Lilley v Euromoney Institutional Investor Plc & Anor

A judge should recuse himself only where the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or danger of bias. Case-management decisions, including the efficient listing of related applications, do not ordinarily establish apparent bias.

Copyright damages must be compensatory and commercially realistic. A notional royalty is assessed objectively by reference to willing parties where the circumstances do not establish an actual lost sale or established licensing market. Separate infringing acts cannot automatically be multiplied into millions of independent licence fees.

Where pleadings are deficient, disproportionate or unclear, the court may give a litigant a final opportunity to amend before striking out the claim. Persistent totally unmeritorious applications may justify an extended civil restraint order.

Victor Lilley brought three copyright claims against publishers of magazines in respect of articles originally written and sold by him in the 1990s. He claimed that later internet publication was unlicensed and sought damages calculated by multiplying the original article price by the number of months, websites and countries involved.

The court heard applications concerning recusal, adjournment, strike-out, amendment of pleadings, further information, damages, costs and civil restraint orders. Related proceedings against another publisher had previously been struck out in the Intellectual Property Enterprise Court, but the application concerning those proceedings was not determined on this occasion.

The central issues were whether the judge should recuse himself, whether the claims or applications should be struck out, how any copyright damages should be assessed, and whether civil restraint orders were justified.

1. Recusal. The applications for recusal were dismissed as totally without merit. Applying Locabail v Bayfield [2000] QB 451 (CA) and Porter v Magill [2001] UKHL 67, the relevant question was whether a fair-minded and informed observer would conclude that there was a real possibility or danger of bias. The judge’s responsibility for listing related applications, his supervisory connection with the Intellectual Property Enterprise Court and his earlier decision on an analogous damages issue did not satisfy that test.
2. CIMA. The application to set aside Roth J’s order under CPR r3.1(7) was dismissed. The power to vary or revoke an order should be exercised sparingly, particularly where there had been no material change of circumstances, the application was not prompt, and the applicant was attempting to reargue matters suitable for an appeal. The remaining claim was struck out because Mr Lilley had failed to provide the particulars required by the order, so his statement of case disclosed no reasonable grounds for bringing the claim.
3. Aspermont. The entire claim was not struck out immediately. Mr Lilley was given a final opportunity to file amended Particulars of Claim complying with the material requirements of Master Teverson’s order, identifying the alleged infringements within the limitation period and advancing a realistic damages claim. The amended pleading was limited to 20 pages, excluding exhibits, and was made subject to an unless order.
4. Damages. The court explained the three categories described in General Tire v Firestone [1975] 1 WLR 819. A group 3 claim is assessed by an objective, notional willing licensor and willing licensee analysis. The original fee for publication in a printed monthly magazine was not a proper comparable for internet availability over time and across countries. Although each infringement was a separate tort, damages could not sensibly be calculated by treating every alleged monthly or country-based instance as a wholly separate fee-bearing transaction. Any award would be compensatory, commercially realistic and substantially below the sums claimed.
5. Euromoney and civil restraint. The application to compel further information was dismissed because the request was lengthy, argumentative and unclear, and further explanation would achieve nothing. Extended civil restraint orders were made in all three proceedings for two years. The court held that persistence under Practice Direction 3C required more than two totally unmeritorious applications, and that the litigant’s conduct could be considered as a whole across closely related proceedings. The orders restrained claims or applications in the High Court or county court concerning matters connected with the proceedings without prior permission.

First-instance judgment. The judgment refers to earlier procedural decisions in the related proceedings, including [2013] EWHC 1354 (Ch), but no appeal from the present judgment is stated.