Be careful when issuing a claim

Austerity raises its head at the Supreme Court.

This case highlights the issues before any litigant in person or indeed Solicitors are instructed to commence a claim for little value. In essence the Supreme Court agreed with the previous Judge and dismissed an appeal against the previous decision to strike out a claim brought by a litigant in person for infringement of copyright, amongst other things.

Aside from the fact that the claim had a real prospect of success, the Appeal Court agreed with the judge that it would be a disproportionate use of the court’s resources to allow a claim which had the potential for the recovery of so little money to be pursued. The claim, which related to unauthorised publication on Youtube for a three-day period of a music video commissioned by, and featuring, the claimant, was for £800,000. However, the judge had assessed the maximum recoverable damages as £50 on the basis that no more than 50 members of the public appeared to have viewed the video, so that any damage to the claimant’s reputation and commercial prospects was negligible. The Court of Appeal agreed that the recoverable damages were likely to be extremely modest, even if liability was established.

The Supreme Court was referred to Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, which had emphasised how important it was to ensure “judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice”. The court here elaborated that the real question is “whether in any particular case there is a proportionate procedure by which the merits of a claim can be investigated”. Only if there is none, would it be right to strike out the case as an abuse of process. In future, judges confronted by an application to strike out a claim because it is not worth enough to justify the use of court resources, should consider whether there is a means by which the claim can be adjudicated without disproportionate expenditure. This might involve transferring it to a more appropriate court or reallocating it to a different track (unless this is precluded by the rules) or both.

Having read the Supreme Court’s reasoning I do feel the Claimant has been unfairly treated. If only he would have limited his damages to £5,000 or less and retained this in the Patent County Court. Judge Birss QC would have dealt with this sensibly. This case underlies just how important your prepping is when issuing a claim. Do not issue lightly, weigh up the potential defendant carefully.

If you’re interested in commercial litigation or intellectual property rights and would like to find out more, please call Michael Coyle on 0800 0862 0157 or email for a free no obligation chat.

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