Lunak Heavy Industries (UK) Limited & Anor v Tyburn Film Productions Limited

On an application to strike out an unjust-enrichment claim, the court may decide a pure question of law summarily where the pleaded case is clearly outside the legally sustainable boundaries of the doctrine. The claimant must identify a transfer of value, in the sense of something of value given up by the claimant through the provision of the defendant’s benefit. Contractual rights to use methods of recreating a performer’s likeness, and to prevent others from doing so, are not transferred when a rights-holder separately grants its own intellectual-property rights to another party for a different production. The possibility of indirect enrichment through coordinated transactions or an interceptive subtraction does not remove the need to identify the relevant thing of value transferred from claimant to defendant.

Tyburn Film Productions Limited claimed against Lunak Heavy Industries (UK) Limited and Lucasfilm Ltd LLC in unjust enrichment. It alleged that the defendants were enriched by rights granted by the executors of Peter Cushing’s estate to recreate his likeness in Rogue One: A Star Wars Story, and that the enrichment was at Tyburn’s expense because of contractual rights in a 1993 letter agreement.

The Master dismissed an application to strike out or summarily determine the claim. The High Court dismissed the appeal: [2024] EWHC 231 (Ch). The central issue in the Court of Appeal was whether, assuming the other elements of the claim and the absence of defences, the pleaded facts disclosed any realistic prospect of establishing enrichment at Tyburn’s expense.

1. Appeal allowed. The claim against Lunak and Lucasfilm was struck out.
2. The applicable strike-out and summary-judgment principles under the Civil Procedure Rules 1998, rule 3.4(2)(a) and Part 24, were not disputed. A claim must have a realistic prospect of success and more than merely arguable merit. Although caution is required where the law is uncertain and developing, the court should determine a pure legal issue summarily where the case clearly lies beyond the sustainable margin.
3. The governing question was whether the defendants’ enrichment was at Tyburn’s expense. The analysis required identification of a transfer of value from Tyburn to the defendants, meaning a loss through the provision of the relevant benefit. The four-stage structure identified in Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221 was a framework rather than a set of legal tests in itself. The expression at the expense of had to be approached purposively in accordance with Investment Trust Companies v Revenue & Customs Commissioners [2017] UKSC 29.
4. Tyburn’s contractual rights under the 1993 Letter Agreement were not transferred. Clause (e) gave a positive licence to use specified methods for making or exploiting the proposed television film; clause (h) gave a negative contractual right to prevent specified uses if that film was not made. The defendants’ use of rights granted by the Estate for the different purpose of making Rogue One did not use, interfere with, or acquire either right. The commercial value of being first to recreate Mr Cushing’s likeness did not alter the legal character of the rights.
5. The alternative case based on coordinated transactions failed. The 1993 and 2016 agreements were separated by 23 years and could not be treated as coordinated transfers of value. The authorities concerning indirect benefits require the transactions, viewed together, to effect the movement of value from claimant to defendant. The alleged interceptive-subtraction cases did not assist because the Estate’s rights were not something to which Tyburn was entitled and which the defendants intercepted.
6. The proper remedy, on the assumed facts, would potentially have been a claim for inducing breach of contract, which Tyburn had not pleaded against the appellants. It was unnecessary to know the precise digital processes used to recreate the likeness: the answer was the same even assuming that those processes fell within clause (e) of the Letter Agreement.

• Court of Appeal (Civil Division) — The appeal from [2024] EWHC 231 (Ch) was allowed and Tyburn’s claim against Lunak and Lucasfilm was struck out.
• High Court — Tom Mitcheson KC, sitting as a deputy High Court Judge, dismissed the appeal from the Master’s refusal to strike out or summarily determine the claim: [2024] EWHC 231 (Ch).
• Master Kaye — The application issued by Lunak and Lucasfilm was dismissed on 8 December 2023.