Lilley v Financial Times Ltd

A copyright claim based on an act of authorisation is ordinarily complete when the authorisation occurs. Continued availability of the authorised material does not create a continuing authorising act for limitation purposes. A claim vested in a trustee in bankruptcy should generally be stayed or regularised, but may be struck out as an abuse where the claimant had actual knowledge of the lack of title. Proceedings may also be struck out where prolix, incomprehensible and repeatedly non-compliant pleadings make them an abuse of process, particularly where the likely value of the claim is wholly disproportionate to the cost and complexity of the litigation.

The claimant brought two copyright claims concerning articles published in periodicals in the 1990s and later made available online through library websites. He claimed exceptionally large sums calculated by reference to the original article fees, the number of countries and the period of online availability.

The defendants applied for summary judgment or strike-out. The grounds included limitation, lack of standing following the claimant’s bankruptcy, abuse of process, and the prolix and incomprehensible nature of the pleadings. The claimant also sought pre-action disclosure and an order setting aside an earlier refusal of disclosure.

1. Limitation. Applying MCA Records Inc v Charly Records Ltd [2001] EWCA Civ 1923, the court held that an alleged act of authorisation under section 16(2) of the Copyright, Designs and Patents Act 1988 is complete when the authorisation is given. Later continuation of the authorised acts does not extend the limitation period. The Financial Times’ authorisations occurred more than six years before the claims were issued. The claim was therefore statute-barred.
2. The claimant’s arguments for disapplying limitation had already been rejected in Lilley v Chartered Institute of Management Accountants [2013] EWHC 1354 (Ch). There was no good reason to revisit that conclusion, and doing so would itself constitute an abuse of process.
3. Bankruptcy and standing. The copyright claim had vested in the trustee or Official Receiver on the making of the bankruptcy order. Under Pathania v Adedeji [2014] EWCA Civ 681, lack of title alone ordinarily calls for a stay or regularisation by joinder or assignment. Strike-out on abuse grounds requires actual knowledge that the claimant lacks title. The evidence did not establish actual pre-issue knowledge. The CIPS claim would therefore have been stayed on this ground if it had otherwise continued.
4. Abuse through the manner of litigation. Following Tchenguiz & Ors v Thornton UK LLP & Ors [2015] EWHC 405 (Comm), statements of case must plead concise material facts, not evidence, argument or rhetoric. The claimant had repeatedly produced lengthy, incomprehensible pleadings, exaggerated damages calculations and unfounded allegations. There was no realistic prospect that a further opportunity to re-plead would be effective. Both claims were struck out as abuses of process.
5. The applications for pre-action disclosure and to set aside the earlier refusal of disclosure were dismissed as totally without merit. The claims themselves were also characterised as totally without merit.