On 11 February 2019, the High Court issued guidance on factors to take into account when considering whether an interim injunction should be granted where there has been copyright infringement.

Facts

The case concerned an application by the claimant, Happy Camper Productions Ltd, for an interim injunction to restrain the Defendant, the BBC, from broadcasting a comedy drama called “Pitching In”.

The claimant company was set up by Jerry and Kay Lockett to commercially exploit the script of their comedy drama “Down the Caravan”. The premise of the script was a recently deceased man in his 40s, based in West Wales, who had made a video shown at his funeral. In the video, the character announced his plans to split the caravan site he lived in between his wife and secret lover; thereby creating dramatic and comedic consequences.

The pilot script of the programme was sent by Mr Lockett to Margaret Russell, a producer at the BBC in July 2015, who almost 3 years later told him: “the script was not very good” and “not worth sending to London”. Months later, Mr and Mrs Lockett caught wind of a script for a BBC pilot “Pitching In”, also a comedy set in Wales in a caravan park owed by a widower. The claim was brought for copyright infringement under the CDPA 1988. The interim injunction was sought to stop the broadcast of the new comedy, due to be shown by BBC One Wales the very next day after the hearing.

Decision

The High Court applied the test in American Cyanamid Co (No 1) v Ethicon Ltd [1975] namely asking:

  1. is there a serious question to be tried; and, if so
  2. are damages an adequate remedy; and
  3. what is the balance of convenience?

As for a ‘serious question to be tried’, HHJ Keyser doubted this on the evidence. Mainly because despite some minor similarities between the two scripts, the imaginative idea underlying the claimant’s programme was very different. Keyser also thought it relevant to add that if any copyright did exist, the writer of the pilot was likely the legal owner and not the claimant.

Secondly, supposing there was a further issue to be tried, the injunction should be refused as damages were an adequate remedy. This was despite the difficulty in calculating the commercial value of the claim.

Furthermore, the balance of convenience laid much in the BBC’s favour. Whilst the risk of allowing "Pitching In" its TV debut may give rise to damages in favour of the claimants, the risk of not doing so would mean the loss of money and a large loss of reputation on the part of the BBC, especially considering they would have to pull an advertised show the day before it was to be released.

Finally, the case judge took umbrage at how late the claimant’s application was made considering as they had knew of “Pitching In” 6 months prior to bringing the claim. The claimant’s inability to meet a cross-undertaking in damages was also considered.

Comment

Whilst the judgment was perhaps uncontroversial, the application of the American Cyanamid test shows the difficulties in interpreting what the test for interim injunctions should be.

In American Cyanamid itself, Lord Diplock defined a serious issue to be tried, by asking whether the applicant's claim is ’frivolous or vexatious’ or whether there was a ’real prospect’ that the claimant would succeed in the claim for a permanent injunction at the trial. It has been suggested these are reformulations of the same meaning, i.e. the purpose of the exercise isn’t to adjudicate on the case, rather consider danger of not allowing an injunction. This is a low bar to overcome.

This said, it seems HHJ Keyser has understood the second formulation of the ‘real prospect’ wording to require an evaluation of the case facts and the merits of the claim. Especially considering his judgment largely swung on his assessment of the similarities of the two scripts. What this could mean in practice therefore is that judges must conduct a mini-trial of the case facts and available evidence in order to weigh up an interim injunction application. Whilst the judge in this case may have raised the bar for the first part of the American Cyanamid test, a consideration of the merits of the claim is perhaps unavoidable considering the need to consider the 3rd part of the American Cyanamid test on the ‘balance of convenience’.

Whether this judgment has followed American Cyanamid or raised the bar is therefore debateable. What can be said in the meantime is that if judges wish to cover their backs they may seek to follow HHJ Keyser’s comments on the broad idea behind the test in the first place: ‘to seek to ensure that if one makes a mistake it is the least bad mistake one can make…’

Happy Camper Productions Ltd v British Broadcasting Corporation [2019] EWHC 558 (Ch)