Wade & Perry v British Sky Broadcasting Limited
Reference:  EWCA Civ 1214
Court: Court of Appeal
Judge: Briggs LJ, Floyd LJ and Christopher Clarke LJ
Date of judgment: 1 Dec 2016
Summary: Television Format Rights - Breach of Confidence - Confidential Information - Protection of Combination of Features - Inferences Drawn from Findings of Fact - Need to Challenge Evidence by Cross Examination
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Christina Michalos QC (Appellant)
Instructing Solicitors: Payne Hicks Beach for the Appellants
The claim was for breach of confidence in respect of a television format. The Appellants were the Claimants in the action who acted in person at the trial. They conceived an idea for a music talent show called The Real Deal open to all singer-songwriters (ie. individuals and bands who write and perform their own music). Among the key elements of the format were the judges to be well-known singer-song writers; the artists would perform cover versions for the first 4 shows and be whittled down; once artists were known to the audience they would perform an original song of their own composition, and the original song would be made available for purchasing download from the day following the show and would be chart eligible. On 17th June 2009, the Appellants pitched this idea to the commissioning editor of the Respondent (“Sky”). On 12th February 2010, they were informed that Sky had decided not to commission The Real Deal (TRD). Separately, responding to a entertainment tender from Sky, Princess Productions presented a pitch for a new show called Got to Sing; this evolved (via various iterations) into a final show titled Must Be The Music (MBTM) which was first broadcast in August 2010. The Appellants contended at trial that the similarities between MBTM and TRD were as a result of breach of confidence and that Sky must have consciously or subconsciously influenced the development of the MBTM format. At trial, Birss J held TRD format was confidential information but dismissed the claim on the basis that Sky had demonstrated independent creation by considering each element of the format.
1. Whether the Judge had erred in law by (i) only considering the individual elements of the format and failing to compare the combination of ideas in the two programmes as a combination at all and (ii) failing to address the central question of the inherent improbability of two such similar concepts (containing the same combination of ideas) appearing within such a short space of time.
2. Whether the Judge had wrongly drawn inferences of independent creation contrary to the evidence.
3. Whether the Judge had wrongly held there were no gaps in the Defendant’s account.
There was also a Respondent’s notice which contended:
- The Judge was wrong to find TRD format was capable of being confidential information.
- It was not open to the Court to conclude that any aspect of MBTM had been derived from TRD as relevant matters had not been put in cross-examination to witnesses and evidence had not been challenged.
Dismissing the appeal:
- It was well settled that misuse of confidential information in the form of copying need not be conscious or deliberate; elements of a format may be derived from subconscious memory: Talbot v General Televsion Corp Pty Ltd  RPC 1.
- The law was less clear about the analysis required when a combination of elements were alleged to be copied rather than an entire format lock stock and barrel but it was not necessary to resolve this difficulty on this appeal.
- When considering findings of fact and inferences drawn from findings of fact, the Court was bound to follow the principles set out in Assicurazioni Generali SpA v Arab Insurance Group  1 WLR 577 and Fine & Country Limited v Okotoks Limited  EWCA Civ 672..
- Although being “initially attracted” to the submission that the Judge went too far in his conclusion there were “no gaps” in the evidential case about independent creation, the Court of Appeal concluded that this had to be seen in context and there was documentation from which most of the account of independent creation could be gleaned.
- It was appropriate for the Judge to look at the individual ideas in the format first before looking at any combination of them.
- The inferences challenged disclosed no errors of principle and the outcome was not beyond any reasonable range of legitimate response to the evidence.
- It was unnecessary to address the Respondent’s notice as to whether a failure of cross examination disabled challenging certain findings or whether it was a professional obligation not affecting litigants in person. The real question was whether it would be fair or just to conclude issues against a party on grounds of which they had no real notice.
This is the first UK Court of Appeal decision addressing misuse of confidential information in television format rights cases for many years. There are relatively few even at first instance and appeal (including those dealing with copyright infringement): see for example Meakin v BBC  EWHC 2065 (Ch) (Arnold J); Celador v Melville  EWHC 2362 (Ch) (Sir Andrew Morritt VC);) Green v Broadcasting Corp of New Zealand PC (NZ)  2 All ER 1056; and Fraser v Thames Television  QB 44.
It is unfortunate that the Court declined to address the issue of the proper approach when it is alleged a combination of format elements are copied rather than an entire format. The nature of the television industry and the manner in which formats are developed over time means that this is a specialist sub-set of the law of confidential information. Television programme development means that the final broadcast version rarely is identical to the first format. It will inevitably be a case of inference and the law would benefit from clarification as to the correct approach. It is likely that in any future viable claim for breach of confidence this issue will rear it’s head again.
Separately, the brief comments at paragraph  concerning the cross-examination obligation to challenge evidence generally and in particular by litigants in person are interesting. On this issue, Markham v Zipher  RPC 31 was cited in argument but not referred to in the judgment.