Williams v Settle
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WILLMER,LORD JUSTICE HARMAN |
| Judgment Date | 30 May 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0530-2 |
| Court | Court of Appeal |
| Date | 30 May 1960 |
[1960] EWCA Civ J0530-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Sellers
Lord Justice Willmer
Lord Justice Harman
MR. NEIL LAWSON, Q.C., and MR. T. TAN PAYNE, Instructed by Messrs, Blundell, Baker & Co., agents for Messrs. Brighouses (Southport), appeared for the Appellant (Defendant).
MR. DIMITRY TOLSTOY, Q.C., and MR. L. J. BELCOURT, instructed by Messrs. Michael Kramer & Co., appeared for the Respondent (Plaintiff).
On the 17th December, 1959, his honour Judge Blagden, sitting in the Westminster County Court, awarded the plaintiff £1,000 damages against the defendant. The defendant appeals, alleging, first of all, that the learned Judge, sitting in the county court, had no Jurisdiction to award damages in excess of £400 and, if he had, they were excessive, that is to say excessive because they were too much in themselves for the wrong done and because they had also an element in them of what is described in the notice of appeal as vindictive damages, and it was said, too, in the course of argument that in what 1 will describe as some minor matters the learned Judge misdirected himself on the evidence.
The defendant who here appeals is a photographer carrying on business in Southport. It appears that in the course of that business, which may not have been a very extensive one, he took some photographs of the plaintiff's wedding on 22nd August, 1956, and, indeed, he produced quite a handsome album of photographs of that occasion. These photographs were taken, as the learned Judge has found, and as is no longer in dispute, at the request of the plaintiff made through the agency of his present wife, his then fiancee, and it appears they were ultimately paid for by the wife's father, a Mr. Eaker. It is not contested that the copyright of those photographs was in the plaintiff.
Most unfortunately, in June of 1958, the bride's father, Mr. Baker, was missing from his home in the course of, 1 think, his business excursions, and was some little time after found to have been murdered. It is that most untoward incident that has given rise to this litigation.
Somehow some members of the press learned of these photographs taken by the defendant of the wedding, and no doubt they thought that they might include a photograph of the bride's father, Mr. Baker, who had then become a matter of public interest, I suppose, as far as the press regarded it. The defendant was approached I might say he was besieged by some press reporters, in order to get, it was said, a photograph of Mr. Baker. What they in fact obtained from the defendant was, amongst other things, a wedding group including the plaintiff. The defendant seems to have produced some prints of several photographs, for which he was paid, some £15, which seems rather a lot of money Just for a few prints from negatives which had come into existence some time before.
The use that was made of one of the photographs, a use of which the plaintiff, who holds the copyright, complained, was that It appeared In two separate daily papers on 2ptn June, 1958. The learned Judge made strong, but by no means too strong, comments about at least the distaste and lack of consideration an those two papers producing this photograph In those circumstances, it was of quite considerable size, 5½ ins. by 4½ ins., and I think in both papers there were captions which did not remove any of the sting of the photographs, and the names, in certainly one of the papers, were given of those who were depicted on the photographs. As the learned Judge found, these publications of those photographs in those distressing circumstances were calculated to wound and hurt the plaintiff as well as members of his family who were concerned with it. The plaintiff was the one who had the copyright, and was entitled to have that copyright safeguarded and not broken in the way in which the defendant did break it.
The matter was aggravated, 1 think, in the course of the trial (and indeed we have seen them) by letters which were written on behalf of the defendant at one time trying to Justify his conduct, and when it was revealed at the trial that if all the reporters wanted was a photograph of Mr. Baker there was one negative where Mr. Baker, while not alone, was in a group of others, but, as it happened, he was so detached from the others that his picture could well have been removed from that photograph and been utilised separately.
The defendant, without question, knew what use was going to be made of the prints which he was supplying in breach of his duty. He knew that at the time, and he must be held responsible for the hurt which came to the plaintiff by reason of the use which was made, as the photographs were distributed widely through the medium to which he had supplied them. The Judge regarded this as a shocking case and awarded the sum of £1,000 damages, as he said as punitive damages, that is to say damages increased above what would be reasonable compensation for the hurt feelings by an element of punitive damages as well.
Points nave been taken, as 1 indicated, to show that the damages were excessive, for various reasons.
The first one which was advanced was that, this being an action tried in the county court, the county court Jurisdiction admittedly being limited to £400, that was the limit of damages which could have been awarded in any event, it was further said that even £400 would have been excessive. But this action was not commenced in the county court and therefore, on the face of it, was not limited by the county court's limits on Jurisdiction. It was commenced in the High Court on 13th August, 1958, by a writ, and the pleadings (the statement of claim and defence, further and better particulars and various interrogatories) all followed under the procedure of the High Court.
Then there came a time when it was desired by the plaintiff to transfer this action from the high Court to the County Court. The summons to that effect was dated 15th January, 1959, and was the common form of a summons for directions and which by the material paragraph requested that the place of the trial shall be the Westminster County Court.
On the next day, the 16th January, that summons of the 15th was sent to the solicitors for the defendant with a letter which contained this sentence; "We shall be pleased to hear that you are willing to give the particulars and agree to the action being transferred to the Westminster County Court as otherwise it will be necessary for us to put the summons in counsel's list".
On 23rd January, 1959, the defendant replied: "We have heard today from our professional clients that they have no objection to this action being transferred to the Westminster County Court."
In due course the summons came up for hearing and an order was made by the Master at the request of the parties to this effect (it being dated 2nd April, 1959) "It is ordered that the action be by consent transferred to Westminster County Court and the costs of this application be in the discretion of the county court Judge".
It has been argued by the appellant before this court that the transfer to the county court must be held to have taken place under section 45 of the Act of 1934, which was in force at the material time. It is submitted on behalf of the plaintiff in reply to that argument that the proceeding took place under section 43 of the 1934 Act and thereby it was a transfer of a High Court action for trial in the County Court, a claim for an unliquidated amount with unlimited Jurisdiction. Various matters have been discussed to ascertain what was in the minds of the parties when they agreed to transfer this action to the county court.
It does not seem to me very profitable to try to resolve what they respectively had in mind and whether either of them applied their minds to which section was the appropriate section for the transfer. Having looked at the two sections I am ready without hesitation to accept the submission made by Mr. Tolstoy on behalf of the plaintiff that section 45, on the facts of this case, does not seem to be appropriate and that the terms of section 43 have, by what took place, been fulfilled, and that is the section which it is appropriate to hold was the section under which this action in the High Court was transferred to the County Court.
Section 45, which I need not read, relates to transfers where the amount in the High Court action remaining in dispute is within the county court jurisdiction or has fallen within its Jurisdiction by reason of what has taken place, so that it would come under the present total sum of £400.
Section 43 is of a different character and it reads as follows: "if, with respect to any action assigned for the time being to the King's Bench Division of the high Court, the parties to the action agree, by a memorandum signed by them or by their respective solicitors, that a county court specified in the memorandum snail have Jurisdiction in the action, that court shall have Jurisdiction to hear and determine the action accordingly". That, excluding as it does proceedings in the Chancery Division and proceedings in the Probate, Divorce and Admiralty Division, applies clearly to those actions which fall within the Jurisdiction of the Queen's Bench Division, as an action for copyright in fact does.
Has there, then, been an agreement? Have the parties agreed by a memorandum signed by them or by their respective solicitors?
The point was taken by learned counsel for the appellant, Mr. lawson, and has been advanced still further by Mr. Payne, his Junior, that that section requires a memorandum of the agreement to be in one document only, and, recognising that that has not been a requirement for a note or memorandum in writing...
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