Pablo Star Media Ltd v Bowen

An appellate court should interfere with a specialist first-instance decision only where there is a distinct and material error of principle. The assessment is context-sensitive. Relevant factors include the nature of the evaluation, the experience of the tribunal, and the extent to which oral evidence was assessed. A surprising conclusion, or one the appellate court would not have reached, is insufficient.

In a copyright claim, multiple overlapping acts of infringement need not generate separate awards where the damage is assessed cumulatively. Additional damages require consideration of all the circumstances, including but not limited to flagrancy and deterrence. In small-claims proceedings, the starting point is that each party bears its own costs, subject to the rules. Conduct outside the proceedings may justify a costs sanction where it bears on the litigation and creates unfair financial pressure.

Pablo Star Media Ltd appealed against a damages and costs order made by Deputy District Judge Vary in copyright infringement proceedings. Judgment had been entered in default, leaving damages and costs for determination. The District Judge awarded £250 in compensatory damages and £3 interest, refused additional damages, and ordered Media to pay £164.10 of the defendant’s travelling costs because of its litigation conduct.

The appeal challenged the assessment of damages, the refusal of additional damages, and the costs order. The principal issues were whether the District Judge had made an error of principle in applying the user principle, whether additional damages were justified, and whether overseas litigation and a settlement offer could be considered when determining costs.

1. Appeal dismissed. The District Judge had made no distinct and material error of principle. The appellate approach required a multi-factorial assessment, including the nature of the evaluation, the tribunal’s experience, and the extent of oral evidence. An appellate court should show real reluctance to interfere with a specialist decision reached without oral evidence, although not the highest degree of reluctance. It should not intervene merely because the decision was surprising or could have been better expressed.
2. The District Judge was entitled to assess compensatory damages under the user principle by reference to comparable licence rates and the 17-day period of use. The several acts of copying, storing, cropping, uploading and displaying the photograph substantially overlapped. They therefore did not require separate calculations to be aggregated.
3. Additional damages under section 97(2)(b) of the Copyright, Designs and Patents Act 1988 require consideration of all the circumstances. Flagrancy is relevant but not decisive. The short period of use, prompt removal, absence of significant benefit, and lack of any realistic need for deterrence justified refusing additional damages. The Enforcement Directive did not require an additional award on these facts.
4. Under Rule 27.14, the small-claims costs regime starts from the position that neither party pays the other’s costs, subject to specified exceptions. Section 51(1) of the Senior Courts Act and CPR 44 remain relevant, but the specific small-claims provisions prevail in case of inconsistency. Conduct outside the immediate proceedings may be considered where it bears on the litigation. The threat of United States proceedings seeking substantial damages could properly support a finding of unreasonable conduct and an order for travelling costs.
5. The District Judge was also entitled to take the defendant’s £250 offer into account. The hypothetical negotiation concerned worldwide copyright, but reasonable parties would have attached little additional value to possible overseas access to a Wales-focused holiday website. No order for costs was made on the appeal.

• High Court (Intellectual Property Enterprise Court): appeal from the order of Deputy District Judge Vary dated 13 December 2016 dismissed; no order for appeal costs.