Gladness (also known as Tumi) Jukic v British Broadcasting Corporation & Anor

A claim may be struck out where the pleading is incoherent, fails to identify a legally recognisable cause of action, or would obstruct the just disposal of proceedings. A criminal statute does not create a civil remedy unless it expressly does so. A copyright claim concerning a television format must identify an original work, copying, and copying of the whole or a substantial part. Ideas and commonplace features are not protected merely because they appear in a similar programme. On summary judgment, the court may decide a short point of law or construction where the evidence is sufficient, but must avoid conducting a mini-trial. A claim or application with no rational basis on which it could succeed may be certified as totally without merit.

The claimant alleged that the defendants had used her trade marks and copied her treatment for a reality television programme, and also alleged harassment and unauthorised computer access. She sought summary judgment. The defendants applied to strike out the claim under CPR rule 3.4, sought summary judgment under CPR rule 24.2, and sought costs and a civil restraint order.

The claimant did not attend the hearing and had not validly amended her Particulars of Claim. The court therefore considered whether the pleaded claims disclosed viable causes of action and, alternatively, whether the claims had any real prospect of success.

1. Absence from hearing. The court proceeded in the claimant’s absence under its case-management powers. Although CPR rule 39.3 did not strictly apply, the court applied its principle and provided for an application to set aside if made promptly, supported by a good reason for non-attendance, and showing a reasonable prospect of success.
2. Strike-out. The purported amendments were invalid because permission had not been obtained and the documents were not properly formulated amendments. The trade mark claim disclosed no reasonable grounds because the claimant’s marks had been cancelled. The Computer Misuse Act 1990 created criminal offences but no civil cause of action. The harassment claim failed to plead a course of conduct, the requisite knowledge, or conduct arguably amounting to harassment. The alleged conduct was mostly reasonable litigation conduct and, even assuming the allegations were true, did not reach the threshold identified in Thomas and Majrowski.
3. Intellectual property claim. The Intellectual Property Act 2014 did not create a relevant civil cause of action. The only potentially recognisable claim was copyright under the Copyright, Designs and Patents Act 1988. The claimant had not identified the work or its original features with sufficient clarity. In any event, the alleged similarities were commonplace or concerned unprotected ideas. Viewed holistically, the Treatment and the Glow Up Show differed substantially in structure, emphasis, participants, time limits, teamwork and narrative purpose. There was therefore no real prospect of proving copying of the whole or a substantial part of an original work.
4. Summary judgment. The court applied the realistic-prospect test in CPR rule 24.2. It could evaluate the evidence sufficiently to determine the legal and evidential deficiencies, without conducting a mini-trial. The claimant’s own summary judgment application was entirely without merit.
5. Orders. The defendants’ applications succeeded by strike-out and summary judgment. The claimant’s application was dismissed and certified as totally without merit. Costs were ordered to be considered on an indemnity basis, subject to representations. A limited civil restraint order was made. An extended or general civil restraint order was not made.