It follows that it could be inferred that if he had received it before 26 August he would have served it before 26 August. And most significantly of all, in my view, in his letter to the defendant's solicitors of 24 August he sent the amended claim form in unsealed form and, therefore, the defendant had full notice within the four month period that an amended claim form was about to be served.
I consider, taking all that into account for a litigant-in-person, it is appropriate to extend Mr Lilley's time.
The next point that was taken is that the substitution of CIMA for Mr Tilly is one that in so far as it occurs after the limitation period requires the permission of the court pursuant to CPR 19.5; moreover, CPR 19.5(2) restricts the circumstances in which such substitution may be permitted. This only arises on the assumption that the period of limitation under the Limitation Act 1980 had expired. I shall return to that when considering the limitation defence, but for this purpose I shall assume that CPR 19.5 is engaged.
I should also make clear that in so far as Mr Lilley is claiming for violations that occurred within six years of the issue of the claim form, he does not need permission and, therefore, for any breaches or infringements in that period there is no problem about the substitution. The issue concerns those that would otherwise be time barred.
Rule 19.5(2) says that the court may add or substitute a party only if "(a) the relevant limitation period was current when the proceedings were started; and (b) the addition or substitution is necessary". I will assume for this purpose that the limitation period was current when the proceedings were started and turn to the second ground of necessity. That is explained in paragraph (3):
"The addition or substitution of a party is necessary only if the court is satisfied that… (a) the new party is...
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