Phonographic Performance Ltd v Balgun (t/a Mama Africa)

When summary judgment is entered in the absence of a party, the court has an unfettered power under the practice direction to CPR 24 to set it aside or vary it. The criteria in CPR 39.3(5) provide useful guidance, but must be applied flexibly because no trial has occurred. Relevant considerations include promptness, the reason for non-attendance, real prospects of success at trial and any other reason why the matter should be tried.

For copyright purposes, authorising the playing of music at premises may amount to authorising infringement even though the person giving the authority did not select the particular infringing songs. The relevant authorisation is of the act of playing music in public, where the venue operator retains control over that activity.

Phonographic Performance Ltd brought copyright proceedings against the proprietor of a restaurant, alleging that recorded music had been played publicly in infringement of copyright in two songs. Master Price entered summary judgment after the defendant failed to attend the application hearing and later refused to set the judgment aside.

The defendant applied for permission to appeal. He argued that the wrong test had been applied to the setting-aside application, that he had not authorised infringement by independent DJs, and that the matter should proceed to trial rather than involve a mini-trial. The central issues were the correct approach to setting aside summary judgment entered in a party’s absence and whether the proposed copyright defence had real prospects of success.

1. Permission refused. The decision of Master Price was discretionary. Permission could be granted only if he had erred in law, reached a decision outside the range of reasonable disagreement, or committed a serious procedural or other irregularity making the decision unjust.
2. The practice direction to CPR 24 gives the court an unfettered jurisdiction to set aside or vary summary judgment entered in the absence of the respondent. Following Tubelike Limited (In Liquidation) & Others v Visitjourneys.com Limited [2016] EWHC 43 (Ch), the criteria in CPR 39.3(5) should be used by analogy and as a guide, not applied rigidly. Relevant matters include promptness, the reason for non-attendance, real prospects of success at trial and other reasons why the case should be tried. Relief-from-sanctions principles were not helpful.
3. Master Price was entitled to conclude that the defendant had not acted promptly and had proper notice of the hearing. Although the defendant’s attendance at another hearing was relevant and had not been addressed adequately, it was unclear why he had not warned the court in advance.
4. Under section 16 of the Copyright, Designs and Patents Act 1988, infringement includes doing or authorising another to do a restricted act. The relevant act was authorising the playing of music in public, not authorising particular songs. The reasoning in PPL & PRS v CGK Ltd and others [2016] EWHC 2642 was correct and applicable. The defendant had authorised DJs to play music at his restaurant and retained complete control over that activity.
5. CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] 1 AC 1013 was distinguishable because Amstrad had no control over how its equipment was used. The proposed defence therefore had no real prospects of success. The established facts permitted the issue to be decided without an impermissible mini-trial.

High Court (Chancery Division): Permission to appeal was refused. The court upheld the discretionary refusal by Master Price to set aside the summary judgment.