FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd

Interest on damages compensates the claimant for being kept out of money that ought to have been paid. It is not compensation for the underlying damage. The court may adopt a pragmatic approach when the date on which payment should have been made is uncertain. In assessing interest, the court may consider the contractual payment arrangements, the period during which the claimant was deprived of the money, the currency of the award and the parties’ conduct. A claimant’s delay or substantial business context does not automatically justify refusing interest. Where damages are awarded in sterling, a UK interest basis may be appropriate.

Following an earlier judgment dated 20 April 2021 awarding damages for copyright infringement, the court considered the claimant’s application for interest. The claimant sought interest under section 35A of the Senior Courts Act 1981 or the court’s inherent jurisdiction, calculated by reference to US borrowing rates. The defendant argued that no interest should be awarded because of the claimant’s conduct, or alternatively that interest should run from a later date at a UK-based rate. The issues were whether interest should be awarded, the appropriate rate and the period for which it should run.

1. The court awarded interest of £946.46 on the damages.

2. The governing principle was that interest compensates a claimant for being kept out of money that ought to have been paid. It does not compensate for the damage itself.

3. It may be difficult to identify when money ought to have been paid. In that situation, the court may adopt a pragmatic approach, taking account of the available evidence and the commercial circumstances.

4. The contractual arrangements between LTEV and Boogie Up Productions were a useful comparator. They required sales statements every six months and payment within 60 days of an invoice. The court also considered the dates of delivery, notification of the copyright and withdrawal of the infringing records.

5. The claimant’s conduct did not justify refusing interest. Although the sums were small in the context of the claimant’s business, that fact did not remove the claimant’s entitlement to compensation for being kept out of the money.

6. Because the damages had been awarded in sterling, the court adopted a UK basis for interest rather than the US prime rate sought by the claimant. Applying a pragmatic approach to the relevant period, it selected the midpoint date proposed by the defendant and awarded £946.46.

The judgment followed the court’s earlier damages judgment dated 20 April 2021. No appellate history was stated.