In Phonographic Performance v Abimbola Balogun t/a Mama Africa, Miss Penelope Reed QC (sitting in the High Court) determined the defendant’s appeal of Master Price’s refusal to set aside a summary judgment against him. The claim was brought by Phonographic Performance for infringement of copyright – Mr Balogun having allowed DJs to play music at private parties on his restaurant premises.
The case has both procedural and substantive significance regarding:
- How to approach the question of non-attendance in an application to set aside a summary judgment.
- The possible breadth of liability for copyright infringement.
The defendant was served with the application for summary judgment but did not attend the hearing on 20 September 2017. He was then served with the summary judgment order the following day. He did not bring an application to set aside the summary judgment until enforcement proceedings were brought on 3 November 2017.
The master declined to set aside the summary judgment, applying CPR 39.3(5), because:
- The defendant had not acted promptly when he found out that the court had entered judgment against him.
- He did not have a good explanation for not attending the hearing on 20 September 2017.
- He did not have a good defence to the claim; DJs were employed by private parties, which were held at his restaurant. Thus, the master considered that the defendant took the risk regarding any music they played, including infringing copyright.
The defendant appealed the master’s decision. Counsel for the defendant argued that:
- The master had applied the wrong test, namely, that for setting aside judgment after trial where the court is concerned to ensure finality, not a summary judgment.
- The defence had real prospects of success; the defendant had authorised the playing of music, not the infringement of copyright.
- There were other reasons why the matter ought to go trial (for example, the inappropriateness of a mini-trial at the summary judgment stage).
Setting aside summary judgment
Miss Reed QC reminded herself that setting aside a summary judgment is a matter of discretion. She had to be persuaded either that:
- The master erred in law;
- The decision was outside the range of reasonable disagreement and therefore was manifestly wrong; or,
- There was a serious procedural or other irregularity that rendered the decision unjust.
She then turned to the relevant provision for setting aside or varying an order for summary judgment in the absence of a party (Practice Direction 24, paragraph 8.1).
Relying on Tubelike v Visitjourneys.com, she concluded that:
“… the promptness with which a party has acted, the reasons for non-appearance and whether the party applying has real prospects of succeeding if the matter were to go to trial are all relevant considerations.”
Thus, the requirements in CPR 39.3(5) acted as a guide, to be considered alongside other CPR provisions relating to setting aside judgment, and not applied too rigidly where there had not been a trial.
The risk of copyright infringement
Miss Reed QC observed that whether the claim had real prospects of success was a “vitally important factor”, whatever test was applied. Importantly, she concluded that the court should take into account that the defence could be amended. Thus, rather than focussing on the defence as presently pleaded, she considered whether there was in fact a defence.
Relying on PPL & PRS v CGK Ltd and others, Miss Reed QC determined that:
“… it is the authorisation of the playing of music in public which is the relevant act and not the authorisation of specific songs which infringe the copyright.”
She concluded that the defendant had complete control over the playing of music in his premises. He therefore, as a matter of fact, authorised recorded music to be played in his restaurant.
It seems that the judgment turns on theoretical, rather than actual, control over the playing of music. The result is that the risk of copyright infringement is placed almost entirely, and perhaps unfairly, upon the owners of premises. To mitigate that risk, an individual would have to seek contractual assurances from the DJ that he or she has the appropriate licences for the music being played. Beyond that, would an individual owner have to physically turn the music off should an individual party-goer request a track for which the DJ does not hold the licence?
There is another issue that the judgment does not fully address: where should the line be drawn between playing music in public and at a private party? Would a party held at an individual’s home for a child’s birthday party constitute playing music in public?
Practical tips on summary judgment
Should you be advising a client regarding summary judgment following their non-attendance, practical tips include:
- Do not underestimate the importance of applying promptly to set aside summary judgment. Do not await enforcement proceedings. Ensure that the application is filed as soon as practicably possible. Whether it was indeed filed promptly will ultimately be a matter of discretion for a judge (all of whom have very different ideas of “promptness”). Thus, it will be difficult to bring a successful appeal.
- Ensure that the exact reasons for their non-attendance are clear and at the forefront of the witness evidence.
- Finally, and importantly, whilst Miss Reed QC indicated that the court should consider that a statement of case can be amended, do not rely on the court articulating your client’s case when assessing the real prospects of success.