Phonographic Performance Ltd v JJPB Ltd & Anor

An injunction is directed to preventing future infringement and depends on a threat and intention to infringe. Past infringement will generally establish that threat, but the court must consider whether subsequent events affect the position. On a default judgment application, the court retains discretion over injunctive relief and must take account of material developments, including payment for infringements pleaded in the claim. A pragmatic, case-by-case approach is appropriate. Where infringement continues without a licence, an injunction may be granted even though the infringements existing when proceedings began have since been paid for.

Phonographic Performance Ltd brought two claims against traders who had played sound recordings in public without PPL licences. In each case, the defendants were in default and had paid licence fees covering the infringements relied on when the claim forms were issued, but had not obtained formal licences and continued to play music without authorisation.

The applications concerned whether the court should grant injunctions on judgment in default in those circumstances. The issue was whether payment for the earlier infringements removed the basis for injunctive relief, or whether the continuing unlicensed conduct justified an injunction.

1. The court granted injunctions in both actions. Judgment in default was appropriate, and the court retained discretion whether to grant the injunction sought.

2. An injunction is quia timet relief directed to future infringement. It is based on the existence of a threat and intention to infringe. Although past infringement will generally provide sufficient evidence of future threat and intention, that inference is not automatic in every case.

3. On a default judgment application, it is insufficient merely to confirm that the pleaded facts support the relief. The court must take account of material events occurring after the claim was issued. It would be unrealistic to disregard the fact that the infringements pleaded had been paid for.

4. Following the pragmatic approach discussed in Merck Sharp Dohme Corp v Teva [2013] EWHC 1958 (Pat) and Landor v Azure [2007] FSR 9, the court may consider subsequent events rather than focus narrowly on the position at issue of the proceedings.

5. The subsequent conduct was decisive. In both cases the defendants continued to infringe by playing music without a PPL licence. Requiring fresh proceedings would elevate form over substance and cause unnecessary expense. The injunctions were therefore granted.

First instance decision. No prior appellate decision is stated in the judgment.