Redcrier Publications Ltd & Anor v Redrup Publications Ltd (t/a Complete Care Training) & Anor

An interim payment may be ordered where the court is satisfied that the claimant will recover a substantial sum, including where alternative remedies ensure recovery under one route or another. The amount must be conservative and should represent a sum that can safely be assumed to be recoverable, avoiding disputed issues of fact or law where possible. In assessing copyright damages on a hypothetical licence basis, the court may consider the purpose and economic context of the infringement, but the negotiation concerns the wrongdoing that actually occurred. Costs may be ordered immediately where a claim effectively ends against a party, even though other claims continue.

Redcrier supplied training manuals to care homes. After Mr Redrup left the business, he established a competing company, Redrup Publications Ltd trading as Complete Care Training, which admitted copyright infringement in manuals copied from Redcrier. Mr Redrup’s personal liability as a joint tortfeasor remained to be tried, while libel and trade libel claims continued separately.

Redcrier applied for interim payments of damages and sought costs. The court had to determine whether the requirements for an interim payment were met, how conservatively the likely damages should be assessed, whether additional damages were appropriate at that stage, and what costs orders could properly be made.

1. Interim payment jurisdiction. The First Defendant had admitted copyright infringement and the court was satisfied that Redcrier would recover a substantial sum. CPR 25.7 therefore permitted an interim payment. The jurisdiction could be invoked despite Redcrier’s alternative election between an inquiry as to damages and an account of profits, because recovery of a substantial sum was sufficiently certain under one route or the other.
2. Amount. The governing approach was conservative. The court should identify the sum that could safely be assumed to be recoverable, avoiding complicated factual or legal disputes and focusing on an irreducible minimum. Applying that approach, the court awarded £750 to Mr Seville for infringement of the photograph and £36,700 to Redcrier for diverted update business and sales of infringing manuals.
3. Photograph damages. Damages were assessed on a conventional hypothetical licence basis. The negotiation had to reflect the purpose for which the photograph was used, including its connection with Redcrier’s goodwill, and the economic circumstances of the infringement. Under section 97(2) of the Copyright, Designs and Patents Act 1988, the infringement was flagrant, but the uncertain benefit to the Defendants and the substantial licence valuation meant that no additional damages should be added at the interim stage.
4. Costs. Although liability remained unresolved against Mr Redrup and other claims continued, the copyright claim against the First Defendant had effectively ended following its admission. An immediate costs order was therefore appropriate. The First Defendant was ordered to pay £18,029.955, comprising the recoverable High Court copyright costs and the capped costs of the summary judgment application. The CMC costs were reserved.