Meakin v British Broadcasting Corporation & Ors [2010] EWHC 2065 (Ch)

Case No.HC08C02082[2010] EWHC 2065 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Venue Royal Courts of JusticeDate Tuesday, 27 th July 2010
Before
MR. JUSTICE ARNOLD_________B E T W E E N:
Between
ROBIN GEORGE LE STRANGE MEAKINClaimant(1) BRITISH BROADCASTING CORPORATIONDefendants(2) PAUL ADRIAN SMITHDefendant(3) CELADOR PRODUCTIONS LIMITED (4) MARTIN SCOTTDefendant_________Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com_________THE CLAIMANT appeared in person. for in personMR. A. NORRIS (instructed by BBC Legal) appeared for First and Fourth Defendants.MS. L. LANE (instructed by Addleshaw Goddard LLP) appeared for Second and Third Defendants.__________J U D G M E N T

Introduction

[1]This is the latest in a series of cases in which an individual who has submitted proposals for television game show formats to television broadcasters and/or production companies on a speculative basis subsequently claims that his proposals have been copied in a broadcast programme or series.[2]In the present case the claimant, Robin Meakin, describes himself as a semi-retired graduate of business operations and manufacturing systems with a background in a number of business sectors including the media. Mr. Meakin alleges that the defendants have infringed his copyright in three proposals entitled respectively Cash Call Millions … Live! revision 3 ("CML3"), Cash Call Millions … Live! revision 4 ("CML4"); and Cash Call Challenge … Live! ("CCL"). Mr. Meakin also alleges that the defendants have used the information contained in his proposals in breach of obligations of confidence.[3]The principal object of Mr. Meakin's complaint is a programme entitled Come and Have a Go … If You Think You Are Smart Eenough ("CHG" or occasionally "CAHAG"). Two series of six and ten episodes, presented respectively by Nicky Campbell and Julian Clary, were broadcast by the first defendant, the British Broadcasting Corporation, between 4 April 2004 and June 2005. Mr. Meakin also complains about an entry on the BBC website describing CHG.[4]In addition to those complaints, Mr. Meakin complains about two unrelated games and a television programme said to have been developed and/or marketed by the third defendant, Celador Productions Ltd (“Celador”).[5]As well as the BBC and Celador there are two other defendants. The second defendant, Paul Smith, was at all relevant times the Managing Director of Celador. The fourth defendant, Martin Scott, is an employee of the BBC and an ex-employee of Celador.[6]Mr. Meakin first complained to the BBC by letter dated 14 July 2004. After intermittent correspondence over the next four years, he commenced these proceedings on 22 July 2008. To date the claims have not progressed very far. This is for a variety of reasons, including the proceedings being stayed for a period (for reasons which it is unnecessary to go into) and the pendency of the applications presently before the court.[7]Although Mr. Meakin has consulted a number of solicitors and barristers with a view to obtaining legal representation, if possible on a CFA basis, he has not been successful. Presently, as for most of the proceedings, he is acting in person. I have borne that fact in mind in considering the present applications, and I have also taken into account the fact that he suffers from the disadvantage of being somewhat hard of hearing. On the other hand, Mr. Meakin has been able to submit two substantial and detailed witness statements on the present applications and a 45 page skeleton argument replete with references to numerous authorities.

The applications

[8]There are three applications presently before the court. First, an application by the BBC and Mr. Scott, by application notice dated 5 March 2010, for summary judgment dismissing the claims against both those defendants for copyright infringement, and all claims made against Mr. Scott personally. Secondly, an application by Mr. Smith and Celador, by application notice dated 5 March 2010, for summary judgment dismissing all claims for copyright infringement against those defendants, an order striking out the claims for breach of confidence in relation to the unrelated games and programme, and an order striking out miscellaneous allegations made by Mr. Meakin in a response to a request for further information. The third application is an application by Mr. Meakin, by application notice dated 16 June 2010, for an order for specific disclosure, an order for third party disclosure, for permission to amend his particulars of claim, and finally to strike out certain paragraphs of the defences.[9]Mr. Meakin subsequently exhibited to his third witness statement a further draft amended particulars of claim dated 16 July 2010. Although I had understood that Mr. Meakin was seeking permission to make those amendments at this hearing, he explained to me this morning that in fact he wanted more time to consider and finalise the draft. Accordingly, I proceed on the basis that, subject to a couple of points I will mention later, his application is to amend his particulars of claim in accordance with the draft dated 16 June 2010 attached to his application notice.

Applicable principles

[10]Since the principal applications before me are for summary judgment under CPR rule 24.2, it is appropriate to remind myself of the applicable principles. They were summarised by Lewison J in JD Wetherspoon plc v. Van de Berg & Co. Ltd. [2007] EWHC 1044 (Ch) at [4] as follows:
"i) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success: Swain v. Hillman [2001] 2 All ER 91; ii) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a 'mini-trial': Swain v. Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v. Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd. v. Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63; vii) The court should be especially cautious of striking out a claim in an area of developing jurisprudence, because in such areas decisions on novel points of law should be decided on real rather than assumed facts."
[11]As for the applications to strike out, CPR rule 3.4(2) provides:
"The court may strike out a statement of case if it appears to the court - (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; …"

Mr. Meakin’s proposals

[12]CML3 is a one-and-a-half page document, the first and principal page of which consists of a flow-chart bearing a copyright notice in his name. Mr. Meakin sent CML3 to Colman Hutchinson of Celador under cover of a letter marked "private and confidential" dated 4 November 2002, which he posted on 5 November 2002. On 27 November 2002, Mr. Hutchinson wrote to Mr. Meakin saying that the idea did not have sufficient appeal to make Celador want to proceed further.[13]CML4 is a 17 page document bearing a copyright notice in the name of Mr. Meakin on the front cover, and marked "private and confidential" on every page. Mr. Meakin submitted this to Zeal Television Ltd. (“Zeal”) on 30 April 2003. On 27 May 2003 Zeal wrote to Mr. Meakin saying it was unable to take things further.[14]CCL is a seven page document bearing a copyright notice in the name of Mr. Meakin on most of the pages. Mr. Meakin submitted this to the BBC on 29 September 2003. Richard Mears of Format Development Entertainment in the BBC wrote to Mr. Meakin on 14 October 2003 acknowledging receipt but saying the BBC had a large backlog of proposals to consider. It is common ground that the BBC never in fact sent Mr. Meakin a substantive response to his proposal. The BBC's evidence is that this was, in all probability, a simple oversight.

Mr. Meakin’s claim

[15]The gist of Mr. Meakin's case in these proceedings is shortly summarised in paragraphs 6 and 7 of his particulars of claim as follows:
"6. The Claimant's works were the first to suggest that contestants at home and in the studio might use their telephones and/or other interactitivy to build cumulative scores to win a prize in a live television quiz. 7. The alleged infringing format co-produced and transmitted by the BBC, 'Come and have a go if you think you're smart enough!' (hereafter 'CHG') was described by the co-executive producer, Miram Segal of Tailor-Made Films Ltd, as 'a fully interactive live quiz event which responds to the viewers' frustrations at being unable to take part. It allows them for the first time the chance to play the same game at the same time for the same big cash prize' (source, C21media.net, 19 March 2004)."

The development of CHG

[16]The defendants have adduced evidence as to the development of CHG. This is primarily contained in witness statements of Miriam Segal, referred to in paragraph 7 of the particulars of claim, who was the principal individual behind the development of CHG, and of Mr. Scott. There is also some hearsay evidence of Mr. Smith. This evidence may be summarised as follows.[17]Ms. Segal is an experienced television and film producer. In the 1990s she worked for the BBC and BBC Films as a freelance on various drama projects. In 2001 she had started her own independent production company called Tailor- Made Films Ltd. As a result of her involvement with EastEnders and seeing an interview with Martin Kemp of that series, she had an idea for an entertainment format based on a pub quiz structure which would involve viewers at home participating in the quiz by interactive technology. She called the concept Don't Get Mad, Get Even (also known at various times and in various places as Don't Go Mad, Get Even) (“DMG”). She put together a half-page treatment and sent it to the BBC Independent Commissioning Department in May 2002. This was logged on the BBC's proposals database on 28 May 2002 but subsequently has been lost or destroyed.[18]It is material to note that this was shortly after BBC1 had first broadcast the programme Test the Nation on 11 May 2002. That was an independent production by Talent Television Ltd. in accordance with a format first broadcast in the Netherlands by BNN in 2001. Test the Nation allowed viewers at home to participate via interactive television, the internet or SMS in a multiple-choice quiz in which the studio audience and celebrity contestants were also taking part. That programme was awarded Best Use of New Technology in 2003 and proved a successful format both in this country and abroad.[19]Returning to the development of CHG, in about June 2002 Ms. Segal was invited to a meeting with the BBC at which the BBC expressed interest, and Ms. Segal was introduced to Fenia Vardanis, the BBC's Executive Editor of Format Entertainment. Shortly afterwards, the BBC commissioned a pilot programme. It appears from the proposals database that this occurred on 28 July 2002.[20]Ms. Segal spent the next few months putting together the pilot, with input from her staff at Tailor-Made, Ms. Vardanis and two employees of the BBC's New Media and Technology Department.[21]On 20 December 2002, the BBC sent a three-and a-bit page treatment of the proposed pilot programme to the well-known presenter, Johnny Vaughan. This is the earliest documentary evidence still extant of the content of DGM. The pilot was recorded on 30 and 31 January 2003, with Mr. Vaughan presenting and Ian Hamilton directing. That recording is in evidence and clearly shows the state of the format at that date. The BBC decided that further work on the format was needed, and suggested that Tailor-Made should speak to independent production companies with experience in format entertainment.[22]Between about February and about April 2003 Ms. Segal spoke to three independent production companies, including Celador, where she spoke to Mr. Smith, but she could not reach agreement with any of them. At about the same time she was also introduced to Ben Hall and Tom Ellemann of Chatterbox Partnership, who became format consultants to Tailor-Made. Chatterbox Partnership had a commercial relationship with Zeal and so the terms of the deal agreed involved Zeal having international distribution rights in respect of the proposed programme.[23]Some time in the late spring of 2003 the BBC agreed to co-produce the programme with Tailor-Made. In March or April 2003, or possibly slightly later that year, Ms. Segal was introduced to Mr. Scott. Mr. Scott has had a long career in format entertainment as, first, a cameraman, then a director and then a senior executive. He had been employed by Celador as Head of Development from late 2001 to November 2002. While he was employed by Celador he reported to Mr. Hutchinson. In November 2002, Mr. Scott was headhunted by the BBC to become Editor of Light Entertainment. He left Celador in December 2002 and started at the BBC on 13 January 2003.[24]In the summer and latter part of 2003 Ms. Segal worked on the format together with Mr. Hall and Mr. Ellemann of Chatterbox, with some input from Jo Street, who was appointed by the BBC as producer of the programme. Richard Hopkins, the BBC's Creative Head of Format Entertainment, had creative oversight. On the evidence, the BBC's representatives had little creative input into the programme. Their input, rather, was on the technical side and on compliance with editorial guidelines.[25]On 19 December 2003 the BBC and Tailor-Made entered into format and co-production agreements for CHG, the former of which recognised Tailor-Made as owners of the rights in the format.[26]Starting on 1 August 2003, and running through to 1 April 2004, there were a series of run-throughs of the format. Towards the end of that period, on 15 and 16 March 2004, a second pilot programme was recorded. The evidence of both Ms. Segal and Mr. Scott is that although Mr. Scott attended the run-throughs and made comments, his role was essentially managerial rather than creative. The evidence of both Ms. Segal and Mr. Scott is that they never saw any of Mr. Meakin's proposal documents until the present disputes arose.[27]It is pertinent to note that CHG was not very successful. Although it was recommissioned for a second series by the BBC in association with the National Lottery, it has not been broadcast subsequently. Tailor-Made and Zeal's efforts to sell the format internationally were largely unsuccessful. Ms. Segal's evidence is that a few options were sold, but the options were never exercised. Indeed, Ms. Segal's evidence is that the efforts to sell the programme abroad led to both the insolvency of Tailor-Made and her own personal bankruptcy.

The defendants' applications for summary judgment on the copyright claims

[28]Mr. Meakin originally pleaded his proposals as both literary and artistic works. At no stage has he ever alleged, however, copying of artistic content as opposed to literary content. During the course of the proceedings Mr. Meakin has recognised that the claim for infringement of artistic copyright is not appropriate, and he indicated some time ago that he would drop that claim. Although that is not in fact reflected in the 16 June 2010 draft of his amended particulars of claim, it is in the 16 July 2010 draft.[29]More recently, Mr. Meakin has indicated that he wishes to contend that the proposals attract copyright as dramatic works. Again, that is not something that is reflected in the 16 June 2010 draft of the amended particulars of claim, but it is in the 16 July 2010 draft.[30]The defendants say that the proposals do not qualify as dramatic works, relying upon the decision of the Privy Council in Green v Broadcasting Corporation of New Zealand [1989] RPC 700. I propose to proceed on the basis that the claim to subsistence of dramatic copyright is arguable in the light of the factual distinctions between the present case and the Green case, in the light of the nature of the argument before the Privy Council in that case, and in the light of the subsequent decision of the Court of Appeal in Norowzian v. Arks (No.2) [2002] EMLR 67. The defendants also submit, however, and I agree, that this does not make any difference for the purposes of the present applications.[31]For present purposes it may be assumed that copyright subsists in each of Mr. Meakin's three proposal documents and that he owns those copyrights. As I have indicated, I shall proceed on the assumption that the copyright may be as a literary work and/or as a dramatic work.[32]In order to have a real prospect of success in his allegations of copyright infringement, Mr. Meakin must have a real prospect of success on each of two issues. The first is that of derivation, the second is that of reproduction of a substantial part. The defendants contend that Mr. Meakin has no real prospect of success on either issue.[33]So far as the first issue is concerned, both the defendants and Mr. Meakin himself have drawn my attention to what was said by Mummery LJ in Baigent v. Random House Group Ltd. [2007] EWCA Civ 247, [2007] FSR 24:
"122. In particular, in cases in which the issue of copying has to be decided on disputed evidence the court should be guided by the sound legal principle that proof of similarity between the alleged infringing work and the original copyright work, coupled with proof of direct or indirect access to the original, is prima facie evidence of copying for the defendant to answer: Francis Day & Hunter Ltd. v. Bron [1963] Ch 587 at 612 per Wilberforce J (a wise judgment, which does not seem to have been cited to the judge). 123. The application of this principle and some reference to the applicable provisions of the 1988 Act (none of which feature in the judgment) would, I think, have disciplined the reasoning and strengthened the structure of the judgment. 124. The following issues frequently arise for decision in proceedings for infringement of literary copyright under the 1988 Act. Although this is not an exhaustive checklist, the following are worth bearing in mind as issues that will usually need to be considered, preferably in a chronological setting or, in more complicated cases, of sub-sets of chronologies. (1) What are the similarities between the alleged infringing work and the original copyright work? Unless similarities exist, there is no arguable case of copying and an allegation of infringement should never get as far as legal proceedings, let alone a trial. The 1988 Act confers on the owner the exclusive right 'to copy the work' either direct or indirectly (section 16). This is not an exclusive right to prevent the publication of a work on a similar subject or a work which happens to contain similar material, thematic or otherwise. (2) What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work? Unless there was some evidence from which access can be directly proved or properly inferred, it will not be possible to establish a causal connection between the two works, which is essential if the Claimants are to prove that the Defendant's work is a copy. ... (6) What are the circumstances or factors which justify evaluating the part copied in the alleged infringing work as 'a substantial part' of the original copyright work?"
[34]The defendants submit that the similarities relied on by the claimant are quite simply insufficient to give rise to any inference of copying. Furthermore, they submit that this contention is reinforced by the difficulties Mr. Meakin's case faces on the question of access. In the case of the BBC and Mr. Scott, it is not alleged that CML3 or CML4 were sent and it is submitted there is no evidence to support a claim of indirect access. As for CCL, that was sent too late to be a credible source of CHG. As for Celador and Mr. Smith, they had no real involvement in the development of CHG at all.[35]So far as the second issue is concerned, the defendants rely on what Mummery LJ said in the Baigent case in the following passage:
"143. The decision on the substantiality or otherwise of the copying of HBHG in DVC required a careful assessment or evaluation of all the relevant evidence by the fact-finding tribunal in the context of the pleaded case. This included the nature and extent of the copying, having regard to the importance, as well as the amount, of what has been copied from the original work, and the nature of the respective works. 144. The 1988 Act does not define 'a substantial part' or even indicate what factors are relevant to substantiality. I do not think that there is any real point in asking: what does 'a substantial part' mean? That sort of question is only a path to a dictionary and to the dubious substitution or addition of other words which do not help to answer the crucial question of fact: is DVC a copy of 'a substantial part' of HBHG? 145. It is more sensible to ask whether there exist in this case the necessary and sufficient conditions for characterising the parts copied from the original work as 'a substantial part' of the original work. The decided cases help in identifying the relevant necessary and sufficient conditions for substantiality. Thus, it is not necessary for the actual language of the copyright work to be copied or even for similar words to be used tracking, like a translation, the language of the copyright work. It is sufficient to establish that there has been substantial copying of the original collection, selection, arrangement, and structure of literary material, even of material that is not in itself the subject of copyright. 146. It is not, however, sufficient for the alleged infringing work simply to replicate or use items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work. 147. I agree with Lloyd LJ that no clear principle can be laid down on how or where to draw the line between the legitimate use of the ideas expressed and the unlawful copying of their expression."
[36]Since that decision, the importance of distinguishing between the taking of ideas from a literary work on the one hand and reproducing the expression of that work has been emphasised by the judgments of the Court of Appeal in Nova Productions Ltd. v. Mazooma Games Ltd. [2007] EWCA Civ 219, [2007] Bus LR 1032, the European Court of Justice in Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR 1-000, and myself in SAS Institute Inc. v. World Programming Ltd [2010] EWHC 1829 (Ch).[37]The defendants submit that, even if Mr. Meakin gets over the hurdle of demonstrating a real prospect of success on the question of derivation, Mr. Meakin has no real prospect of success of establishing reproduction of a substantial part of any of his copyright works, since the similarities he relies on amount to no more than the taking of ideas rather than the expression of any of his three works.[38]The claimant says that he does have a real prospect of success in his claims for copyright infringement and that the defendants' applications amount to an illegitimate attempt to try the case on the documents without disclosure or cross-examination.[39]I shall begin by considering the question of derivation. Mr. Meakin has had a number of goes at identifying similarities between his three proposals and CHG and the website. For the purposes of this judgment, I think it is sufficient to concentrate on the allegations in relation to CHG, since the allegations in relation to the website track those in relation to CHG and add nothing over and above the allegations in relation to CHG.[40]The first set of similarities relied on by Mr. Meakin are those set out in subparagraphs 15(a) to (w) of his particulars of claim. Those subparagraphs make a series of allegations of what are described as common features between CHG and the claimant's works. First, there are a number of common features identified in relation to CML3, then some in relation to CML4, and then some in relation to CCL. It is instructive to consider the allegations made in relation to CCL which, it will be remembered, is the only one that was sent to the BBC. These are as follows:
"(t) the majority of questions are 'general knowledge questions based on logic and questions based on stills, film and music footage'; (u) the size of the jackpot is proportional at least in part to the number/value of premium rate calls received; (v) the studio contestants participate in heats which result in one finalist, one team in CHG taking part in the play-off final against the top viewer contestant; (w) in the final the contestants are able to confer with family and friends."
It can be immediately seen these common features are really in the nature of very general abstract similarities between the claimant's proposals and CHG.[41]The matter does not end there, however. As I have indicated, the claimant has elaborated on his allegations of similarity subsequently. He has indicated in his response to the present application that he particularly relies on two sets of schedules of similarities, the first of which is annexed to a revised response to a request for further information which was served by him on 21 May 2009, and the second of which is contained in an exhibit to a witness statement of his dated 16 June 2010. It is sufficient for present purposes to concentrate on the most recent schedule since this contains the greatest level of particularity of his allegations. In this schedule Mr. Meakin compares the respective works beginning with CML3 in the first column, CML4 in the second column, then there is something called CML4 Main Pitch in the third column, CCL in the fourth column, the website describing CHG in the fifth column, and CHG itself in the sixth column, with particular reference being made to a summary of a transcript of the first episode.[42]In that schedule Mr. Meakin identifies 12 sets of similarities. I say "sets" because, although they are numbered 1 to 12, some of them are broken down into sub-divisions. By way of illustration, I can take the first item. This begins under heading CML3 with two quotations, namely "The quiz show offers every single viewer with a telephone the opportunity to participate and attempt questions to win a massive prize…" and "A live television tie-break with the 4 top scorers (who got through to the lines the fastest with the right answers) …". Under the heading "CCL" there is a quotation:
"A riveting interactive show linking viewers and the studio audience in their objective to win prizes through real skill on live TV"
. In relation to CHG, the schedule says: "In Part 1 of each episode studio contests qualify to play against the home team. The qualifying team then competes against the qualifying studio team in Part 2".[43]So far as the comparison between CML3 and CHG is concerned, it is very difficult to see that there is much similarity here at all even if one reads into the description of CHG as being implicit reference to use of a telephone. Thus one of the aspects that one sees in CML3 is the use of a tie-break between the four top scorers amongst the viewers who phoned through their answers the quickest, but that is simply not a feature that is alleged in respect of CHG here. As between CCL and CHG, one has simply the general similarity of interactivity linking the viewers with the studio audience. To the extent that they exist, the similarities are extremely general, and in my view they do not give rise to any inference of copying.[44]I do not propose to go through the remainder of the similarities blow by blow, because they are very much of the same kind. Moreover, they are rather repetitive. The same points are re-cycled in a number of different contexts and in a number of different ways. I have considered all of the similarities that are relied upon by Mr. Meakin in each of his documents and, as I have indicated, concentrated in particular on the similarities identified in the most recent schedule. In my judgment, the defendants are entirely correct to say that such similarities as exist between Mr. Meakin's proposals on the one hand and CHG on the other hand are no more than very general similarities at a high level of abstraction.[45]Furthermore, to the extent that there are similarities, generally speaking they are similarities in respect of matters which were entirely commonplace. For example, one of the matters that Mr. Meakin relies upon is the use of premium rate phone lines. That, of course, was already well known by 2002, in particular as a result of the massive success of Who Wants to be a Millionaire? which was first broadcast in 1998. Likewise, the use of income from premium rate phone calls to fund, at least in part, the prize was something that was well established by that point in time. Similarly, Mr. Meakin relies upon the fact that it was part of some of his proposals to have a split between an initial programme and a results programme. Again, that is not something that was particularly novel at that point in time.[46]Of course I bear in mind that it is no answer to a claim for copyright infringement to say that what has been copied is not unique to the claimant. Nevertheless, in considering whether there are similarities which support the inference of copying, the fact that the similarities not only exist only at a high level of generality, but also are shared by works which preceded the copyright works relied upon, is a material factor to take into account.[47]Mr. Meakin argued strongly that the fallacy in the defendants' case on these allegations was that they were taking the similarities individually. He submitted that that amounted to an exercise in dissection and that that was illegitimate. I accept that the similarities that he relies upon must be considered cumulatively and not individually. Nevertheless, as I have said, I consider that, even taken cumulatively, the similarities are quite simply insufficient to give rise to an inference of copying.[48]I turn next to consider the question of access. The defendants say that Mr. Meakin's case amounts to a series of conspiracy theories. I have to say that I agree with that assessment. Mr. Meakin has made a series of allegations in an attempt to justify the suggestion that there has been access and therefore copying. The principal allegations are as follows.[49]First, Mr. Meakin points to the involvement of Mr. Mears, who, it will be recalled, acknowledged receipt of CCL on behalf of the BBC. The defendants volunteered the fact that it appears from a diary entry that Mr. Mears attended a meeting with Mr. Scott and another BBC employee with regard to DGM on 22 December 2003. Mr. Scott's evidence is that Mr. Mears had no input into DGM and that, if Mr. Mears attended the meeting at all, it would have been for his own experience. But, in any event, Mr. Scott points out that by that point in time, which was after the signature of the format and co-production agreements, the format of CHG, as it became, was largely complete. In my judgment, the fact that Mr. Mears attended that meeting, on the assumption that he did, provides no support to any inference that Mr. Scott somehow received from him a copy of CCL and thereby copied it in CHG.[50]Secondly, Mr. Meakin points to the fact that Mr. Scott was previously employed by Celador. It is clear that Mr. Meakin regards the fact that Mr. Scott was employed first by Celador and then by the BBC as being too much of a coincidence. However, there is no evidence to suggest that Mr. Scott ever saw CML3, which was the document sent to Celador, and his evidence is to the contrary. At bottom, Mr. Meakin's case is pure speculation based on the fact that Mr. Scott reported to Mr. Hutchinson. As Mr. Scott explains, however, the procedures in Celador for considering unsolicited proposals were that Mr. Hutchinson did not share them with Mr. Scott unless Mr. Hutchinson considered that they had sufficient merit to warrant further consideration. In the present case, however, Mr. Hutchinson rejected CML3 in fairly short order.[51]Thirdly, there is the involvement of Mr. Smith. So for as that is concerned, as I have indicated, Mr. Smith was briefly involved in discussions with Tailor-Made in February to April 2003, which came to nothing. There is no evidence that he ever saw CML3, and the evidence is to the contrary. Again, Mr. Meakin’s suggestion that Mr. Smith was in some way a conduit for the transmission of CML3 from Celador to Tailor-Made and/or the BBC is pure speculation with nothing to support it.[52]Fourthly, and particularly graphically, Mr. Meakin has pointed to the involvement of a BBC employee called Louise Lawrence. She was Mr. Hopkins' personal assistant from 9 June 2003 to 16 November 2003, and Mr. Scott's personal assistant from 17 November 2003 to 30 July 2004. The suggestion that her involvement in the matter assists Mr. Meakin is based on the fact that at the end of her employment by the BBC she joined Zeal which, it will be recalled, was a recipient of CML4. However, Ms. Lawrence joined Zeal more than three months after CML4 was sent to Zeal, and indeed two months after Zeal had rejected it. The proposition that Ms. Lawrence's involvement in some way provides support for an inference of copying is fanciful in the extreme.[53]Fifthly, Mr. Meakin points to the involvement of a company called Cat and Mouse Ltd. Cat and Mouse Ltd. is a specialist IT supplier which supplied graphics software for use on CHG. Mr. Meakin's conspiracy theory arises out of the fact that Cat and Mouse Ltd, in common with Celador, was owned by Complete Communications Corporation Ltd. In other words, they were fellow subsidiaries of the same parent company or sister companies. Nevertheless, this takes Mr. Meakin nowhere. As I have indicated, Cat and Mouse Ltd. was a specialist IT supplier. There is simply no evidence that it had any involvement in the development of the CHG format. As I have said, its involvement was limited to that of supplying graphics software. There is simply no basis for suggesting, as Mr. Meakin seeks to do, that Cat and Mouse Ltd. may have been a conduit for the transmission of CML3, let alone CML4.[54]Sixthly, there is the Chatterbox Partnership. In his most recent draft amended particulars of claim, Mr. Meakin says an inference is to be drawn from Chatterbox's involvement. I think the point being made is that because Chatterbox were commercial partners of Zeal, it is to be inferred that Chatterbox was somehow responsible for CML4 being transmitted from Zeal to Tailor-Made. Once again, the suggestion is fantastic. There is not a shred of evidence to support it.[55]Perhaps most remarkably of all, there is involvement of Mr. Vaughan and Mr. Hamilton. Mr. Meakin has suggested in his evidence on these applications that adverse inferences should be drawn from their involvement in the first pilot which, it will be recalled, was recorded on 30 and 31 January 2003. In the case of Mr. Vaughan, this is on the basis that his production company, World's End, was involved in developing a programme called Johnny and Denise's Passport to Paradise with Mr. Scott before Mr. Scott left Celador, and that work continued on that programme when Mr. Scott joined the BBC. I cannot see that that has anything whatsoever to do with the development of either DGM or CHG. In the case of Mr. Hamilton, Mr. Meakin points to the fact that in the past both he and Mr. Scott have both worked on the programme Britain's Brainiest Kid. Again, I cannot see that this has any relevance at all.[56]These allegations simply demonstrate the extent of Mr. Meakin's conspiracy theories. They provide no support at all for his allegations of access and therefore derivation. I therefore agree with the defendants that the lack of evidence of access to the proposals by those who developed CHG at the relevant times reinforces the conclusion to be drawn from the similarities relied upon by Mr. Meakin, namely that Mr. Meakin has no real prospect of establishing that CHG was derived from any of his proposals.[57]I turn next to consider the second issue, that of reproduction of a substantial part. Mr. Meakin does not allege that there has been copying of text from his proposals in CHG or the website. The allegation, as I have indicated earlier, is of what are described in the particulars of claim as common features. Mr. Meakin referred to this in argument as a case of non-literal copying.[58]I entirely accept that, as the quotation from Mummery LJ's judgment in the Baigent case set out above indicates, it is not necessary for text to be copied in order for a claim for infringement of literary copyright to succeed. I also bear in mind that there is a line of cases which supports the proposition that it can be an infringement of copyright in a novel or play to copy the plot of the novel or play even if the language of the novel or play is not reproduced.[59]Even so, in my judgment the similarities between his three proposals and CHG on which Mr. Meakin relies amount to no more than general ideas at a fairly high level of abstraction and, moreover, commonplace ideas in the field of television game show formats at that. In my view, Mr. Meakin has no real prospect of success in establishing that a substantial part of the expression of any of Mr. Meakin's proposals has been taken.[60]Finally, I turn to consider whether there is some other compelling reason for trial, even though Mr. Meakin has no real prospect of success. Mr. Meakin says that there should be disclosure and cross-examination. I accept, of course, that ordinarily claims are disposed of at trial after disclosure and cross-examination and that it is not appropriate to engage in a mini-trial on a summary judgment application. In the present case, however, I consider it plain, for the reasons I have given, that Mr. Meakin's claims are simply unreal.[61]Mr. Meakin also alleges that the defendants' witnesses have made false or at least inconsistent statements. I have considered those allegations. Most, in my judgment, have no foundation. In a couple of instances, statements made at an earlier stage of the proceedings have been clarified at a later stage. I do not consider that these allegations justify the conclusion that the matter requires a trial.[62]Mr. Meakin also points, understandably, to the fact that there will be a trial of at least some of his breach of confidence claims in any event, and he submits that it makes no sense for the similarities that he relies upon to be considered twice, once on summary judgment and once at trial. In my judgment, however, in the present case that is not a compelling reason for trial.[63]On the contrary, the history of the matter shows that Mr. Meakin's allegations in relation to copyright infringement have expanded over time. As his cross-application makes clear, he is seeking wide-ranging disclosure. He is also seeking third party disclosure. In his evidence he has also said he expects some 20 witnesses to give evidence. In his draft amended particulars of claim of 17 July 2010 – albeit that, as I have indicated, he is not proceeding with that application at the moment - he is seeking to join to the claim some four additional defendants. In short, what Mr. Meakin appears to be proposing is little short of a state trial of his allegations of copyright infringement. It is manifest that trying all of these issues will be a lengthy and costly exercise. By contrast, if what I regard as Mr. Meakin's unsustainable claims are disposed of at this stage, what is left will be a case which is much smaller, more manageable and less costly to try.[64]A yet further factor that supports that conclusion is that Mr. Meakin has stated in his particulars of claim and in his evidence that he is seeking damages of up to £20 million. In my view, that is wholly unrealistic given the lack of success of CHG in the United Kingdom and the absence of international sales. If the defendants' applications are upheld, not only will any subsequent trial be smaller and less costly, I consider it may also facilitate a complete resolution of the dispute in that it may make it easier for the parties to agree a settlement of what remains.[65]A final point so far as the allegations of copyright infringement are concerned is a point taken by Celador and Mr. Smith that there is simply no pleading of any infringing acts on their part. As is obvious, CHG was broadcast by the BBC. Accordingly, the primary alleged infringer so far as that is concerned is the BBC. Likewise, the BBC is responsible for the publication of the website. In the particulars of claim there is simply no pleading of any acts of infringement by either Celador or Mr. Smith. There is a generalised bare assertion of infringement by all defendants in paragraph 18, but no specific acts on the part of Celador or Mr. Smith are pleaded.[66]I note that in the 17 July 2010 draft of the amended particulars of claim, the relevant allegation in paragraph 18 is abandoned. Instead, the case that is sought to be introduced by way of amendment is one to the effect of joint tortfeasorship on the part of Celador and Mr. Smith. That was also the tenor of Mr. Meakin's submissions to me this morning. If I consider matters on that basis, notwithstanding the fact that Mr. Meakin has not yet made the relevant application to amend, it seems to me that the matters that are pleaded in the draft pleadings are quite simply incapable of providing support for an allegation of joint tortfeasance on the part of either Celador or Mr. Smith.[67]For those reasons, there must be summary judgment in favour of the defendants on the claims of copyright infringement.

Mr Scott’s application for summary judgment

[68]The claims that Mr. Meakin makes against Mr. Scott are in respect of alleged joint tortfeasance. Again, however, Mr. Meakin has not pleaded any facts in support of that allegation sufficient to show a real prospect of success. In my judgment, there is simply no justification for Mr. Scott having been joined as a defendant to these claims, and there should be summary judgment in his favour.[69]Turning to the unrelated games and programme, as originally pleaded in paragraph 19(b) to (g) of the particulars of claim, it was very obscure as to what Mr. Meakin was actually complaining about. Subsequently, in his draft amended particulars of claim and in a witness statement, Mr. Meakin has provided further information of what he is complaining about, and this has enabled Celador and Mr. Smith to identify them.[70]The first complaint refers to what is referred to in the particulars of claim as "Phone Millionaire". This has now been identified as a stand-alone premium rate interactive voice response game developed by Celador International Ltd (“CIL”) and launched in 2004. This game was branded under the Who Wants to be a Millionaire? name. It had nothing to do with CHG. Moreover, the defendants' evidence is that this was quite simply a natural development and extension of Who Wants to be a Millionaire? which, it will be recalled, was launched in 1998. It is simply an interactive telephone game. It has really very little to do with a television game show. Furthermore, the similarities alleged by Mr. Meakin to exist between this game and CML3, which was the proposal sent to Celador, relate to features that are already present in Who Wants to be a Millionaire? These are the facts that questions are asked relating to a variety of topics with multiple choice element, that there is participation from a studio audience in answering questions, premium rate telephone services are used, and a cash prize is awarded to winning contestants.[71]The second game complained of has now been identified as an SMS game launched by CIL in June 2003, again by way of an extension of Who Wants to be a Millionaire? Again, this is something that bears no relationship to CHG and is simply a natural extension of Who Wants to be a Millionaire? Again, the similarities between this game and CML3 alleged by Mr. Meakin concern features that are already present in Who Wants to be a Millionaire? which predates CML3.[72]Finally, there is a proposed television programme that has gone through a number of different titles. First, it was called The Television Game Show, secondly The Great British Quiz, and finally Hold on to that Million. The programme in question never got beyond a pilot. It was never broadcast. Mr. Meakin has not, understandably in those circumstances, been able to identify any similarities whatsoever between his proposals and this proposed programme. In short, the claim in respect of this is quite simply wholly speculative.[73]For those reasons, I consider that the defendants are correct to say that these allegations have no real prospect of success and there should be summary judgment in their favour.[74]Mr. Meakin has made a number of allegations in a response to a request for further information which Celador and Mr. Smith say should be struck out. There are three basic types of allegation.[75]The first is what appears to be an allegation that the defendants have committed a criminal offence of copyright infringement. Since this is a civil court, that is a simply irrelevant allegation and one that simply raises the temperature of the dispute to no proper or useful end. Accordingly, in my judgment, it should be struck out under CPR rule 3.4(2)(a) and/or (b).[76]Secondly, there are a number of allegations that the defendants have engaged in a conspiracy to defraud and have acted dishonestly. No facts are pleaded which could begin to support those allegations. Accordingly, they must be struck out under CPR rule 3.4(2)(a).[77]Finally, there is an allegation of infringement of moral rights. Again, however, no facts have been pleaded by Mr. Meakin which could begin to support such a claim. Moreover, it is very difficult to see how any such claim could be tenable in the circumstances of the present case. Again, therefore that allegation must be struck out under CPR rule 3.4(2)(a).

Mr. Meakin's application to amend his particulars of claim

[78]The defendants do not resist Mr. Meakin having permission to amend to delete the claim to artistic copyright on the usual terms as to costs, and I will give permission accordingly.[79]Otherwise, the only amendments that Mr. Meakin is asking the court for permission to make at this stage relate to the allegations in paragraphs 19(b) to (g) that I considered earlier. Since I have concluded that those allegations are unsustainable even if those amendments are taken into account, it follows that permission to make those amendments must be refused.

Mr. Meakin's application for specific disclosure

[80]By this application Mr. Meakin seeks specific disclosure of 10 different classes of documents. The decisions that I have arrived at on summary judgment and striking out remove much of the basis of the application. In any event, in my judgment the application is clearly premature, since it precedes standard disclosure. Mr. Meakin makes the point that the court has jurisdiction to make an order for specific disclosure in advance of standard disclosure. That is quite correct, but I cannot see that there is any basis upon which to order specific disclosure in advance of standard disclosure in the circumstances of the present case. A yet further point is that on the evidence some of the documents sought are unlikely to exist or, if they do, they are in the possession of third parties. For all of those reasons, the application for specific disclosure is dismissed.

Mr. Meakin's application for third party disclosure

[81]Mr. Meakin seeks an order for third party disclosure in respect of documents in the possession of Ms. Segal. Again, in my judgment, the application is premature since there has not yet been standard disclosure. Moreover, notice of the application has not been given to Ms. Segal, nor has she been asked if she is prepared to give disclosure voluntarily. In any event, on her evidence, it is extremely unlikely, for reasons she explains, that she has any relevant documents. For all of these reasons, the application for third party disclosure is dismissed.

Mr. Meakin's application to strike out certain paragraphs of the defences

[82]This application concerns the second and third defendants' defence at paragraphs 19(2) and (5), and the first and fourth defendants' defence at paragraph 0 and 31(a). I am quite simply unable to see any basis upon which those paragraphs of the defendants' defences should be struck out. They simply put forward the defendants' cases. As I understood what Mr. Meakin said to me this morning, his real complaint was that matters had moved on since the defences had been served, and he was saying that the defendants should be required to amend their defences to reflect subsequent developments in the case. I do not accept that argument, particularly given the procedural history of the case. MS. LANE: My Lord, my learned friend is going to let me go first this time. There is the matter of what consequential order you should make and also the matter of costs to address. I have got an order attached to my application notice, which is at bundle 1, tab 29. It is at p.251. MR. JUSTICE ARNOLD: Yes. MS. LANE: It will have to be adapted slightly because obviously at the moment it only addresses the second and third defendants, but I think probably, broadly speaking, summary judgment, we have a paragraph saying that summary judgment has been granted against the claimant in relation to all the defendants' copyright infringement. MR. JUSTICE ARNOLD: Well, I think Mr. Norris had a draft order for his application, so presumably you can amalgamate the two. MS. LANE: Yes. Yes, indeed. I have got para.19 and various parts of the further information being struck out. We then, presumably, are going to need to have service of amended particulars and amended defences to take into account the various bits that have been struck out. That may make the order more straightforward anyway. MR. JUSTICE ARNOLD: It may or it may not. MS. LANE: Indeed. And then I have also addressed in my order directions for the remainder of the action, because I do not know whether you recall that Master Teverson adjourned directions for the CMC. MR. JUSTICE ARNOLD: Yes. Well, it is clearly appropriate to give those directions. Let me come back to what you were saying a moment ago. I am not going to make any order for amendment of the pleadings consequential on my order. Strictly speaking, it is unnecessary. Sometimes it is done as a matter of good order but I am reluctant to venture down that path with a litigant in person. MS. LANE: As you say, it may cause more problems than it solves. MR. JUSTICE ARNOLD: I think that is the risk. MS. LANE: You have given a very clear judgment and we will obviously have the order and, with any luck, everyone will know where they stand. MR. JUSTICE ARNOLD: I think that is easier. If it transpires that amendments are needed, it is probably better dealt with further down the line. MS. LANE: Yes, my Lord. Perhaps I should address you on costs, because that is obviously crucial to my clients. MR. JUSTICE ARNOLD: Yes. MS. LANE: We say that we should have our costs both of our application and of Mr. Meakin's application against us, and we do ask for summary assessment of those costs. I do not know whether you have seen a copy ---- MR. JUSTICE ARNOLD: No, I have not. Let us deal with the principle first. MS. LANE: Yes. MR. JUSTICE ARNOLD: Mr. Meakin, two points arise. First of all, directions for the remainder of the action. Do you have anything to say about the timetable for directions? MR. MEAKIN: Yes, my Lord. The timetable is probably realistic for a large London firm of solicitors but completely unrealistic for a litigant in person. It really does need to be thought about quite carefully because otherwise we will back in court to argue it again, which is undesirable. I mean, for example, a four week disclosure period. I have probably go about 3,000 -- and I know you were talking about it being a conspiracy theory, but I have got about 3,000 or 4,000 relevant documents... indexing and filing. Some of them have been already but, on the whole, we are probably talking more like three or four months to prepare the disclosure. MR. JUSTICE ARNOLD: Well, I will give you eight weeks for disclosure. All right? And if you need an extension, then you have to apply for it. MR. MEAKIN: Yes, my Lord. May I make some submissions about costs? MR. JUSTICE ARNOLD: Certainly. MR. MEAKIN: Obviously the concept of right to a fair trial stands above most -- always stands above other matters, the right to a fair trial. If the defendants were, however, to be awarded their costs, that would be an impediment to justice. It would actually defeat justice entirely, simply if they then turn to an unless order or similar tactics to dispose of the proceedings entirely. So I do think that their costs should be reserved or they should be -- or other steps should be taken to ensure that justice is done, and either way before we turn to the question of costs. Because I have actually incurred major costs myself in these proceedings and the proceedings are not yet over, and I feel that there is still a reasonable prospect of success in the remaining claims if settlement is not reached, my Lord. MR. JUSTICE ARNOLD: All right. Anything else on the principle of costs before we get into amounts? MR. MEAKIN: The main point, because... proceedings was about a right to a fair trial, then how an adverse costs order at this stage would not be taking account of the further costs that I am going to incur in bringing my claim, which I am fully entitled to do, my Lord. MR. JUSTICE ARNOLD: All right. I take it, Mr. Norris, you are asking for your costs as well? MR. NORRIS: My Lord, yes. I am now asked by the defendants for an order for costs of all three applications in their favour. Mr. Meakin resists an order for costs and says that costs should be reserved. He points out that the remainder of the case that has not been disposed of today will be proceeding to trial, and he submits that, if there is an adverse costs order against him now at this stage, that will prejudice his ability to take the remainder of his claims to trial. So far as that is concerned, I cannot see that that provides any justification for departing from the normal order in these circumstances, which is that costs should follow the event. The defendants' applications have been successful and Mr. Meakin's application has failed. In those circumstances the normal order is that Mr. Meakin should pay the costs of the applications, and that is my order. So you have some schedules? MS. LANE: I do. I do not know whether you have got copies of them, but I have got some further copies here. MR. JUSTICE ARNOLD: No. MS. LANE: They have been served on Mr. Meakin. (Same handed). MR. JUSTICE ARNOLD: Thank you.83. My Lord, there would of course be a sort of fall-back option which is that if you were not minded to make a summary assessment that I could ask for an interim payment. Alternatively, you could send the costs off to be assessed, but I would ask for an interim payment. MR. JUSTICE ARNOLD: Mr. Norris? MR. NORRIS: My Lord, the BBC does not have a schedule of costs but it is seeking a payment on account while the matter proceeds to assessment. MR. JUSTICE ARNOLD: Right. MR. NORRIS: I have the numbers, on the application, incurred by the BBC. I have also got my numbers of the costs, neither of which include the costs of this hearing itself. The BBC's costs of the application are £52,049, and counsel's costs are £9,750, both of which exclude VAT and, as I say, excluding the costs of this hearing. I would ask for a half to two thirds of that on account. In particular the BBC ---- MR. JUSTICE ARNOLD: I am sorry, 52,000? MR. NORRIS: £52,049. MR. JUSTICE ARNOLD: And your costs? MR. NORRIS: Counsel's were £9,750. Those, as I say, exclude the costs of the hearing. Regretfully my solicitor is away on a course... prepare the schedules. But in the circumstances, my Lord, that is the best that we have. What we ask for is a payment on account. Your Lordship needs to be certain that we will recover those sums on account. MR. JUSTICE ARNOLD: Well, quite. MR. NORRIS: And, in my submission, the costs incurred by the BBC are at a very low rate. The rate is £158 an hour, which, compared against any other London solicitor, is very cheap. I gather it correlates to Band C of the current guidance. And therefore these are realistic in the circumstances. In order to be sure that the sums paid on account would be at least beaten on assessment, I would ask for a half of those figures to be awarded. MR. JUSTICE ARNOLD: All right. Mr. Meakin?84. Then of course there is the consideration that this is down to trial as well on issues that they have yet proven in their favour, and the award of damages could outweigh any costs they are asking for at the moment, to offset could actually have consequences which render their requests for costs now an injustice.85. The third point is that the claim for copyright, it has been struck out. Obviously it is an area of developing law and my legal advisers, who are not here today because I cannot afford to have legal advisers follow me around every day, but my legal advisers have advised me to ask for permission to appeal ---- MR. JUSTICE ARNOLD: Well, I will come back to that later. At the moment I am just dealing with costs. MR. MEAKIN: On the costs issue, we have got evidence, firm evidence, that the parties have not complied with their obligations under 4.3, and therefore we would make -- I believe further representations would be made from my quarter if such orders were made, my Lord. MR. JUSTICE ARNOLD: All right. MR. MEAKIN: That is it. Thank you.86. I am now asked, in the case of the second and third defendants, for a summary assessment of costs. I think a summary assessment is appropriate, given the nature of the applications. I have been presented with two schedules. One is a schedule in respect of the second and third defendants' own application, and one in respect of the claimant's application. The former comes to a total of £76,191.00, and the latter to a total of £28,998.50. Counsel accepts that the amounts claimed are rather high, but explains that they are high in large measure due to the way in which Mr. Meakin has conducted the litigation, which has resulted in costs being increased. I think there is some force in that. On the other hand, I have to bear in mind that the fact that a defendant takes steps to defend itself does not necessarily mean that the entire costs should be visited upon the claimant. Looking at the schedules, I notice that the rates claimed are, at least in some cases, in excess of the guideline rates. I also notice that the second and third defendants have employed five fee earners on the case, not including the law costs draftsman. The point is made by counsel that the partner in charge has delegated a lot of the work to Grade C solicitors, and I accept that, but, even so, I think there must be some degree of duplication here. Moreover, I am concerned at the prospect that there has been some duplication between the solicitors and counsel, particularly in view of the large number of hours spent on the documents. I do accept that, owing to the nature of Mr. Meakin's documentation, a certain amount of time was required but, even so, I think a degree of caution must be applied.87. Bearing in mind the usual point that summary assessment is inevitably a rather rough and ready exercise, I will summarily assess the second and third defendants' costs in respect of both applications in a grand total of £65,000.88. I turn then to the first and fourth defendants' costs. So far as that is concerned, counsel for those defendants does not have a schedule. He asks for an interim payment. He tells me on instructions that his instructing solicitors' costs are just over £52,000 and his own are £9,750, in both cases excluding the actual costs of the hearing. In view of the paucity of information with which he is able to provide me, he asks simply for one half of those sums by way of an interim payment. Again, that is in respect of both the first and fourth defendants' own application and, to the extent that it touched on those defendants, Mr. Meakin's application. In the circumstances, I think an interim payment of roughly the figure asked for is justified, and I will make an order for an interim payment in the sum of £31,000. MS. LANE: It would normally be payable within 14 days, so that is what we would ask for. MR. JUSTICE ARNOLD: Mr. Meakin, how long would you ask for to pay the costs? MR. MEAKIN: The funding arrangements are dynamic and it is not clear exactly how the funding will cover these costs today at the moment. That would actually, as I said, be an impediment to justice. It may be that funding will not be in place, so obviously if the funding could not be found, then this would be a matter to go back to the parts of the claim that -- I mean, for example, the BBC's evidence about the database evidence was only disclosed, okay, in the last year or thereabouts, or in fact this year, I think. And bearing in mind this dispute has been going on six years, why was not this evidence, you know, disclosed under CPR 4.3 at the start? Obviously they have incurred a lot of costs and it has got to summary judgment only because they did not follow the guidelines laid down by the CPR. So I actually think any costs -- any adverse costs order at the moment in their favour ----89. Mr. Meakin, in resisting the costs applications of the defendants, says that they failed to comply with their pre-action obligations. I do not accept that that is a sufficient reason for depriving them of the costs to which they are otherwise entitled in the circumstances of this case.90. Now, Mr. Meakin, the issue at this stage is how much time. Ordinarily it is 14 days. I am assuming that you are asking for longer but, if so, how much longer? MR. MEAKIN: I think if you could make it 30 days, then that would give me enough time to look into the necessary funding options that are available to me. MR. JUSTICE ARNOLD: Any objection to 30 days? No. Very good. I will give you 30 days. MR. MEAKIN: 30 days. Very well. Thank you. MR. JUSTICE ARNOLD: Now, you said earlier you wanted permission to appeal. Is there anything particular that you would like to say on that subject? MR. MEAKIN: Would you like to know the grounds? MR. JUSTICE ARNOLD: Yes. MR. MEAKIN: The grounds are, first of all, the evidence surrounding the judgment on copyright I believe is inextricably linked to the evidence which relates to the breach of confidence and it has not been tested -- all of the evidence has not been tested to a trial standard yet. The area of television formats and copyright is also, as my documents show, an area of developing law and the European Court has -- my Lord, there are European judgments that have upheld copyright, the only question being the level of detail in the formats. For example, in the Dutch case that we looked at, that was concerned with the level of detail in the format. This, you know, the entire format, it is actually a bit more straightforward, being the web site. But I think from my advisers' point of view, the people I have spoken to, they all supported the opinion that a claim for copyright was not necessarily bound to fail; it was not necessarily bound to succeed either; it was very borderline. MR. JUSTICE ARNOLD: Yes. MR. MEAKIN: So, my Lord, do you grant permission to appeal on those grounds? MR. JUSTICE ARNOLD: No, I am afraid not. You will have to ask the Court of Appeal. MR. MEAKIN: Okay. Thank you, my Lord. MR. JUSTICE ARNOLD: Just hold on a minute. I am filling in the form. (After a pause): Right. Anything else? MS. LANE: My Lord, just on logistics, I have agreed with my learned friend that I will draw up the draft order. I am not sure whether you want that to be circulated amongst all the parties before it is sent to you, because obviously there may be difficulties because Mr. Meakin is acting in person. MR. JUSTICE ARNOLD: Yes. MS. LANE: Or whether I should just draw it up and submit. MR. JUSTICE ARNOLD: No, you agree it with Mr. Norris and then send it to me for approval. MS. LANE: I am grateful, my Lord. MR. JUSTICE ARNOLD: Anything else? Anything else from you, Mr. Meakin? MR. MEAKIN: Not that I can think of at this time. Thank you very much, my Lord. ________

Cited in 5 later judgments