Jane Lambert
Chancery Division (HH Judge Keyser QC) Happy Camper Productions Ltd v British Broadcasting Corporation [2019] EWHC 558 (Ch) (11 Feb 2019)
I am grateful to
Mr Iain Connor of Pinsent Masons for bringing this case to my attention in his presentation to the International Copyright Law Conference entitled
Key Case Law Update, Critical Developments in 2019 on 3 Dec 2019.
This was an application for an
interim injunction to restrain the BBC from broadcasting the first episode of
Pitching In. It was a drama about the owner of a caravan park in North Wales. The applicant alleged that it infringed copyright in the script for a TV programme (or alternatively a film based on the script) about the owners of a holiday camp in West Wales that had been written by the directors of the claimant production company. The application was made the day before
Pitching In was due to be broadcast. Cancelling the transmission could have cost the BBC £130,000 in rescheduling costs and a great deal more in reputational damage.
An injunction is an order of the court to do or refrain from doing something. In Scotland, such an order is known as an
interdict. In the United Kingdom, disobeying an injunction or interdict is a contempt of court which can be punished by a fine or imprisonment. In Wales and England, an injunction can be awarded after a trial when the parties' rights and obligations have been determined to prevent further infringement of the successful party's rights. That is known as a "final injunction". But an injunction can also be granted at the beginning of the court proceedings before those rights and obligations have been determined to prevent irreparable harm to one or more parties in the period between the issue of proceedings and the trial of the action. Injunctions of that kind are known as "interim injunctions."
As the court does not know for sure how an action will end, an applications judge in Wales or England will grant an interim injunction only if he or she is satisfied that the applicant could win and that the respondent could not compensate the applicant adequately by paying damages. That may be for many reasons. Possibly the respondent would not have the means to pay any damages. Alternatively, it may be impossible to assess the full extent of the loss because records might not be kept or evidence would be missing. There are also some kinds of loss for which no amount of money would be adequate recompense.
If damages will not be an adequate remedy for the applicant, the court will consider the position of the respondent if it grants an injunction and the order turns out not to have been justified. In most cases, the respondent would simply be delayed for the period between the start of the proceedings and their resolution which can be compensated by the applicant. In nearly every case an applicant will be required to promise to pay damages to the respondent if the injunction turns out not to have been justified. That promise is known as a "cross-undertaking in damages," In those circumstances, the court has to consider whether the applicant could afford to pay such damages if ordered to do so and whether those damages would be adequate compensation for the respondent. All of those factors were considered by the House of Lords in
American Cyanamid Co. v Ethicon Ltd [1977] FSR 593, [1975] 1 All ER 504, [1975] 2 WLR 316, [1975] UKHL 1, [1975] AC 396.
His Honour Judge Keyser QC, who heard Happy Camper Productions Ltd.'s application against the BBC, referred to that case at paragraph [17] of his judgment (see
Happy Camper Productions Ltd v British Broadcasting Corporation (BBC) [2019] EWHC 558 (Ch) (11 Feb 2019)). He said:
"The test to be applied is accordingly the familiar test in American Cyanamid Co (No 1) v Ethicon Ltd [1975] AC 396. In very broad terms, the purpose of the exercise, without adjudicating on the case, is to seek to ensure that if one makes a mistake it is the least bad mistake one can make, in this sense: one is concerned with the question, Is it worse to have granted an injunction on an interim basis if ultimately it should be found that there is no entitlement to an injunction, or to have refused an injunction if ultimately it should be found that there is an entitlement to an injunction? That is the broad idea behind the test."
His Honour appears to have concluded that the "least bad mistake" would be to refuse Happy Camper Production's request for an interim injunction and his reasons were as follows.
First, he had serious doubts as to whether the claimant could win. The production company was formed after the script for the claimant's show had been written which meant that the authors did not write it in the course of their employment and there was no evidence that any copyrights had been assigned to it. More seriously there was not much evidence of copying. The producer of the BBC's programme had been given a copy of the claimant's script but there was little evidence that she had actually read it. There was even less that she, the BBC or its programme makers had copied it. The setting of both works in a caravan park in Wales was the main common feature but the plots and characters were very different. Moreover, although the learned judge did not mention these cases, it is not easy to protect the format of a TV show (see
Green v Broadcasting Corporation of New Zealand [1989] UKPC 26 (18 July 1989)
, Fraser v Thames Television [1984] QB 44 and
Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd and another [2017] EWHC 2600 (Ch) (19 Oct 2017)).
Secondly, Judge Keyser thought that the claimant could be compensated adequately by an award of damages were its directors to prevail. Those authors had submitted their manuscript to the BBC in the hope of licensing it. Am award of damages could be based on the licence fee that would have been negotiated by the parties had the script been accepted.
Thirdly, pulling the programme the day before its first transmission o
f Pitching In would have been very damaging to the BBC and there was a serious question mark as to whether the claimant could even meet the immediate cost of rescheduling its programmes. Injunctions are an equitable remedy and there is a maxim that delay defeats equity. The claimant knew about the corporation's plans to broadcast
Pitching In for 6 months but had held back until the very last moment before launching this application. As the judge remarked, that was "dreadfully late".
Anyone wishing to discuss this article, copyright or interim injunctions generally may call me on 020 7404 5252 during office hours or send me a message through my
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