Al-Hasani v Nettler & Ors

A copyright claim may be struck out where the claimant cannot show a real prospect of overcoming limitation. Under Limitation Act 1980, deliberate concealment requires concealment of a fact relevant to the right of action. Active concealment need not also involve a duty to disclose, but the claimant must still show that the concealment delayed discovery. Under section 32(2), a deliberate breach of duty must have occurred in circumstances in which discovery was unlikely for some time. The reasonable-diligence question is objective and requires the claimant to show why the concealed infringement could not have been discovered earlier. A defective copyright pleading must identify the work, the copying alleged, the relevant parts copied and the factual basis for any vicarious liability. The court may refuse amendment where the proposed pleading remains incoherent, abusive or disproportionate.

The claimant alleged that the first defendant had copied and published a research paper written by him in 1998 or 1999, and that the second defendant was vicariously liable. He issued proceedings in July 2018 and relied on sections 2 and 32 of the Limitation Act 1980, asserting that the infringement had been deliberately concealed until 2016.

The claimant applied to amend his particulars and for summary judgment. Both defendants applied to strike out the claim or obtain summary judgment. The claimant also sought to set aside a costs order made on an earlier application. The central issues were whether the copyright claim had a real prospect of avoiding limitation, whether the proposed pleading was adequate, and how the applications should be resolved.

1. Copyright claim and pleading. The existing particulars were struck out. A copyright claimant must identify the work, the copying alleged and the part or parts said to have been copied. The existing pleading did not adequately identify whether the whole work, a substantial part, ideas or expressions of ideas were relied on. It also disclosed no sufficient factual basis for vicarious liability against the second defendant.
2. Real prospect test. The court applied the summary judgment test under CPR 24. The question was whether the claim was realistic rather than fanciful. The court must not conduct a mini-trial, but may reject assertions lacking evidential substance and may decide a short point of law where the material is sufficient.
3. Limitation. The copyright cause of action accrued on publication. The ordinary six-year period under section 2 of the Limitation Act 1980 therefore expired in 2004 or 2005. The claimant had no real prospect of establishing actual deliberate concealment under section 32(1)(b). Publication itself was difficult to reconcile with concealment, and the alleged change of course, examinations and later affidavit had no realistic causal connection with concealing the publication.
4. The court held that active concealment does not necessarily require a separate duty to disclose. The duty-to-disclose gloss in Williams v Fanshaw, Porter & Hazlehurst was confined to omission cases. However, the claimant still had no real prospect of proving the necessary intention on the facts.
5. There was a real prospect that publication, if proved, would constitute a deliberate breach under section 32(2), but no real prospect of proving that discovery was unlikely for some time. The alleged publication was public and would probably have been discovered during the claimant’s studies. Nor had the claimant shown, on the objective reasonable-diligence test, why it could not have discovered the publication before 4 July 2012.
6. The claim was therefore time-barred and disclosed no reasonable grounds. Permission to amend was refused, the claimant’s summary-judgment application was dismissed, and the claim form and claim were struck out. The earlier costs order was varied so that there was no order as to the costs of the relevant application.

First-instance decision. The judgment records earlier judicial review, County Court and Court of Appeal proceedings concerning the claimant’s university studies, but those proceedings were not appeals in the present claim.