Al-Hasani v Nettler & Ors

The claimant sued for alleged infringement of copyright in an academic research paper published by the first defendant in 1998 and/or 1999. The court considered applications to strike out, for summary judgment and for permission to amend the particulars of claim, and analysed the interaction of the Copyright, Designs and Patents Act 1988 provisions (notably the reproduction and distribution rights) with the limitation rules in the Limitation Act 1980, in particular s.32 dealing with concealment.

Key legal principles and rulings:

• The claim as pleaded failed CPR requirements for adequate particulars and was vulnerable to strike out under CPR 3.4 because it did not identify the part(s) said to have been copied, did not plead facts to make the second defendant vicariously liable, and included numerous collateral and insufficiently particularised allegations (e.g. about unlawful assessments and equality/human-rights complaints) unrelated to a straightforward copyright claim.
• On limitation the ordinary six year tort limitation (s.2 Limitation Act 1980) applied and the claimant could not show a realistic prospect that s.32 would postpone the start of the limitation period: the alleged acts of deliberate concealment or deemed concealment were either implausible or, if potentially established, unlikely to have been undiscoverable for the long period required; the claimant had not shown he could not with reasonable diligence have discovered the publications before the relevant cut-off.
• Accordingly the court refused permission to amend to the claimant’s proposed particulars, refused the claimant’s summary judgment application, struck out the existing particulars and the claim in its entirety, and varied the Chief Master’s costs order so that there would be no order as to costs of the Second Defendant’s earlier procedural application.

The claimant, a former postgraduate student, alleged that his research paper written in 1993 had been published in the name of the first defendant (his former supervisor) in 1998 and/or 1999, and that this constituted copyright infringement and had caused loss to his academic career. The claimant issued Chancery proceedings in 2018 and sought various interim and final remedies, including permission to amend particulars of claim, summary judgment, and relief against a costs order. The defendants applied to strike out or obtain summary judgment.

Background and procedural posture

• The claimant earlier pursued judicial-review and discrimination litigation against the university and others (decided in 2000 and 2002), and later employment tribunal proceedings (2017–18). He asserted he only discovered the alleged publication in 2016 after applying for a lectureship.
• Five interlocutory applications were listed for hearing: the claimant sought to set aside a costs order, to amend his particulars of claim, and summary judgment; each defendant sought strike out/summary judgment.

Issues framed by the court

1. Whether the claimant’s pleaded particulars disclosed a reasonably arguable case and complied with CPR requirements (CPR 16.4, CPR 7.4 and related practice directions).
2. Whether, on the papers and without a trial, the claimant had a real prospect of establishing copyright infringement (including copying of the whole or a substantial part) and causation / loss.
3. Whether the claim was time-barred under the Limitation Act 1980 (six year rule) and whether s.32 (concealment / deemed concealment) postponed the start of limitation so as to render the claim in time.
4. Whether amendment to the claimant’s proposed particulars should be permitted and, if so, on what terms.

Court’s reasoning and conclusions

The judge first addressed the many procedural defects in the claimant’s claim form and particulars: the particulars were not adequately divided or particularised, they failed to identify the part(s) of the work alleged to have been copied, and did not set out factual material establishing vicarious liability of the university. The pleadings contained materials that were collateral and unrelated to the pure copyright claim (for example detailed allegations about examinations and earlier litigation) and therefore risked being an abuse of process and an obstruction to the just disposal of the proceedings.

On the merits and limitation, the court reviewed substantive copyright principles under the CDPA 1988 (including the reproduction and distribution rights, moral rights and measures of damages) and explained the standard summary-judgment approach to assessing whether a claimant has a 'real prospect' of success. The judge carried out a detailed s.32 analysis: to invoke s.32(1)(b) the claimant needed deliberate concealment of a fact relevant to the cause of action and to demonstrate he could not with reasonable diligence have discovered that concealment before the relevant date. The judge found that the alleged publication itself could not realistically amount to concealment; that the claimant’s theories of concealment by changing course, by alleged unlawful assessments, or by affidavits and other university conduct were implausible or insufficiently connected to any concealment of publication; and that even if some deliberate breach could be made out, the breach was unlikely to have been undiscoverable for the lengthy period required. The claimant had not shown that he could not with reasonable diligence have discovered the publication before 4 July 2012 (the latest relevant date).

Because the claimant had no real prospect of establishing that limitation was postponed by s.32, the court concluded the copyright claim was time-barred. Allowing the claimant to amend would be futile and contrary to the overriding objective, because the proposed amended particulars were defective, incoherent and contained irrelevant material. The court therefore refused amendment, dismissed the claimant’s summary-judgment application, struck out the existing particulars and struck out the claim in its entirety. Finally, on the claimant’s prompt application to set aside the Chief Master’s costs order made on the university’s procedural application, the judge considered the matter afresh and varied the order so that there would be no order as to costs of that application.

First instance: The court struck out the claimant’s existing particulars of claim and the claim in its entirety, refused permission to amend in the form proposed, and dismissed the claimant’s application for summary judgment. The court held that the copyright claim disclosed no real prospect of success because it was time-barred under the Limitation Act 1980 and the claimant could not establish that s.32 postponed the commencement of limitation; the particulars were also materially defective and included irrelevant and potentially abusive material. The court varied the earlier costs order of 4 September 2018 so that there would be no order as to costs of the Second Defendant’s procedural application.