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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Celador Productions Ltd v Melville [2004] EWHC 2362 (Ch) (21 October 2004) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2004/2362.html Cite as: [2004] EWHC 2362 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
CELADOR PRODUCTIONS LIMITED |
Claimant/ Applicant |
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- and - |
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MELVILLE |
Defendant/Respondent |
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BOONE |
Claimant/ Respondent |
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- and - |
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ITV NETWORK AND ANOTHER |
Defendants/Applicants |
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BACCINI |
Claimant/ Respondent |
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- and - |
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CELADOR PRODUCTIONS LIMITED AND OTHERS |
Defandants/Applicants |
____________________
Mr. John Baccini In Person
Mr. Timothy Boone In Person
Hearing dates : 6th, 7th, 12th and 13th October 2004
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Crown Copyright ©
The Vice-Chancellor :
Introduction
The test to be applied
a) it is for the applicant for summary judgment to demonstrate that the respondent has no real prospect of success in his claim or defence as the case may be;
b) a "real" prospect of success is one which is more than fanciful or merely arguable;
c) if it is clear beyond question that the respondent will not be able at trial to establish the facts on which he relies then his prospects of success are not real; but
d) the court is not entitled on an application for summary judgment to conduct a trial on documents without disclosure or cross-examination.
The creation and evolution of WWM
(1) Contestants were to be selected by correctly answering six questions over the telephone in a call by the contestant on a premium line.
(2) The prizes would be funded by the revenue to be derived from the use of the premium line.
(3) In the course of the programme a number of contestants would be asked a series of multiple choice questions. A correct answer would entitle the contestant to a money prize. Each successive prize would be double that of the earlier one but if the contestant gave a wrong answer then all previous prizes were lost.
(4) About two-thirds of the way through the programme the contestant who was then in the lead would go into 'the sweat-box' and play on alone for the highest value prizes.
(5) There were to be three optional prize structures for 20 questions. In the first option the prizes ran from £10 for question 1 to £5,242,880 for question 20. The range for the second and third options were respectively £25 and £13,107,200 and £100 and £52,428,800.
The claim of Mr Melville
(a) Between late 1994 and January/February 1995, Mr Melville created an Initial Proposal (a.k.a. Millionaire's Row – Bingo, the six page Document 1 annexed to the Defence and Counterclaim).
(b) In around January - February 1995, Mr Melville sent his Initial Proposal to the BBC, Scottish TV and other unidentified television companies, all of which rejected it.
(c) In around April 1995, Mr Melville revised his Initial Proposal to create a Revised Proposal (a.k.a. Millionaire's Row – Slot Machine, the ten page Document 2 annexed to the Defence and Counterclaim). He dated the Revised Proposal 23 May 1995 and posted a copy of it to himself on 20 May 1995. Subsequently he sent it to various television companies.
(d) On about 14 August 1995 he sent a copy of the Initial Proposal to Carlton together with a seven-page manuscript letter.
(e) About two or three weeks later, he sent Carlton the Revised Proposal with a further letter.
(f) Subsequently he received a receipt from Carlton dated 29 August 1995.
(g) Around the end of September 1995 he received a Carlton rejection letter dated 25 September 1995. Mr Melville then telephoned Carlton to ask for the return of his Proposals. About a month later he received a photocopy letter with the manuscript annotation dated 20 October 1995 enclosing the Initial Proposal but not the Revised Proposal. Mr Melville then telephoned Carlton to ask for the return of the Revised Proposal, but was told that the only version of his format they had any record of receiving was the Initial Proposal.
(h) Subsequently Mr Melville sent his Proposals to other television companies. He sent the Initial Proposal to Granada, and received a rejection letter dated 6 October 1996. He also sent one or both Proposals to Action Time, and received a rejection letter dated 4 October 1996. He sent the Revised Proposal to Granada, and received a rejection letter dated 15 November 1996.
(i) In 1997 Mr Melville went to live and work in Tenerife.
(j) In 1998, Mr Melville saw a report about WWM in The Sun newspaper issue dated 28 April 1998, and concluded that "this game show had a more than striking resemblance to my formats the Initial Proposal and the Revised Proposal". He made enquiries and was told that the show was to be produced by Celador. Prior to that time, Mr. Melville had not heard of Celador. He is certain that he had never sent Celador either of his Proposals.
(k) Mr Melville watched the first screening of WWM on British television after his return from Tenerife and concluded that the show was substantially the same as his Revised Proposal.
(l) Mr Melville noted a credit for Carlton in the final screen shot. He originally thought that it said "A Carlton Production for the ITV Network", although he now accepts that it may have read "Carlton Presentation for ITV". He concluded that Carlton had passed his work to Celador.
(m) Mr Melville made a number of telephone calls to Carlton to express his concerns. He spoke to someone who acknowledged that Carlton had received the Initial Proposal but denied receipt of the Revised Proposal, and advised Mr Melville to put his complaint in writing. Accordingly he sent the letter dated 21 April 1999, to which Carlton replied in the letter dated 10 May 1999 referring him to Celador. He therefore sent the letter dated 11 May 1999.
(n) Mr Melville remains suspicious of Carlton, but accepts that "the information could have leaked, whether intentionally or not, from any of the other television companies that I sent the format to". Despite this, his pleaded case is that it is to be inferred from the similarity between WWM and the Revised Proposal that "Carlton had a relationship with [Celador] in relation to WWM" and there is no pleaded allegation that Celador obtained a copy of the Revised Proposal from any other television company.
(o) Mr Melville contends that the Revised Proposal is a copyright work which has been reproduced by Celador, and he states that he makes no claim that Celador derived WWM from the Initial Proposal.
"findings are inconclusive as to whether the envelope and its contents had passed through the postal system on 20th May 1995 as indicated by the postmarks."
The claim of Mr Boone.
(a) The HELP! format was devised by Mr Boone and Mr Bull between 7 and 28 October 1997.
(b) The HELP! format is recorded in the document a copy of which forms attachment A to the Particulars of Claim and a two-page summary which forms attachment B to the Particulars of Claim. (In fact attachments A and B are identical four-page documents and correspond in content, although not typography, to the two-page summary which formed Attachment B to the Particulars of Claim in the Watch TV case. The typography of attachments A and B matches the typography of the 11-page document enclosed with the letter dated 30 November 2001. The latter is similar in content, although not typography, to the 14-page document which is Attachment A to the Particulars of Claim in the Watch TV case).
(c) On 16 October 1997 the HELP! format was submitted by Mr Boone to Talent TV via his agent pursuant to an agreement between Mr Boone and Talent TV made on or about 3 December 1996.
(d) On or about 30 October 1997 Mr Kaye Cooper of Talent TV submitted the HELP! format and/or the two-page summary to Ms Rosencrantz of ITV.
(e) Mr Boone retains full copyright in the HELP! format, although it is also alleged that Mr Bull enjoyed a 50% beneficial interest.
(f) The HELP! format was submitted to ITV in circumstances such that ITV came under a duty of confidence.
(g) In August 1998 Mr Boone became aware of a newspaper interview with Chris Tarrant in which he described WWM. When WWM was first aired in September 1998 he immediately realised that his rights had been significantly breached.
(h) The production and broadcasting of WWM has infringed Mr Boone's copyright in the HELP! format and constitutes a breach of confidence.
Abuse of the process
"In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
"It may very well be, as has been convincingly argued (Watt, "The Danger and Deceit of the Rule in Henderson v. Henderson: A new approach to successive civil actions arising from the same factual matter," 19 Civil Justice Quarterly, (July 2000), page 287), that what is now taken to be the rule in Henderson v. Henderson, has diverged from the ruling which Wigram V.-C. made, which was addressed to res judicata. But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."
Does Mr Boone have a real prospect of success?
"similar, if not identical, creative material may be submitted to a receiver by different originators at different times. This code does not restrict the freedom of receivers to select the best creative material from the best talent in accordance with commissioning and scheduling priorities."
Mr Boone described this attitude as 'the atmosphere' at the time.
"has more extraneous marks associated with it than other entries on these pages, but the reason for this is not clear, particularly in the absence of any demonstrable evidence of insertion of the entry."
Once again I do not consider that Mr Boone has any prospect of establishing that the entry in the log is in any way false or deceptive.
(1) stripping the programme (see para 18 above),
(2) the method of recruiting contestants (see para 19 above),
(3) the Title "Who wants to be a Millionaire?" (see para 20 above),
(4) dressing the presenter in dark clothing (see para 21 above),
(5) the use of high stools (see para 21 above),
(6) other elements of the set (see para 21 above),
(7) the inclusion of a box of money on stage and the use of cheques (see para 22 above).
The claim of Mr Baccini
(a) In 1982 Mr Baccini created a board game known as Millionaire.
(b) In 1990 Mr Baccini created an outline for a game called BT Lottery, based upon a lottery of telephone numbers. He sent this to British Telecom in 1991.
(c) At some unspecified point Mr Baccini incorporated the money-raising feature of BT Lottery into the Millionaire TV format.
(d) In March 1995 Mr Baccini sent Millionaire to Complete Communications Corporation Ltd ("CCC"), supposedly a sister company to Celador but in fact its holding company. It is unclear exactly what is alleged to have been sent to CCC at this time.
(e) In January 1996 Mr Baccini sent Millionaire to ITV and CCC. Copies of the documents alleged to have been sent are appended to his Particulars of Claim behind the page headed "What was sent to Celador and ITV". They included three pages describing the TV format.
(f) At all times a duty of confidence existed between Mr Baccini and all of the Applicants.
(g) In January 1999 Mr Baccini saw an article about WWM in the Daily Mail and recognised that the article was possibly referring to his game. Subsequent further research established that many features of WWM were the same as those featured in Millionaire, and that all the key features and mechanics of Millionaire had been copied into WWM. In addition the method of raising prize money which formed part of BT Lottery had been copied into WWM.
(h) The production and broadcasting of WWM, and the production and marketing of the WWM board game and computer game, has infringed Mr Baccini's copyright(s) in Millionaire and/or BT Lottery and constitutes a breach of confidence.
Summary
(1) Mr Melville has real prospects of success on his defence and counterclaim to the action brought by Celador on 22nd January 2003. Consequently I dismiss the application of Celador dated 30th June 2003 for their summary dismissal.
(2) The institution and prosecution by Mr Boone of the claim issued by him on 14th October 2003 against ITV and Celador is an abuse of the process of the court. In addition he has no real prospect of success in respect of it. For both these reasons I will make the order sought in the application of ITV and Celador issued on 15th March 2004.
(3) Mr Baccini has real prospects of success in respect of his claim issued on 22nd December 2003 against Celador, ITV, Smith, Briggs, Knight, Whitehill and Rosencrantz. Accordingly I dismiss the application for the summary dismissal of his claim issued by the defendants on 18th February 2004.
I will hear further argument on the form of the orders I should make, on costs and on any other matters consequential on these judgments.