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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> IPC Media Ltd v News Group Newspapers Ltd [2005] EWHC 317 (Ch) (24 February 2005)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2005/317.html
Cite as: [2005] EWHC 317 (Ch), [2005] EMLR 532, [2005] EMLR 23, [2005] FSR 35

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Neutral Citation Number: [2005] EWHC 317 (Ch)
HC4C02246

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

The Royal Courts of Justice
24th February 2005

B e f o r e :

MR. JUSTICE HART
____________________

IPC MEDIA LIMITED
Claimant
- and -
NEWS GROUP NEWSPAPERS LIMITED
Defendant

____________________

Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737

____________________

MR. D. ALEXANDER Q.C. (instructed by Arnold & Porter (UK) LLP) appeared on behalf of the Claimant.
MR. M. PLATTS-MILLS Q.C. (instructed by Farrer & Co.) appeared on behalf of the Defendant.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    MR. JUSTICE HART:

  1. The claimant is the publisher of a weekly magazine called: "What's on TV" and is the owner of the copyright which subsists in the logo and cover layout of the magazine. The defendant is the publisher of the daily newspaper, The Sun. On Wednesday, 7th July 2004 The Sun carried a half page advertisement promoting the relaunch of its own free television listings magazine called TV Mag. The advertisement featured the reproduction of the front cover of the 10th to 16th July 2004 edition of What's on TV. Notwithstanding protests by the claimant, the defendant issued with its Saturday, 10th July edition of The Sun a package containing in edition to TV Mag itself the document in the style of a letter from the editor of The Sun which document also contained a reproduction of the front cover of What's on TV, on this occasion the cover of the 26th June to 2nd July 2004 edition.
  2. This was not the first occasion on which this tactic had been used by the defendant in the promotion of TV Mag. The same tactic had been used in October 1998 when TV Mag was first launched. The front cover of What's on TV and another publication of the claimant, TV Times, had been used in a similar way. On that occasion, following the issue of proceedings, matters were resolved between the parties on the basis of the following contractual undertakings.
  3. "1. That the defendant will not, whether acting by its directors, officers, servants agents or any of them otherwise howsoever, do, nor authorise, procure or assist any person or entity to do the following acts or any of them, that is to say:

    1.1 Infringe the copyrights of the plaintiff by making a copy of or by issuing to the public copies of the whole or any substantial part of the front cover of the issue of the plaintiff magazine called TV Times dated 10-16th October 1998.
    1.2 Infringe the copyrights of the plaintiff by making a copy of or by issuing to the public copies of the whole or any substantial part of the front cover of the issue of the plaintiff's magazine called What's on TV dated 29th August-4th September 1998.
    1.3 Infringe the copyrights of the plaintiff by making a copy of or by issuing to the public copies of the whole or any substantial part of the logos of the words What's on TV and TV Times by the plaintiff for the titles with said magazines or the layouts of any cover of What's on TV and/or TV Times.
    2. The defendant will pay the plaintiff the sum of 8,000 in satisfaction of the plaintiff's claim for costs and damages/account of profits and interest thereon.
    3. The defendant acknowledges that the plaintiff owns the copyright in the layout of the plaintiff's magazines called TV Times dated 10th-16th October 1998 and What's on TV dated 29th August to 4th September 1998 and in the logos the words TV Times and What's on TV used by the plaintiff for the titles of its magazines."

  4. The claimant now seeks summary judgment against the defendant on the basis that the reproduction of its logos and front covers in July 2004 constituted breaches of its literary and artistic copyright in the layout of the front covers of the relevant editions of What's on TV and its artistic copyright in the What's on TV logo, and that the same constituted a breach of the contractual undertakings given on 1st March 1999, in particular that given by 1.3.
  5. So far as the copyright claim is concerned, the defendant accepts for the purposes of this application that copyright subsists in both logo and covers and is owned by the claimant, but the defendant relies on the statutory defences provided by s.30(1) and s.30(2) of the Copyright Design and Patents Act 1988. Section 30(1) provides:
  6. "Fair dealing with a work for the purpose of criticism for review of that or another work or of a performance of a work does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement."

    No issue arises in this case about the existence of a sufficient acknowledgement. Sub-section (2) provides:

    "(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that subject to (sub-section (3)) it is accompanied by a sufficient acknowledgement."

    Again, no question of an acknowledgment arises in this case.

  7. The form of the advertisement on 7th July took the form of headline text reading "New in Saturday's Sun - Why pay? The biggest and the best is free" under which were reproductions of the covers of three magazines: What's on TV, another competing magazine, TV Choice and TV Mag with accompanying text in a box reading:
  8. "It is bigger than TV Choice, which is just 76 pages and costs 40p. It's bigger than What's on TV which is 84 pages and costs a whopping 45p. Yes, The Sun's new TV Mag is a fabulous 88 pages and it is absolutely free with your favourite paper this Saturday and every Saturday. Don't miss your magnificent copy this weekend. Why pay for less, 88 pages."

  9. The editor's letter again contained reproductions of covers of editions of What's on TV, TV Choice and TV Mag and the text of the letter read:
  10. "Dear Reader,
    Welcome to our brilliant new 88 page TV Mag. Our Saturday glossy is now bigger, brighter and much, much better. In fact it is the biggest and best television's listings magazine available. All your favourite features are still there- we just made them a whole lot bigger and better.
    We now have six pages of listings every day with pick of the day for all your favourite channels including satellite and cable. Our soaps guide is now eight pages. That is bigger than any TV magazine even the ones you can buy in the shops!
    Our movie guide is now a massive seven pages and includes the latest cinema, DVD and video releases. TV secrets is our new gossip and news column which will keep you up to date with all that is hot on TV. There is a new coffee time section full of prize puzzles and competitions plus there are lots more great features about your favourite stars and shows.
    Look at the two magazines above next to your bigger and better TV Mag. You have to pay 45p and 40p for them -why bother when you can get your 88 page TV Mag free with The Sun every Saturday?

    Yours sincerely, the Editor."

  11. The claimant submits that neither of the uses constitutes either criticism, review or the reporting of current events, and that even if the contrary is arguable the defendant's actual use of its copyright work cannot in the circumstances be characterised as fair dealing.
  12. Mr. Platts-Mills, on behalf of the defendant, submits that the use can be justified, or at least arguably can be justified, under one or other or possibly both headings. In a nutshell, if it is fair so to confine him, his argument was that his client had merely been engaged in the process of comparative advertising and that it was not only permissible to refer to the claimant's title for that purpose, but indeed promoted the public good of ensuring consistently with the objectives of EC Directive 97/55/EC (which I will call the Comparative Advertising Directive) that consumers were sufficiently informed of their opportunities. Its use of the claimant's copyright was in no sense competing commercially with the claimant's ability to exploit it. The only use made by it of the copyright material was for the purpose of identifying the product with which it wished its own to be compared.
  13. In submitting that the use was "for the purposes of criticism or review", Mr. Platts-Mills referred me to the decision of the Court of Appeal in ProSieben Media AG v. Carlton UK Television Ltd. [1999] FSR 610. That case concerned a claimant's copyright in a recording of an interview with a lady who had become pregnant with eight foetuses. The defendants made and broadcast a television programme which included a substantial extract from the claimant's recording and sought to justify that by reliance on s.30(1) and (2). In giving his judgment, Robert Walker LJ (as he then was) with whom Henry and Nourse LJJ agreed, made the following observations material to this case:
  14. (1) That the words 'for the purpose of' imported no need to consider the mental state of the alleged infringer. They could be treated as the equivalent of "in the context of" or "as part of an exercise in";

    (2) That mental state might, however, be important in coming to a decision as to whether or not there had been fair dealing;

    (3) The expressions criticism or review and reporting current events are "expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They are expressions which should be interpreted liberally."

    (4) "That criticism of a work need not be limited to criticism of style. It may also extend to the ideas to be found in a work and its social or moral implications."

    The relevant passages in which these observations are to be found are at pp.620 and 621 of that report.

  15. Accordingly, submitted Mr. Platts-Mills, it was clear that the criticism or review referred to in s.30(1) did not have to be criticism or review of the copyright work itself. It was sufficient that the otherwise infringing use had been made in the context of criticism of the product represented by the copyright work. In the present case the defendant was, in ordinary language, criticising or reviewing the claimant's product and "as part of that exercise" had identified that product by reproducing the copyright work.
  16. It seems to me that, if it be correct to isolate the phrase "for the purpose of criticism or review" then, although the tongue has to perform an act of no small intimacy with the cheek in making the argument, it is arguable that the offending publications can be characterised as criticism or review. I am less easily persuaded that the kind of criticism in question arguably constitutes criticism "of the [claimant's] work or of another work" within the meaning of the sub-section. In ProSieben Media the view seems to have been taken that some use of copyright work was appropriate if the criticism there sought to be made of cheque book journalism was to be effectively presented. In the present case that can hardly be said. All that needed to be done to make the desired criticism of the claimant's product was to identify it. That could readily be done without infringing the defendant's copyright.
  17. Those reflections lead me to think that the key to the solution of this case, in the sense of deciding whether it is a fit one for summary judgment, lies rather in the question whether the defendant's use amounted to fair dealing. Indeed, as Robert Walker, LJ pointed out in ProSieben Media, the arguably better approach is to take the first 24 words of s.30(1) and the first 16 words of s.30(2) as a single composite phrase. As he also pointed out on p.621 in relation to the wide meaning to be given to criticism or review and to reporting of current events:
  18. "The nearer that any particular derivative use of copyright material comes to the boundaries, unplotted though they are, the less likely it is to make good the fair dealing defence."

  19. Fair dealing is an elusive concept. In Ashdown v. Daily Telegraph [2002] RPC 235. The Court of Appeal, Lord Philips, Robert Walker LJ and Keene LJ, treated as accurate and helpful the summary of the position contained in paragraph 2016 of Laddie, Prescott and Vitoria, the Modern Law of Copyright and Designs, which was in the following terms:
  20. "It is impossible to lay down any hard and fast definition of what is fair dealing, for it is a matter of fact, degree and impression. However, by far the most important factor is whether the alleged fair dealing is in fact commercially competing with the ... exploitation of the copyright work, a substitute for the probably purchase of authorised copies, and the like. If it is, the fair dealing defence will almost certainly fail. If it is not and there is a moderate taking and there are no special adverse factors, the defence is likely to succeed, especially if the defendant's additional purpose is to right a wrong, to ventilate an honest grievance to engage in political controversy and so on.

    "The second most important factor is whether the work has already been published or otherwise exposed to the public. If it has not, and especially if the material has been obtained by a breach of confidence or other mean or underhand dealing, the courts would be reluctant to say this is fair. However, this is by no means conclusive for sometimes it is necessary for the purposes of legitimate public controversy to make use of "leaked" information.

    "The third most important factor is the amount and importance of the work that has been taken. For, although it permissible to take a substantial part of the work (if not there will be no question of infringement in the first place) in some circumstances the taking of an excessive amount, or the taking of even a small amount, if on a regular basis, would negative their dealing."

  21. Judged against those three criteria, it seems to me at least arguable that the defendant's use in the present case passes all of them. As to the first, the use complained of is not itself one which competes with the claimant's product. As to the second, there is obviously no use of previously unpublished material. As to the third, while it can be said that the whole of the copyright work, as opposed to the product, has been copied, it has not been copied in such a way as to reproduce all its essential features; in particular large parts of the text on the cover are not particularly legible in the reproduction.
  22. The feature relied on by the claimant as rendering it unarguable that this use is a fair dealing is the simple fact that the purpose of the whole exercise was to reduce sales of the claimant's product and that that purpose could equally well have been pursued without using the copyright material. The claimant, I should say, additionally relies on the fact that the use is, in its submission, in breach of the earlier contractual undertaking.
  23. I do not find this an altogether easy point. Assuming everything else in the defendant's favour, does the fact that the use occurred in the context of the claimant's desire to advance the claims of its own product over those of the claimant's make its use of the claimant's copyright unfair? Mr. Platts-Mills' main plank for the assertion that it did not appeared to be his reliance on the value promoted by the Comparative Advertising Directive. This, it seems to me in no way assists his case for at least three reasons. First, the directive itself does not have a direct effect as between the parties of this litigation.
  24. Secondly, the regulations which implement it (see the Control of Misleading Advertisements Regulations 1988 as amended) expressly provide by regulation 4(a)(iii):

    "The provisions of this regulation shall not be construed as (a) conferring a right of action in any civil proceedings in respect of any contravention of this regulation (save as provided for in these regulations) or

    "(b) Derogating from any right of action or other remedy (whether civil or criminal) in proceedings instituted otherwise than by virtue of these regulations."

  25. Thirdly, in so far as the directive touches on intellectual property law at all, it does so in the context of trademarks reciting as it does as in recital 14:
  26. "Whereas it may however be indispensable in order to make a comparative advertising effective to identify the goods or services of a competitor making reference to a trade mark or trade name of which the latter is the proprietor."

    I comment that even if the leap is made from trademark law to the law of copyright, there is no requisite indispensability here. The defendant did not need to infringe the claimant's copyright in order to identify the comparator product.

  27. The reason why I regard the question as a relatively difficult one is that the concept of fairness is highly sensitive both to context and to contemporary mores. Our current political and economic culture, reflected in a variety of legal norms, places a high value on competitiveness in the market place including for that purpose the consumer's right to information. That notion necessarily involves activities which are aimed at the promotion of one product at the expense of another. It can be argued that the existence of such a motive can hardly by itself convert an activity which might otherwise be a fair dealing into an unfair one. On the other hand, our legal culture also places a high value on copyright, to the extent indeed of criminalizing its infringement.
  28. The fact that I find it a difficult question is not however a reason in itself for refusing to answer it in the context of a summary judgment application. If facts might emerge at trial which would assist the right balance to be struck that might be a reason for deferring decision on the point. Mr. Platts-Mills urged that this might be the case. He suggested that research by or on behalf of his clients might reveal that in contemporary newspaper culture it was widely accepted that the use of copyright material in the context of comparative advertising was entirely acceptable and that such evidence might satisfy the trial judge as to the fairness of his client's dealings in the present case.
  29. Were that the case, however, I would have expected his client to have been able to produce, given the enormous resources available to it, at least one example of such a usage. However, this it was unable to do. The examples in fact provided consisted either of comparative advertising which markedly did not use copyright material, or review articles which did use copyright material of the kind used here, but which only did so in the context which was not one, ostensibly at least, of comparative advertising. Moreover, the decided cases which had involved similar fact situations as the present, of which Newsgroup Newspapers v. Mirror Group Newspapers (1986) Limited [1989] 1 FSR 126 and IPC Magazines v. MGN Limited [1998] FSR 431, are the most prominent examples, do not indicate, to put it mildly, any readiness on the part of participators in the industry to allege that such usage represents fair dealing for the purposes of criticism or review or the reporting of current events; nor, indeed, does the willingness of the defendants give the undertakings which it did give in 1998.
  30. In my judgment, the solution to the question posed by the present case lies in the very feature which Mr. Platts-Mills claims to be the virtue of his client's use of the claimant's copyright work. The virtue is said to be that the defendant is merely using the copyright work for the purpose of identifying the claimant's product and not because it wishes to make unfair use of the copyright work itself. But this, it seems to me, ignores the fact that the essential, or at least principal, function of the copyright work in the claimant's trade is to identify the claimant's product and to do so for the benefit of the claimant. The claimant has devoted its skill and labour in the production of literary and artistic work for the very purpose of identifying its product for its own commercial purposes. In copying the work to advance its own competing commercial purposes at the expense of the claimants, the defendant was taking advantage of the fact that the claimant's work has created that literary/artistic identity for its product. I do not think that that can be described as a fair dealing "in the context of" or "as part of an exercise in" or "for the purpose of the criticism or review of" the claimant's work. If it is not fair dealing for that purpose, as I do not think it is, it cannot in my judgment be fair dealing for the purpose of reporting current events. I should add that in so holding I should not be taken to be accepting that the publications complained of can be properly be described as such reporting.
  31. Having reached the conclusion I have, it follows in my judgment that the claimant is also entitled to succeed on its contractual claim. The contrary argument was that undertaking 1.3 related only to logos used by the claimant and front covers in existence as at 1st March 1999 and there was no evidence that the logo now being used was the same as that referred to in the undertaking. As a matter of construction it seems to me that the point is just arguable in relation to the logos, but it seems to me that that point is unarguable in relation to the copying of covers. The word "any cover" in undertaking 1.3 is plainly apt, in my judgment, to refer to a cover produced after the date of the undertaking. Accordingly, for those reasons, in my judgment the claimant is entitled to the relief it seeks by way of summary judgment.
  32. MR. ALEXANDER: My Lord, two matters consequential upon my Lord's judgment. First of all, the question of costs and, secondly, the question of form of order.

    MR. JUSTICE HART: Yes.

    MR. ALEXANDER: Perhaps I could deal with the form of order first of all. There is not actually a minute of order for the court, but we would ask for relief in terms of the prayer for relief in the particulars of claim which you will find in tab 2 of the bundle. In paragraph 1, those are the usual injunction, delivery up. My Lord, what I would suggest in relation to delivery up is that my learned friend and I, or our respective solicitors, endeavour to agree a reasonable approach on that. It may be, for example, there are archival copies and so forth that the defendants want to retain and ... difficulty in relation to a minor matter along those lines.

    Enquiry as to damages, what we say is there should simply be an enquiry as to damages or option and counter-profits. Directions in these kinds of cases are usually made for disclosure of materials or that the claimant can decide whether to pursue an enquiry or an account realistically one suspects, but given my Lord's judgment it is quite likely that matters will be resolved before one gets to that stage. In any event what we would suggest again is that we endeavour to agree some kind of direction in relation to what should happen if my Lord indicates that in principle that would be appropriate. Then an order for payment, that will just be consequential upon an enquiry. Further or other relief, that does not arise.

    As regards costs, we respectfully submit that we are entitled to our costs of the action and this application. Since it is less than one day, or anticipated to be a one day application, we have prepared a statement of costs for that hearing which perhaps I could hand up to my Lord. (Handed)

    MR. PLATTS-MILLS: Is it my hearing or...

    MR. ALEXANDER: I will find out. I have only just been handed this.

    MR. JUSTICE HART: Before we get onto costs can we deal with the form of the order?

    MR. ALEXANDER: Yes, of course.

    MR. JUSTICE HART: A point that occurs to me on your undertaking 1C is that on the way in fact I have given judgment I think that has to be limited to the copying of covers.

    MR. ALEXANDER: Yes, so be it. We will obviously endeavour to agree a minute that reflects what my Lord has said in the judgment rather than trying to do it, as it were, on the hoof now, but that must be right in principle.

    MR. JUSTICE HART: Mr. Platts-Mills, do you have any comment generally -- is there any principle you think you need me to rule on before you go away and agree ----

    MR. PLATTS-MILLS: I do not think there are. I do not think we can resist the form of injunctions that my learned friend is asking for. I am grateful for my learned friend's indications in relation to delivery up. My understanding is that we do not know what there is, but there may be material in archival form somewhere or other, and what I suspect is that the bigger fear for the claimant is not that we may use old covers that may be an archive but that we may use future covers as to which we have access to them freely because they keep publishing them.

    MR. JUSTICE HART: Yes.

    MR. PLATTS-MILLS: The injunction really is intended, I anticipate, to have greatest effect on future covers rather than whatever may be in The Sun last year. In any event, perhaps we can talk about that and resolve it that way. Again, I am perfectly happy to consider my learned friend's proposals about an order in relation to enquiry and disclosure and so forth for that, and then there is the issue as to costs. I cannot resist an order for the costs of the action which would include the costs of this application. I would resist summary assessment because we are specifically dealing with the costs of this application which is a one day application.

    MR. JUSTICE HART: I do not have the sheet of paper now. Has it reached me yet? (After a short pause) Thank you.

    MR. PLATTS-MILLS: Can I hand up a copy of our schedule which only relates to the application? (Handed) My Lord, what I would suggest in relation to costs is that there should be an order that my client should pay any claimant's costs, that there should be a detailed assessment unless otherwise agreed.

    MR. JUSTICE HART: Yes.

    MR. PLATTS-MILLS: And that that is the appropriate way of dealing with costs.

    MR. JUSTICE HART: Then I would also be bound, and if I were not anyway bound by the rules to consider I would no doubt be invited, to consider making an order for payment on account.

    MR. PLATTS-MILLS: Yes, certainly, but in my submission that is the more appropriate way of doing it than inviting your Lordship to attempt to assess costs which go back to last July that relate to the entirety of the action rather than just a limited part of it which is today's application which would be covered by the normal rules.

    MR. JUSTICE HART: Yes.

    MR. PLATTS-MILLS: I could not resist an order for a payment on account obviously, subject to debate about how much.

    MR. JUSTICE HART: Yes.

    MR. ALEXANDER: My Lord, on the basic terms of order we will endeavour to agree that. In relation to costs, in my respectful submission it would be appropriate to make a summary assessment of the application ----

    MR. JUSTICE HART: You do not have a separate statement of costs for the application?

    MR. ALEXANDER: My Lord, I will take instructions on that. My Lord, I apologise, this actually is a statement of costs relating to the entire action.

    MR. JUSTICE HART: I am somewhat relieved to hear it.

    MR. ALEXANDER: So the application is not struck out.

    MR. PLATTS-MILLS: ...

    MR. ALEXANDER: Yes, of course. In that case in making an order separately in relation to the application may be thought not entirely straightforward to strike all of it out. In any event would respectfully submit that there ought to be an order for interim payment and the ordinary approach is that one follows the Miles v. Technolog approach, which is in the White Book, is that ordinarily about 40% of the proposed bill is payable in a case of this kind.

    We respectfully submit that it is likely that we will be entitled to considerably more than that for two reasons. First of all, the defendants put us to proof of title and subsistence of copyright. We had to get evidence from people dealing with that and evidence to which you have not been taken. The position was only ultimately conceded in relation to the logo for the purposes of this application.

    MR. JUSTICE HART: I should have made that clear in my judgment.

    MR. ALEXANDER: And that was something that had to be done at least in that respect.

    MR. JUSTICE HART: Yes.

    MR. ALEXANDER: And in my respectful submission you can, as it were, see the tirade of the evidence here, indeed the tirade of submissions and we submit that it is rather likely that a substantial portion of these costs will be awarded to us in due course. We would therefore make a submission that the interim payment should be somewhat more than the ordinary 40% of the proposed bill. I will just take instructions if there is anything else that ought to be said. (After a short pause) My Lord, questions of additional boundaries, flagrancy benefit, and so forth, that will all be canvassed in the enquiry as to damages and will be the subject of the directions for an enquiry in due course. I do not think it is appropriate to ventilate that further before my Lord today.

    MR. JUSTICE HART: Yes.

    MR. PLATTS-MILLS: My Lord, if your Lordship were minded to order an interim payment of the order of 40% then I would not oppose it. If your Lordship is thinking of something rather more than that then I want to go into a little bit of detail.

    Your Lordship will recall in our defence we admitted subsistence and ownership of copyright in relation to the layout, not in relation to the logo. The evidence that has been put forward by the claimants, which in our submission has been likely to have been reflected in a large amount of the costs, has been evidenced from Mr. Richardson as to the creation of the layout. There is a great deal of evidence from them about what they did and when they did and how they had meetings here, there and everywhere which is all concerned with the layout which was not in issue. In our submission, rather more than half of the evidence that has been put in has been completely irrelevant and should not have been put in at all. My Lord, those are obviously matters which can be canvassed at a detailed assessment, but in our submission there is nothing about this case that would suggest that it is anything different from the ordinary and that something of the order of 40% would be about right.

    MR. JUSTICE HART: Yes.

    MR. ALEXANDER: My Lord, just to come back on that, in fact the evidence deals both with the question of logo and layout. Copyright was not ... in the logo. You will recall from the IPC case that there was very extended argument as to whether or not copyright subsisted in the logo and layout and it was thought ... would cover both of those since the claim is in relation to it. In fact it is not irrelevant because one of the matters that my Lord has taken into account in coming to the conclusion ... is the extent to which this work was, as it were, valuable artistic work ... and to that evidence going to the value of the work in its creation, and so forth, is prima facie relevant. So we respectfully submit that it is relevant on any view and we would be entitled to our costs of that on an assessment.

    MR. JUSTICE HART: Yes. This is a case where it is appropriate to order a payment on account. A rule of thumb might be 40%. The sum sought is altogether in relation to costs of the action and the application is 67,000-odd. I think that no injustice will be done if I order a payment on account of 27,000.

    MR. ALEXANDER: My Lord, usual terms, 14 days.

    MR. JUSTICE HART: Yes.

    MR. ALEXANDER: We think that may include VAT but in any event we will sort out what the consequences are between ourselves. I cannot imagine that is going to create any difficulties.

    MR. PLATTS MILLS: My Lord, a final matter, permission to appeal. Clearly this is an important area of law so far as my clients and the media generally are concerned. This is an aspect which has not been dealt with by the courts before in the context of comparative advertising. The inter-relationship between the European and general commercial aspects of the case and the copyright provisions is again an important matter, and not an easy matter in my submission, although obviously your Lordship has in your judgment come to a conclusion and may have found it easier than I think, but, nonetheless, in our submission it is not necessarily a straightforward area. In those circumstances I would ask for permission to appeal.

    MR. ALEXANDER: We would say that the matter should be taken up with the Court of Appeal. First of all, the ultimate position can turn on a particular interpretation of the law... Secondly, in relation to the European points, my Lord has held, and we say plainly correctly, that the comparative advertising directive points do not assist on any view. This is not a case that the Court of Appeal should be invited to be troubled with. If they wish to consider it they can grant permission themselves.

    MR. JUSTICE HART: No, Mr. Platts-Mills, you will have to seek your permission from the Court of Appeal.

    _____________


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