Pablo Star Media Ltd v E.W. Scripps Company

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 828
• Docket Number: Record No. 2015/477 JR
• Court: High Court
• Date: 21 December 2015

Between

PABLO STAR MEDIA LIMITED

Applicant

AND

E.W. SCRIPPS COMPANY

Respondent

[2015] IEHC 828

Humphreys J.

Record No. 2015/477 JR

THE HIGH COURT

JUDICIAL REVIEW

Intellectual Property – Breach of copyright – Suit for infringement – Damages – Representation of company by director – Refusal – Judicial review

Facts: Following the decision of the Circuit Court that the director of the applicant/company did not have a right of audience on appeal by the respondent thereby reversing the order of the District Court, the applicant through its director now sought leave for judicial review of the said decision of the Circuit Court. The director of the applicant/company alleged that he had the right to represent the company as the cost of hiring a solicitor would be more than the damages asked for in the original suit for infringement instituted in the District Court.

Mr. Justice Richard Humphreys struck the application for leave to seek judicial review for want of attendance of the applicant/company. The Court observed that it was a settled law as held in Battle v Irish Arts Promotion Centre [1968] I.R. 252 that a company could not be represented in the court by its managing director or officer unless there were exceptional circumstances. The Court held that the procedures for representation by a solicitor were formulated so that justice could be done effectively and appropriately and a layman would not be in a position to understand the legal implications. The Court initially adjourned the matter in order to give the applicant/company an opportunity of being represented by a solicitor; however, upon receiving information by the director of the applicant/company that the applicant/company did not want to pursue that application, the application was struck off.

JUDGMENT of Mr. Justice Richard Humphreys delivered on 21st day of December, 2015

1 The applicant alleges that on 20th April, 2014, the respondent copied a photograph which was the intellectual property of the applicant and placed it on its website.

2 Given that breach of copyright, inadvertent or otherwise, is so endemic on the web, in principle one might have thought that a simple letter of request would normally be an appropriate response to rectify matters and certainly should be responded to rapidly by any responsible website operator. Some correspondence did ensue between the parties which was not put before me, but I infer that it included a demand from the applicant for damages for the infringement. However the outcome of the correspondence was not deemed by the applicant to be sufficient redress and the applicant company launched a claim in the District Court on 29th July, 2014, seeking €3,000 damages from the respondent for alleged breach of copyright.

3 In the absence of an appearance being filed within the time fixed by the District Court Rules 1997, the applicant (through its managing director Mr. Haydn Price and not through a solicitor) certified that ‘ the sum of €3,000 is now actually due by the respondent to the claimant’. The basis for the District Court Office accepting the applicant's filings without a solicitor is highly unclear, and that decision would appear to have been incorrect. The sum of €3,000 mentioned was the applicant's claim, but the level of damages remained unliquefied in law until determined by the court. The need to ensure that court filings are correct is itself a very substantial reason why the requirement to be represented by qualified lawyers rather than unqualified persons, with the attendant safeguards and professional supervision mechanisms that are involved, is so important.

4 The matter proceeded in the District Court and a preliminary issue arose in that court as to whether the managing director of the applicant, Mr. Price, could represent the company in those proceedings. By order dated 24th March, 2015, Judge Mary Collins allowed Mr. Price ‘ to represent Pablo Star Media Limited … without the necessity of being represented by a solicitor’.

5 The respondent appealed the preliminary point to the Circuit Court, which appeal came before Her Honour Judge Sarah Berkeley on 7th May, 2015. On that date, Judge Berkeley allowed the appeal and ruled that he did not have such a right of audience. Mr. Price has relied on the fact that Judge Berkeley allowed him to address the court for the purpose of the issue as to his right of audience, but that clearly cannot assist him. I also allowed him to do likewise, but that is not a predetermination of the right of audience issue on the substance of the case.

6 The applicant company then sought to initiate a challenge by way of judicial review to the order of Her Honour Judge Berkeley dated 7th May 2015. Mr. Price first obtained an ex parte order on 11th August, 2015, from Barton J. directing the Central Office to allow him to lodge papers to bring the application for judicial review. Again he relies on this application in support of a recognition of a substantive right of audience, which it is not. It is a facilitation of him to make a case for having a right of audience, not an acknowledgment of such right. The company's application for leave then came before me in October, 2015.

7 In that application, rather than appear by way of solicitors, with or without counsel, Mr. Price again sought to address the court on its behalf. While I was happy to hear him on the issue of whether he had a right of audience, on 19th October, 2015 I held that he did not have such a right, and I now, at his request, set out written reasons for having done so. Mr. Price is under the impression that a large number of judges have afforded him a right of audience on behalf of the company, but so far as appears from what has been submitted to me, the only judge to have done so is Judge Collins, who was reversed on appeal in relation to her decision to hear him. All other judges who have heard Mr. Price in this matter (Her Honour Judge Berkeley, Barton J. and myself) have only done so in relation to his contention that he has a right to be heard on the merits, which they either rejected or did not have to decide.

8 In Battle v. Irish Arts Promotion Centre [1968] I.R. 252, the Supreme Court held that ‘in the absence of statutory exception, a limited company cannot be represented in court proceedings by its managing director or other officer or servant’ (at p. 254, per Ó Dálaigh C.J.).

9 However, given that the applicant's claim is based on EU law-related intellectual property rights, Mr. Price relied on by the supremacy of EU legislation, which argument was accepted by the District Court in allowing Mr. Price to represent the company. He seeks to rely on articles 2, 3 and 4 and recital 17 of the Intellectual Property Rights Enforcement Directive (2004/48/EC). Article 3.1 of the directive is particularly relevant, insofar as it provides that enforcement measures ‘ shall not be unnecessarily complicated or costly’.

10 He submitted that caselaw has defined that concept to mean that if one would not sensibly begin a case because it was going to cost more than the plaintiff would recover, or if the balance was 50/50 as regards what it would cost versus what one would recover, no sensible person would actually bring a case. The submission is that that is what the national court cannot allow to happen. Mr. Price submitted that this consideration is what the...