Sullivan v Bristol Film Studios
Reference:  EWCA Civ 570;  EMLR 27
Court: Court of Appeal
Judge: Ward, Etherton, Lewison LJJ
Date of judgment: 3 May 2012
Summary: Copyright infringement - music - High Court claim for 800,000 - small number of infringements - maximum damages 50 - case dismissed - Jameel v Dow Jones applied - appeal - challenge to judge's assessment - judge right - but small size of claim not enough to justify dismissal - court to consider if a proportionate means of disposal available
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Instructing Solicitors: Appellant in person; Charles Cook & Co for Respondent
C was a hip hop artist otherwise known as Dappa Dred, who was well regarded and had some success online. He entered into an joint venture agreement with D, a video company, to make a film featuring him, to put online. The film was made and uploaded to YouTube. C did not like it, and required it to be removed. After some 5 days it was.
C issued High Court proceedings D for copyright infringement, breach of statutory duty and ‘loss of a chance’, contending that he had not consented to the appearance of the video on YouTube, and that it had harmed the value of his work. An application by D for summary judgment was dismissed by the District Judge who ordered a trial of 4 preliminary issues on liability, with quantum to be assessed if C won on those issues.
C then applied for injunctive relief ordering delivery up of all infringing materials. D cross-applied for the action to be dismissed as an abuse of process. The deputy Judge held that since D had destroyed or returned all copies of the work save one (which was with D’s solicitors) and had offered satisfactory undertakings in respect of that one copy, the only relief C could obtain at trial was damages. He assessed C’s maximum possible recovery as £50. Applying Jameel v Dow Jones the judge concluded that to pursue the claim for so little money would be disproportionate and he struck it out as an abuse.
On appeal, C accepted that the Judge’s decision was correct, if his maximum recovery was £50 but argued that the Judge’s quantum assessment was wholly wrong.
Was the Judge’s decision to strike out wrong on the footing that he was wrong to assess C’s maximum recovery as £50?
dismissing the appeal, C’s arguments as to quantum were largely faulty, or lacked credible supporting evidence, and the Judge was right to consider the recoverable sums as modest. However (obiter) :-
(1) “The mere fact that a claim is small shouldnot automatically result in the court refusing to hear it at all… The real question … is whether in any particular case there is a proportionate procedure by which the merits of a claim can be investigated. … it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process.” 
(2) The Court must, in accordance with the Overriding Objective, consider at the earliest opportunity the most efficient, cost -effective, proportionate and fair way of resolving the dispute” .
Jameel v Dow Jones considered and explained.
Not every modest claim that would be disproportionately expensive to try will fall to be dismissed as an abuse on that account alone. If the small claims track is available and suits, transfer to that track may be the right response.