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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Performing Right Society Ltd v Qatar Airways Group QCS [2020] EWHC 1872 (Ch) (17 July 2020) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2020/1872.html Cite as: [2020] EWHC 1872 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST
The Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
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PERFORMING RIGHT SOCIETY LIMITED |
Claimant |
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- and - |
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QATAR AIRWAYS GROUP Q.C.S.C. |
Defendant |
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Nicholas Saunders QC and Chris Aikens (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Defendant
Hearing dates: 18th June 2020
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Crown Copyright ©
Mr Justice Birss :
i) when the relevant aircraft is present in the UK, whether on the ground or in the territorial airspace of the UK, the playing or making available of any Repertoire Work through the IFE System amounts to a public performance and / or communication to the public of that work within the meaning of sections 19 and 20 respectively of the Copyright, Designs and Patents Act 1988;
ii) when the relevant aircraft is present in Qatar, whether on the ground or in the territorial airspace of Qatar, or when the relevant aircraft is in international airspace, the playing or making available of any Repertoire Work through the IFE System amounts to a public performance and / or communication to the public of that work within the meaning of Article 7(6) and (7) respectively of the Qatari Law No.7 of 2002 on the Protection of Copyright and Neighbouring Rights; and
iii) when the relevant aircraft is present in any (other) country that is a signatory to the Berne Convention, the WIPO Copyright Treaty or the TRIPS Agreement, whether on the ground or in the territorial airspace of that country, the playing or making available of any Repertoire Work through the IFE System amounts to a public performance and / or communication to the public of that work within the meaning of corresponding provisions enacted in that country.
Foreign copyrights and jurisdiction
Forum non conveniens - the law
"(1) Is there another available forum which is clearly and distinctly the natural forum, that is to say, the "forum with which the action has the most real and substantial connection"?
(2) If there is, is England nevertheless the appropriate forum, in particular because the court is not satisfied that substantial justice will be done in the alternative available forum?"
"Stage 1: Qatar Airways bears the burden of satisfying the Court that the Qatari court is an available forum with competent jurisdiction to determine PRS's claim and is clearly or distinctly a more appropriate forum than England for the trial of the issues. If it fails to satisfy the Court of these matters, a stay should be refused.
Stage 2: If the Court determines that the Qatari court is prima facie more appropriate, it must nevertheless refuse to grant a stay if PRS demonstrate that, in all the circumstances of the case, it would be unjust for it to be deprived of the right to trial in England."
"if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum….Only if the plaintiff can establish that substantial justice cannot be done in the appropriate forum, will the court refuse to grant a stay."
"So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction…and the places where the parties respectively reside or carry on business.".
"..I cannot help thinking that it is wiser to avoid use of the word "convenience" and to refer rather, as Lord Dunedin did, to the appropriate forum".
"I do not think that [Lord Goff in Spiliada] was going so far as to say that a costs advantage could never be taken into account in carrying out this balancing exercise. It seems to me that there must be cases where a judge could reasonably and properly come to the conclusion that substantial justice would not be done via proceedings in a foreign forum, if the success of the plaintiff in monetary terms would necessarily and substantially be diminished by costs which he would have to pay there but would not have to pay here."
"..it is accepted by both experts that a Czech judge hearing this dispute would probably not come to it with anything like the same background knowledge or the same experience of commercial documents and large-scale litigation as a Judge of the Commercial Court. However, I decline to deduce from this that Czech judges lack the experience to do justice in a case like this one. For different reasons, the same points could be made about many jurisdictions, including some with highly developed legal system.…These courts have to educate themselves by hearing the case, which is the nature of judicial life. This state of affairs no doubt diminishes the efficiency of the system. But it would be absurd to say that substantial justice is not to be had in these places. Specialist Courts such as the Commercial Court are rare in the world of litigation, but even in the Commercial Court, judges have to deal from time to time with complex and wholly unfamiliar fields of business."
Forum non conveniens – stage 1
i) the personal connections the parties have to the countries in question;
ii) factual connections which the events relevant to the claim have with the countries;
iii) applicable law;
iv) factors affecting convenience or expense such as the location of witnesses or documents.
Personal connections the parties have to the countries in question.
Factual connections which the events relevant to the claim have with the countries
Applicable law
"…the [Qatari] court will award minimal attorney fees, with such fees determined solely by the Court without review of the actual incurred attorney fees. In practice, the costs award in respect of attorney fees is a nominal sum, equivalent to approximately £50-£150 depending on the case, which is paid into court funds rather than to the successful party. In reality the winning party will therefore only recover the amount of damages awarded by the judge and court fees, including expert fees. The winning party will not in practice be able to recover its actual attorney fees."
"While I do not disagree with Mr Al Ansari's assertion…that Qatari courts award only minimal attorney fees, it is however not a fact that courts do not award costs generally. For example, the fees of court-appointed experts can be claimed and reimbursed."
Mr Al Ansari:
"The matters on which experts may opine are limited to factual matters. Accordingly, experts cannot opine on points of law, such as the interpretation and applicability of foreign copyright law."
Mr Al-Abdulla:
"…under Article 16 of Law No.16 of 2017…, courts are empowered to appoint experts from outside the pool of approved experts and do so. As a matter of fact, in some cases, Qatari courts have indeed applied foreign legislation. Finally, Article 334 of the Civil Procedure Law allows the parties to mutually select an expert of their choice. In my assessment, Qatari courts…should be at no greater disadvantage in deciding such disputes under foreign law as a foreign court might be in deciding disputes governed by a law other than of its jurisdiction."
Mr Al Ansari:
"The Qatari court will apply a civil law approach even when considering principles of law that derive from common law jurisdictions. The judge will therefore request to see a statutory provision in support of any position put forward, even where the legal principle has a non-statutory basis. Whilst it is open to the Qatari courts to apply and interpret common law precedents, the courts are not required to do so."
Mr Al-Abdulla:
"…I disagree with Mr Al Ansari's view…In my opinion, Qatari courts will not require that a statutory provision be cited in support of arguments and claims based on non-statutory sources in particular judicial precedents. Rather, while applying common law, Qatari courts will be inclined to apply, and rule on the basis of, the relevant principles and binding precedents."
Factors affecting convenience or expense such as the location of witnesses or documents
Conclusion at stage 1
Stay on case management grounds
Conclusion
Postscript