Tony D Sullivan (aka Rudey Solomon) v Bristol Film Studios Ltd
Reference:  EWCA Civ 570
Court: Court of Appeal (Civil Division)
Judge: Ward, Etherton & Lewison LJJ
Date of judgment: 3 May 2012
Summary: Copyright - Strike out – Jameel - proportionality
Download: Download this judgment
Instructing Solicitors: Charles Cook & Co Solicitors, Bristol, for D
C was a rap artist with the stage name “Dappa Dredd”. He contacted D to make a music video for him. D shot a video featuring C and uploaded it to You Tube. When C saw the video he did not like it and complained that it had been uploaded without his consent, infringing his copyright and his moral right not to have his work subjected to degrading treatment. D took the video down. It was on You Tube for 5 days. The core of the claim was a loss of chance in that it was claimed that the video damaged the marketing potential of C’s work and prevented him selling more records.
C’s claim was stuck out, not because the claim was bound to fail, but because even if C were to succeed, that costs of fighting the claim were out of all proportion to the amount C was likely to recover. C had valued his claim on the Claim Form at £800,000. The judge assessed the maximum C could possibly recover at £50.
Was the judge correct in assessing the maximum value of C’s claim at £50?
Should C’s claim have been struck out?
(1) The judge was right about the likely scale of C’s potential damages
(2) As was recognised in Jameel in relation to defamation proceedings, it is important that small claims are dealt with by a proportionate procedure. It would be an affront to justice if a small claim were struck out simply because of its size. In principle if one is entitled to £50 one should have access to justice to recover it. It is only where there is no proportionate procedure available that it would be right to strike out such a claim as an abuse of process.
(3) If the true value of the claim had be recognised at the outset it could have been tried in the Patents County Court, however at this stage there was no proportionate means and the judge was right to strike out the case. – In future a judge confronted with a Jameel strike out application should consider whether there is a means by which the claim could be tried without disproportionate expense. In accordance with the overriding objective this should be considered at the earliest possible stage.
(4) The disproportion justifying strike out is not merely the difference between the likely damages and the costs to the parties, but also the costs of the judicial and court resources to be used.
An interesting case on the application of the Jameel principles to low-value cases outside the defamation arena. The court set out some general principles and guidance on case management to ensure that cases are dealt with proportionately from the start; thus avoiding a situation where the costs of a case are grossly disproportionate to the damages that could be obtained. The court explored the balance between safeguarding access to justice for all – including those with small claims – and ensuring that the resources of the court are used appropriately and that costs are not disproportionate.