Allen Carr's Easyway International Ltd v Trimmer (t/a Quit Easy)

Copyright claims for copying and public performance require separate proof. Copying substantial passages into an audio recording does not, without evidence, establish that those passages were performed in therapy sessions. The claimant bears the burden of proving substantial performance; suspicion or inference from the recording is insufficient where the evidence does not show whether, when or how the material was used. Whether a performance is in public is an ordinary-language, fact-sensitive question to be approached with common sense. Small sessions may fall outside the statutory concept. An appellate court should not interfere with a trial judge’s conclusion reached on a correct self-direction and direct evidence unless there is a real prospect that the conclusion is wrong.

The claimant operated a franchised smoking-cessation method and supplied the defendant with a manual for use in therapy sessions. After the franchise ended, the defendant continued operating independently and made an audio recording containing parts of the manual, which he distributed to clients.

The High Court awarded £125 for copying the manual in making the recording, but dismissed the claims concerning confidential information, other copyright works, public performance, breach of franchise agreement and passing off. The claimant renewed its application for permission to appeal, relying principally on the contention that the judge should have inferred that substantial parts of the manual had been performed during therapy sessions. The central issues were whether substantial performance had been proved and whether any performance was in public.

The renewed application for permission to appeal was dismissed.

1. The only realistically arguable ground concerned the finding that there had been no performance in public of substantial parts of the manual.
2. A finding that material was copied from the manual into an audio recording did not establish that the same material was performed during therapy sessions. The recording was not a recording of any session. The evidence did not show whether the defendant had used the relevant material in sessions, or when he began or ceased doing so. The claimant bore the burden of proof, and the judge’s suspicions could not replace evidence.
3. Substantial performance and performance in public were separate questions. The expression in public was an ordinary English expression. The judge was entitled to apply common sense to sessions conducted with very small numbers of people and to conclude that the performances were not public. The judge had directed himself correctly by reference to the relevant learning and had applied the law to the facts.
4. The Court of Appeal, without the benefit of the direct evidence available to the trial judge, could not regard a different conclusion as realistically attainable. There was therefore no real prospect of success on the proposed appeal grounds.
5. The criticism of the judge’s refusal to make an order under rule 31.22(2) of the Civil Procedure Rules 1998 concerned an exercise of discretion. The claimant did not pursue a costs-only appeal, and there was no basis for appellate interference.

Order: application dismissed.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed: [2001] EWCA Civ 1810.
2. High Court, Chancery Division: By order dated 25 May 2001, Mr Kevin Garnett QC, sitting as Deputy Judge, awarded £125 damages for copying the manual in an audio recording, dismissed the remaining claims, and ordered the claimant to pay the defendant’s costs, assessed at £28,000.