Beiersdorf AG & Anor v Ramilort Ltd & Ors

Date

13 January 1998

Legislation

Keywords

Counsel

S Lawson-Rogers QC for the Applicants

Solicitors

H Montlake & Co, Essex

Judge

Schiemann LJ, Douglas Brown J

Court

Queens Bench Division (Crown Office List)

Reported

(1998) 21(5) IPD 21046, The Times 28 January 1998, CO/4199/96

Summary

Two applications were made for judicial review, the first one concerning a determination of Bow Street Magistrates' Court and the second a determination of Southwark Crown Court. In each case, there were two applicants, one Screen Multimedia Limited and the second one a Mr Carey Budnick, who was, in effect, the sole active director of a one-man company.

On 30 August 1996 on a prosecution brought by the Mechanical Copyright Protection Society, the company was convicted by Mrs Lorraine Morgan, a Metropolitan Stipendiary Magistrate, of ten offences of distributing unlicensed video recordings contrary to s.107 of the Copyright, Designs and Patents Act 1988. There was no complaint by the company against that conviction. Mr Budnick, however, appealed to the Crown Court against his conviction and failed. Budnick wished to appeal by way of case stated; the Crown Court had refused to state a case and he then applied with leave for judicial review of the decision to refuse to state a case.

Both the company and Mr Budnick were fined by the magistrates. The total of fines was £10,000. They appealed to the Crown Court which reduced the fines to £5,000. When they appeared before the magistrates, the company and Mr Budnick were each ordered to pay prosecution costs of £7,500. There is no right of appeal to the Crown Court in respect of a decision by magistrates as to costs (see Magistrates' Court Act 1980 s.108(3)(b)) so they also applied with leave for judicial review of that decision.

On the judicial review in relation to the costs the Applicants submitted that they were harsh and oppressive, were in the nature of disguised additional penalties, and that the orders for costs failed to have due regard to the seriousness of the relevant offences or the ability of the Applicants to discharge them. The Court noted that it had nothing in the material before them to suggest that the bill of costs as such is so high that no reasonable magistrates court could have come to the view that it should be paid, or that it should not have sensibly been incurred by the prosecution. Indeed, the position was that the prosecution had placed before the justices a bill which was examined by the Court. It indicated that just under £40,000 or so was claimed by the prosecution. It had evidently been submitted to the magistrates that this was really rather high, but the magistrates, so far as these applicants are concerned, ordered them to bear £15,000 worth of these costs.

The point was made that, when one looks through the bill of costs, there were details set out of what is alleged by the solicitors to have been the work that they were required to do in relation to these various tapes which were being sold and which contained tracks from different sources for which licences were required and had not been obtained. It was suggested that by the time it arrived at the hearing there was very much common ground.

Decision:

[The Court held that it was not possible by simply looking at the figures to form the conclusion that the bill for £15,000 is manifestly excessive for the work that was done or that the work that was done was manifestly not warranted.] The applicant also argued that in the alternative that the profit which was made on these tapes was a matter of pence rather than pounds and in those circumstances, to incur such vast expenditure is manifestly disproportionate. Therefore, a defendant, even if he is guilty of an offence, should not be required to meet such a bill.

That submission was rejected by the Court which noted that in this type of case, where research has to be done and which is concerned to some degree to pick out individual cases that come to light and then prosecute on them, it will often be the case that in order to negate various possible defences, it will be necessary to do all sorts of researches which, at the end of the day, turn out to justify the prosecution's case. Often once the research has been done, its results are not challenged by the defence, but that does not mean that it was unnecessary or disproportionately expensive research.

So far as the application in relation to costs was concerned, the application for judicial review was refused.

In relation to the other application for judicial review it was noted by the Court that the essence of the defence was that Mr Budnick realised that the items on the tapes complained of required a licence, he realised that they did not have the licence, and he had given instructions to his staff not to distribute that material until such licence was obtained, but that owing to a muddle in the office and a misunderstanding, notwithstanding those instructions given by him, these tapes inadvertently, as a result of a telephone call made to a person in the office, were in fact sent out when they should not have been. It was held that this defence, and the manner in which the findings of the courts below had been expressed raised enough of a doubt about the justice of the case to give leave for Budnick to amend his case and remit it on an appeal to the Crown Court once more.

Reviewed 30 November 2008