Judgment call comment
18 March 2013
(1) Nigel Waterson v (1) Stephen Lloyd MP; (2) Rebecca Carr.  EWCA Civ 136. Laws LJ; Richards LJ; McCombe LJ. 28 February 2013
Political opponents who had disseminated publications about a Member of Parliament’s expenses claims were entitled to rely on the defence of honest comment in a resulting libel claim. References to the expenses claims being “scandalous” did not involve any statement that the MP had broken the law or the parliamentary rules, or had been required to repay sums previousl claimed. The publications simply stated what the MP had claimed and the writers’ view on that.
For the appellants (1) Stephen Lloyd MP; (2) Rebecca Carr
One Brick Court’s Richard Rampton QC; One Brick Court’s Ian Helme; Goodman Derrick partner Nigel Adams
For the respondent (1) Nigel Waterson
5RB’s Desmond Browne QC; 5RB’s David Hirst; Irwin Mitchell partner Mark Elder
Stephen Hunt (liquidator of Ovenden Colbert Printers Ltd) v (1) Andrew Hosking; (2) Lorraine Hosking; (3) Johannah Mcsweeney; (4) Carol Hosking; (5) Beth Rees; (6) Joanne Temple; (7) Philip Thompson; (8) Leonard Colbert; (9) Natalie Waugh.  EWHC 311 (Ch). Peter Smith J. 22 February 2013
A liquidator’s claim based on alleged transactions at an undervalue was bound to fail where there had been no transactions between the company in liquidation and the individual upon which the Insolvency Act 1986 s.238 could bite.
For the applicant Stephen Hunt (liquidator of Ovenden Colbert Printers Ltd)
3 Hare Court’s Simon Davenport QC; 9 Stone Buildings’ Peter Shaw; Stevensdrake partner Gavin Pickering
For the first respondent (1) Andrew Hosking
South Square’s Stephen Robins; Cameron McKenna partner Duncan Aldred
Conflict of laws
Joint Administrators of Heritable Bank plc v Winding Up Board of Landsbanki Islands HF.  UKSC 13. Lord Hope JSC (deputy president); Lord Walker JSC; Lord Kerr JSC; Lord Reed JSC; Lord Carnwath JSC. 27 February 2013
A Scottish credit institution could, in administration proceedings in Scotland, set off its claims against the claim of an insolvent Icelandic credit institution, even though its claims had been extinguished under Icelandic law for the purposes of the latter’s winding-up in Iceland.
For the appellant The Winding-Up Board of Landsbanki Islands HF (Appellant) (Scotland)
South Square’s David Alexander QC; South Square’s Stephen Robins; 18 St John Street Chambers’ Paul O’Brien; Morrison and Foerster (UK) partner Kevin Roberts
For the respondent Joint Administrators of Heritable Bank plc
South Square’s Gabriel Moss QC; South Square’s Martin Pascoe QC; Axiom Advocates’ Sarah Wolffe QC; South Square’s Georgina Peters; Freshfields Bruckhaus Deringer partner Nick Segal
Novasen SA v Alimenta SA.  EWHC 345 (Comm). Popplewell J. 27 February 2013
The default clause in the Federation of Oils, Seeds and Fats Associations’ Contract 201 did not mean that damages due to a buyer were to be calculated without reference to matters occurring after a seller’s breach of contract. That would mean that the buyer could receive damages where it had not actually suffered a loss, and the contract terms did not clearly provide for such a result.
For the claimant Novasen
Stone Chambers’ Mark Jones; Marine Law Solicitors partner Joe Crewdson
For the defendant Alimenta
20 Essex Street’s Lawrence Akka QC instructed by Liberty Commodities Ltd
Universal Project Management Services Ltd V (1) Fort Gilkicker Ltd; (2) Ian Pearce; (3) Fort Gilkicker Properties Ltd.  Ewhc 348 (Ch). Briggs J. 26 February 2013
The multiple derivative action survived the coming into force of the Companies Act 2006, and the precise nature of the corporate body which owned the wronged company’s shares and which was intending to bring such an action was of no legal relevance, provided that it was itself in wrongdoer control and had at least some members who were interested in seeing the wrong done to the company put right. On that basis, a member of a limited liability partnership owning all of the shares in an allegedly wronged company was granted permission to continue a multiple derivative action.
For the applicant Universal Project Management Services Ltd
New Square Chambers’ James Bailey; Olephant Solicitors partner Jan Mugerwa
For the respondents (2) Ian Pearce; (3) Fort Gilkicker Properties Ltd
39 Essex Street’s Marion Smith; DWF partner Andrew Whalley
(1) EMI Records Ltd; (2) Infectious Ltd; (3) Liberation Music Pty Ltd; (4) Polydor Ltd (5) Simco Ltd; (6) Sony Music Entertainment UK Ltd (7) Universal Music Operations Ltd (8) Virgin Record Ltd; (9) Warner Music UK Ltd (10) Weainternational Inc v (1) British Sky Broadcasting Ltd; (2) British Telecommunications plc; (3) Everything Everywhere Ltd; (4) TalkTalk Telecom Group plc; (5) Telefónica UK Ltd; (6) Virgin Media Ltd.  EWHC 379 (Ch). Arnold J. 28 February 2013
The court issued a blocking injunction requiring six internet service providers to block customers’ access to three peer-to-peer file-sharing websites. The service providers knew that customers were using the services to download copyrighted sound recordings without permission, and a blocking injunction was proportionate in the circumstances.
The claimant record companies sought an injunction requiring the defendant internet service providers to block customers’ access to peer-to-peer file-sharing websites. The claimants were members of BPI (British Phonographic Industry), and were acting on behalf of themselves and other members.
They owned copyright in a number of recordings that had been downloaded without permission by users of three file-sharing websites. The websites were substantial profit-making businesses and operated as BitTorrent indexing websites, providing an organised directory of content users could download.
When users downloaded a file the BitTorrent software used the information in the torrent file to download the pieces of the content file from the “swarm” of other users.
The claimants’ expert had monitored the activities of peer-to-peer users in the UK and notified D of 4,299,992 instances in which their services had been used for the illegal downloading of the works of BPI members. The claimant’s applied for an order under the Copyright, Designs and Patents Act 1988 s.97A.
Section 97A empowered the High Court to grant an injunction against a service provider where that service provider had “actual knowledge of another person using their service to infringe copyright”. In order for the court to have jurisdiction to make the orders sought, four matters had to be established: that the defendants were service providers; that users and/or operators of the websites infringed copyright; that users and/or operators of the websites used the defendants’ services to do that; and that the defendants had actual knowledge of it.
The defendants were clearly service providers. UK users of the websites who had accounts with the defendants had infringed, and continued to infringe, the claimants’ copyrights by copying sound recordings on a large scale without permission.
The users of the websites who were uploaders also communicated the claimant’s sound recordings to the public because they made the recordings available by electronic transmission in such a way that members of the public could access the recordings at a place and time individually chosen by those members of the public.
The recordings were made available to all other users of the websites, a large and indeterminate class of people, without having to purchase them from authorised sources.
The operators of the websites communicated the recordings to a new public by intervening, in full knowledge of the consequences of their actions, to give others access to the claimant’s copyright works.
The websites were not passive repositories of torrent files. They went to great lengths to facilitate and promote the download of files by their users. The files were conveniently indexed to give the means necessary for users to infringe.
Infringement was not merely an inevitable consequence of the provision of the torrent files by the websites, but it was also their objective and intention.
The websites attracted users and benefited from substantial advertising revenues.
They had frustrated international investigations, concealed the identities of their operators and evaded copyright enforcement actions. The obvious inference was that those steps were borne of an awareness of their infringing activities.
BPI’s attempts to secure the co-operation of the operators in the removal of infringing content had proved futile. The operators sanctioned, approved and countenanced the infringement of copyright committed by their users. They were jointly liable for the infringements committed by the users.
The court was satisfied, on the evidence, that both the users and the operators of the websites used the defendants’ services as internet service providers to infringe copyrights.
The defendants had been told by the claimants’ expert that their services were being used for copyright infringement. They had also received notification from BPI and had been served with the evidence in support of the claimant’s application. The defendants therefore had actual knowledge that users/operators of the websites used their services to infringe.
The defendants had been the subject of blocking orders in the past, and already had available the technical means of complying with such orders. The cost of compliance was therefore modest. The orders sought by the claimants were proportionate for similar reasons to those given in Twentieth Century Fox Film Corp v British Telecommunications plc  EWHC 1981 (Ch) .
For the claimants (1) to (10)
- Ian Mill QC, Blackstone Chambers
- Edmund Cullen QC, Maitland Chambers
- Tom Richards, Blackstone Chambers’
- Shane Sibbel, Blackstone Chambers
- Andrew Forbes, partner, Forbes Anderson Free
The defendants did not appear and were not represented
Robert Howe QC
Mr Justice Arnold’s decision represents the latest skirmish in the battle by content owners against internet piracy, in which EMI and others (representing the BPI) have again obtained website blocking orders, this time against a number of sites offering “BitTorrent services”.
BitTorrent is a sophisticated form of file sharing that allows large quantities of music and films to be shared and downloaded in pieces from “swarms” of other users who have copies on their computers. It is much faster than one-to-one file sharing and makes it much harder to pin the sharing on a single user.
There are a number of innovative features to the decision. First, although service providers have in the past sometimes opposed these orders on grounds of costs and inconvenience, this time they did not, simply leaving it to the court to satisfy itself that it had the necessary jurisdiction and that the proposed orders were proportionate.
Next, partly as a result of this, EMI was able to use the speedier and more efficient Part 8 procedure, and ask the court to determine the case on the papers - which Arnold J decided was appropriate.
Last, Arnold J’s judgment provides a useful summary and update on the law in this area, covering such issues as the scope and place of commission of infringement by communication to the public, authorisation, joint tortfeasance, and principles applicable to the discretion to make this type of order.
There are rumours of an Arnold J judgment that is fewer than 100 paragraphs long. This is not it, and none the worse for that.
Robert Howe QC, Blackstone Chambers