Harry Potter and the Order of the High Court

The man who is suing Harry Potter author JK Rowling and publishers Bloomsbury has been ordered by the High Court to pay £1.6m as security for costs or the claim will be struck out.

The move is indicative of a wider trend on the High Court bench, with judges being encouraged by their peers to take greater control of matters and put a stop to spiralling fees.

The alleged Harry Potter plagiarism matter is a case in point, with Chancery judge Mr Justice Kitchin taking a firm grip on the claim, which has hung around the courts since 2004.

Claimant Paul Allen is the client of DMH Stallard and the trustee of the estate of the late Adrian Jacobs, who died in 1997. It is alleged that in her fourth novel, Harry Potter and Goblet of Fire, defendant Joanne Murray, otherwise known as JK Rowling, plagiarised Jacob’s novel Willy the Wizard.

In the latest hearing all parties opted to bring in junior  barristers to represent them, unlike the strike-out hearing, in which they were represented by silks.

At the strike-out hearing in late July, the claimant’s lawyer DMH Stallard partner Nicholas Kounoupias instructed Blackstone Chambers’ Robert Howe QC, but at the subsequent conditional order hearing Howe was replaced with Hardwicke Buildings’ Mark Engelman.

The defendants made similar moves. Reynolds Porter Chamber (RPC) instructed 3 Verulam Buildings Andrew Sutcliffe QC to represent first defendant Bloomsbury Publishing at the strike out. Meanwhile, Schillings partner Gideon Benaim instructed 8 New Square’s John Baldwin QC for JK Rowling.

At the conditional order hearing it was the juniors turn to take the lead, with William Edwards of 3VB for Bloomsbury and 8 New Square’s Adrian Speck instructed for JK Rowling.

The case has been fiercely fought and in October last year Kitchin J rejected the defendants’ application for a summary judgment on the narrowest terms  subject to a conditional order, which was handed down last month.

The judge has informed the claimant that in order for the claim to proceed to full trial he will need to put up 65 per cent of the defendants’ total costs, and the first instalment of £894,304 should be handed over before 21 April.

According to the judgment the claimant “has made clear he has no connection with the dispute” and stated that in practice, the estate’s literary agent David Markson and an Australian lawyer who acts for estate on a success fee basis, Kevin Foley, have been instructed the claimant lawyers.

The claimant insists he has no financial interest in the outcome of the matter, but, should he lose the battle, he would be liable for costs. It is unsurprising, then, that Benaim raised concerns that the claimant would not be able to pay any costs order made against him.

In support of the defendants’ call for a security costs order, the defendant barristers argued that their opponents had shown a “want of good faith”.

DMH inherited the case in March 2004 from Gibson Young, but no action was taken until 2008 when, in November, the firm instructed counsel. All went quiet for a further seven months and finally, on 15 June 2009, the particulars were filed with the High Court.

It took more than a year for the strike-out application to be heard  and even after Kitchin had left only tiny pieces of the claim intact, the claimant continued to pursue matters that had already been struck out.

According to Kitchin J: “The combination of the delay in pursuing the claim, the complex and wide-ranging way it has been formulated, and the pursuit of aspects of the claim I have found to be unsustainable do demonstrate the lack of a will on the part of those behind this claim to prosecute it as expeditiously as possible in accordance with the overriding objective.”

Yet, the defendants’ lawyers’ behaviour, said Kitchin J, could also be criticised. Originally the defendants both instructed RPC, but JK Rowling had since switched to Schillings and both defendants had instructed separate silks to lead the juniors in the strike-out hearing.

Kitchin J said: “The defendants’ estimates do seem to me to include costs in respect of unduly large numbers of separate fee earners, excessive communications with clients, and unwarranted time for consideration of disclosure and preparing experts’ reports.”

Had the defence been more scrupulous in its spending Kitchin J could well be asking for a higher costs security from the claimant.

For Bloomsibury RPC presented estimated costs of £723,819. Schillings, meanwhile, is expected to present JK Rowling with a legal bill £1.6m.

Compare that the claimant costs of £800,00 to date, with a further £500,000 expected.

Kitchin J’s attempt to make the merry-go-round case come to an appropriate end is admirable. Others sitting in the High Court should pay attention.