Allason & Anor v Random House UK Limited

Permission to appeal should be refused where the proposed grounds have no realistic prospect of success. An appellate court will not interfere with findings of fact, witness credibility or authorship where the trial judge applied the correct legal concepts and reached conclusions open on the evidence. A shifting and unpleaded case on an alleged oral copyright assignment, unsupported by contemporaneous documents, does not provide a viable basis for permission. A procedural irregularity after judgment has been reserved warrants intervention only where it is serious and capable of causing a miscarriage of justice.

Mr Rupert Allason and his service company, Westintel Research Limited, sued Random House UK Limited for copyright infringement concerning publication of The Enigma Spy: An Autobiography, attributed to John Cairncross. Laddie J dismissed the action after a four-day trial and ordered indemnity costs.

Mr Allason, appearing in person, sought permission to appeal. He argued that he had ghost-written or co-authored the memoirs, that copyright had been assigned to him orally, and that the trial judge had committed a serious procedural irregularity by consulting websites after reserving judgment. The central issue was whether any of those grounds disclosed an arguable error warranting an appeal.

Application dismissed. Lord Justice Robert Walker held that there was no prospect whatsoever of a successful appeal.

1. Authorship and factual findings. The trial judge had not erred in law in applying the concepts of authorship and co-authorship relevant to copyright. The evidence concerning the timing, nature, quantity and quality of Mr Allason’s work, together with the contemporaneous documents and witness evidence, entitled the judge to conclude that John Cairncross was the sole author. The appellate court would not reopen those findings merely because an alternative interpretation of the evidence was advanced.
2. Alleged oral assignment. The assignment case had not been pleaded originally. It developed into two inconsistent versions during the proceedings and took its final form in cross-examination. It was unsupported by contemporaneous documentation. The judge was therefore entitled to reject it. The possible commercial or regulatory purpose of the alleged arrangement did not materially assist the application.
3. Website evidence. It would have been preferable for the judge not to pursue that inquiry after reserving judgment. Even if this amounted to an irregularity, it did not affect the judge’s approach or the outcome. It was neither serious nor capable of causing a miscarriage of justice.
4. The remaining grounds, including the complaint concerning without-prejudice correspondence and the costs point, disclosed nothing of substance. The application for permission to appeal was dismissed.

• High Court, Chancery Division: Laddie J dismissed the copyright infringement action on 16 October 2001 and ordered indemnity costs.
• Court of Appeal (Civil Division): On 20 December 2001, Lord Justice Robert Walker dismissed the application for permission to appeal: [2001] EWCA Civ 2077.