Phonographic Performance Ltd v CGK Trading Ltd & Ors [2016] EWHC 2642 (Ch)

Case No HC-2015-002607Case No HC-2015-002756[2016] EWHC 2642 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 25/10/2016
Before
MASTER CLARK
Between
PHONOGRAPHIC PERFORMANCE LIMITEDClaimantCGK TRADING LIMITEDDefendantsCLIVE KANGDefendantKERRY ORMES TRADING AS MIYA NIGHTCLUBDefendantPERFORMING RIGHTS SOCIETY LIMITEDClaimantCGK TRADING LIMITEDDefendantsCLIVE KANGDefendantKERRY ORMES TRADING AS MIYA NIGHTCLUBDefendant
Amanda Michaels (instructed by Hamlins LLP) for ClaimantsChristian Panayi (Direct Public Access) for Third DefendantHearing Hearing dates: 28, 29 September 2016
JudgmentMaster Clark:
[1]This is my judgment in the trial of two claims (heard together) against Kerry Ormes, the third defendant to both claims. Both claims are for infringement of copyright arising out of the unlicensed playing of sound recordings at a nightclub in Essex, currently called Miya Nightclub, which is at 20 Barrack Square, Chelmsford, CM2 0UU (“the Club”).[2]The claimant in each claim is a well-known copyright collection society. The claimant in the claim ending “2607”, PPL, owns that part of the copyright in sound recordings which, broadly speaking, consists of the right to play those sound recordings in public or authorise others to do so. Its repertoire consists of over 10 million recordings.[3]The claimant in the ending “2756”, PRS, owns that part of the copyright in the words and music of songs which again, broadly speaking, consists of the right to play those songs in public or authorise others to do so. Its repertoire also consists of over 10 million songs.[4]When a sound recording of a song is played in public therefore, for instance, at a nightclub, the copyrights belonging to both claimants are infringed unless a licence has been obtained.[5]The Club is a well-known, luxurious and prominent nightclub in Chelmsford. A nightclub has operated at the Club for some years and with an apparent succession of proprietors. Since 2009, either no PRS licence has been obtained, or where PRS has granted licences, the licence fees have not been paid. Similarly, since 2010, PPL has sought unsuccessfully to license the playing of sound recordings within its repertoire at the Club. It has issued proceedings against the series of companies and people appearing to be running the nightclub. No PPL licence has ever been taken out, nor any licence fees paid.[6]Turning to the defendants in the claims, they were sued as being jointly and severally liable for infringements of copyright at the Club:(1) The first defendant (“D1”) is the company which ran the Club and was the Premises Licence Holder (“PLH”) of the Club under the Licensing Act 2003 (“the 2003 Act”) from February 2014 to 11 August 2015;(2) The second defendant (“D2”) was the sole shareholder of D1 and its most recent sole “formal” director, though he claimed to have resigned on 5 May 2015;(3) The third defendant (“Ms Ormes”) has been the Designated Premises Supervisor (“DPS”) of the Club since November 2014, and the claimants allege that she is the manager of the Club.[7]The claimants obtained evidence of infringement on 23 May 2015. This consisted of the report of an enquiry agent, Steven May, who attended the Club and heard the relevant music being played. The claims were issued on 26 June 2015 (PPL) and 3 July 2015 (PRS).[8]D1 did not respond to the proceedings and judgment in default was ordered against it on 2 December 2015. Following service of the proceedings, D1 ceased to be the PLH; and on 31 May 2016 it was struck off the Register for failure to file an Annual Return and/or Accounts.[9]D2 filed Defences in both claims, each dated 1 August 2015, but did not respond to the claimants’ application for summary judgment against him; and this was granted on 2 December 2015.[10]Ms Ormes also filed Defences in both claims on 1 August 2015. These were identical in part to D2’s Defences and indeed to the Defences in previous proceedings brought by PPL against previous proprietors of the Club. In her Defences Ms Ormes admitted that she was at all material times the DPS of the Club, but asserted that she was an independent contractor whose duties at the Club were limited to responsibilities relating to the sale and/or supply of alcohol.[11]The claimants also applied for summary judgment against Ms Ormes. She responded to that application for summary judgment by serving a witness statement dated 1 December 2015 (1 day before the hearing), as a result of which the application was adjourned, and ultimately not pursued by the claimants.[12]Ms Ormes’ case is now found in her Amended Defences dated 1 March 2016, which completely replace her Defences. In them, Ms Ormes(1) admits that she was the DPS at all relevant times (para 6);(2) asserts that she was an employee whose responsibilities were limited to the sale of alcoholic drinks, ensuring good order in the Club, that the volume of music played was maintained within agreed limits and that the music was turned off at the time required by the local authority (para 10).(3) asserts that she had neither knowledge of nor responsibility for nor control of the procurement, selection, playing, licensing or otherwise of copyright works as part of her employment (para 9);(4) denies that she was a person in charge of the day to day running of the premises, except as set out above (para 3).[13]Ms Ormes’ case is also set out in her replies dated 2 February 2016 to the claimants’ request for further information. She identifies D2 as responsible for running the business of the Club until 3 July 2015, after which (she asserts) a William Davidson has been responsible. Mr Davidson is a director of MIYA Club Limited, (“MCL”), which has since July 2015 been the operator of the Club and the PLH since 11 August 2015.[14]Although Ms Ormes’ position as to subsistence, ownership and infringement of the relevant copyrights was not entirely clear in her Defences nor in her counsel’s skeleton argument, at the start of the trial her counsel conceded that the infringements alleged by the claimants (“the infringing acts”) had occurred, but denied that Ms Ormes was liable to the claimants in respect of them.

Legal framework

[15]The relevant provisions of the Copyright, Designs and Patents Act 1988 (“the CDPA 1988”) are: s 16.— The acts restricted by copyright in a work.(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom— … (c) to perform, show or play the work in public (see section 19); … and those acts are referred to in this Part as the “acts restricted by the copyright”.(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright. 19.— Infringement by performance, showing or playing of work in public. (1) The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work. (2) In this Part “performance”, in relation to a work— … (b) in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work.(3) The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast. 25.— Secondary infringement: permitting use of premises for infringing performance. (1) Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright. (2) In this section “place of public entertainment” includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment.[16]Sections 16 and 19 of the CDPA 1988 thus create a distinct tort of authorising infringement of copyright, by authorising the performance, showing or playing of the copyright work in public. In addition, however, a person may be liable under common law principles of joint tortfeasance by procuring an infringing act, though in the factual circumstances of this case, there is an overlap between the two grounds of liability. Similarly, there is a substantial overlap between these liabilities and the liability under section 25(1) for giving permission for a place of public entertainment to be used for a performance.[17]Guidance as to the meaning of “authorise” is found in Copinger and Skone James on Copyright 17th edn (2016), and in particular paras 7-248 and 7-249:
“7-248 Meaning of “authorise”
Authorisation means the grant or purported grant, which may be express or implied, of the right to do the act complained of, whether the intention is that the grantee should do the act on his own account, or only on account of the grantor. … Thus, in general, an authorisation: ‘…can only come from someone having or purporting to have authority, and an act is not authorised by someone who merely enables or possibly assists or even encourages another to do that act, but does not purport to have any authority which he can grant to justify the doing of the act.’ (Per Whitford J. in CBS Inc v Ames Records & Tapes Ltd [1982] Ch. 91 at 106; [1981] R.P.C. 407; approved in Amstrad Consumer Electronics Plc v British Phonographic Industry Ltd [1986] F.S.R. 159 at 211, CA and in C.B.S. Songs Ltd v Amstrad Plc [1988] A.C. 1013 at 1055; [1988] R.P.C. 567, HL.) Thus, in general, an authorisation: 18. Clearly a person will have authorised an act if he formally grants the right to do the act in contemplation that it will in fact be done, or simply gives permission for it to be done. Likewise, a person who asks another to do an act, the former having the power to give or refuse permission to do that act, will usually be taken to have authorised it … 19. 7-249 Examples of “authorisation” 20. … 21. The facts of each case need to be looked at to see whether, for example, the performers looked to the person engaging them to give them the necessary permission to perform the material; or whether this was regarded as the performers’ responsibility; or whether, for example, this was a matter to which no thought was given by either party. It is suggested that it is only in the first of these cases that there can have been authorisation. Simply approving a list of works to be performed can hardly amount to authorisation, since it does not reveal enough about what the assumptions were.”

Thus, in general, an authorisation:

[18]In Twentieth Century Fox Film Corp v Newzbin Ltd [2010] FSR 21, Kitchin J said:
“‘authorise’ means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances.”
[19]In Newzbin the defendant operated an internet based service which enabled its members to identify films which had been uploaded onto Usenet, and to download them. The Judge found that a reasonable member would deduce from the defendant’s activities that it purported to possess the authority to grant any required permission to copy any film that a member might choose from its indices; and therefore that it had sanctioned, approved and countenanced the copying of the claimants’ films, including each of the films specifically relied upon in the proceedings. It is to be noted that the defendant in Newzbin had no knowledge of and did not authorise or approve the copying of any specific film. Its liability was based on the blanket authorisation conferred on its members to download films of their choice.

Issues to be decided

[20]In the legal framework set out above, the primary issues in this claim are:(1) whether Ms Ormes had authority to authorise the infringing acts: (i) Ms Ormes’ role at the Club; and whether she was its manager; (ii) if so, whether as manager her authority extended to authorising infringing acts;(2) whether she in fact exercised that authority. Witnesses Claimants’ witnesses[21]The claimant called the following witnesses:(1) Marion Horwood – the Litigation Manager in the Legal and Business Affairs Team of PRS;(2) Richard Stewart – Head of Dubbing and Tariff Development at PPL;(3) David Roberts – a security consultant who spoke to a promoter user of the Club about Ms Ormes’ role there;(4) Steven May – the private investigator who attended the Club on 23 May 2015 and obtained evidence of the infringing acts;(5) Brian Lodge – a private investigator who carried out an investigation into Ms Ormes’ role at the Club on behalf of the claimants. All of these witnesses were honest witnesses whose factual evidence I accept. However, as will be seen, issues arise as to the inferences to be drawn from that evidence and these are considered below.[22]In addition, the evidence of Linda Johnson (who prepared a report recording the information obtained by Mr May in his visit to the Club) was unchallenged by Ms Ormes. Finally, the claimants served (late) a hearsay notice in respect of the witness statement of Christopher Dewse, a private investigator who spoke to Ms Ormes about her role at the Club. I allowed the claimants to rely on this statement, though in the absence of cross examination of Mr Dewse, it is of lesser evidential weight than that of the other witnesses. Ms Ormes’

Witnesses

[23]Ms Ormes gave evidence on her own behalf, and called William Davidson. Ms Ormes[24]I have serious reservations about Ms Ormes’ reliability as a witness. Her evidence was both incomplete and inconsistent (both internally and with the other evidence). I take into account her evidence that her original Defences were prepared without reference to her, and simply given to her for her signature by D2, without any explanation of the significance of the statement of truth contained in them (and apparently without providing her with copies of the Particulars of Claim). However, she was represented by a firm of solicitors, Nicholls Law, from at the latest 1 December 2015 to 17 August 2016 (counsel at the trial was instructed on direct access); and all of her witness statements were drafted by that firm.[25]By way of example, in her first witness statement dated 1 December 2015 she refers to promptly answering the claimants’ solicitors’ letter dated 23 September 2015 (sent to the Club’s address); whilst in her oral evidence she asserted that documents sent to the Club (including that letter) had not reached her. In her 2nd witness statement (at para 16) she stated that she had no recollection of a conversation with Christopher Dewse; whereas in her 3rd witness statement dated 14 September 2016 she said she vaguely recalled it. Her oral evidence that by this she meant that she had referred to it in her 2nd witness statement was not in my view credible.[26]On the key issue of the number of hours per week that she worked in the Club, her evidence (in para 6 of her 2nd witness statement dated 17 December 2015) was that she worked only 5½ hours a week. This was inconsistent with the (limited number of) payslips disclosed by her, so that she had to accept in cross examination that she worked significantly greater hours (15 to 20) per week. She then sought to expand her evidence to explain these hours by reference to a breadth of activities such as attending licensing committees and meetings with the landlord. This evidence was inconsistent with Mr Davidson’s evidence that the additional time was spent carrying out menial tasks, such as cleaning, at the Club. Again, I do not consider her evidence on this issue credible.

William Davidson

[27]Mr Davidson made two (effectively identical) short statements. He accepted in cross examination that when he was a director of a previous proprietor of the Club, Candy Maan Limited, he knew that the premises needed licences from the claimants, but did not apply for them. His evidence was that Nicholls Law was also MCL’s solicitor, but he sought to withdraw that when shown his email dated 3 February 2016 stating that Nicholls Law was not instructed on behalf of MCL. He nonetheless confirmed that he was funding Ms Ormes’ defence of the claim.[28]His evidence as to what steps had been taken to search for and provide relevant documents (considered further below) was not convincing and inconsistent with that of Ms Ormes. He also accepted that MCL’s application (completed and signed by him) to PPL for a licence was not accurate as to attendance for the relevant period. A curious feature of this case is that although the company operating the Club has changed from D1 to MCL, Ms Ormes’ employer, as shown on her payslips, has remained the same, Pubscope Limited. Mr Davidson said that this was a payroll company, even though he accepted that it is a dormant company (as shown on a Companies House search). I do not find his evidence as to this credible.[29]I therefore also have reservations about the reliability of Mr Davidson’s evidence.

Ms Ormes’ role at the Club

[30]Ms Ormes began working at the Club in November 2014, having previously worked at another venue as DPS for 7 or 8 months. She relies upon written “Terms and Conditions of Employment” (“the T&Cs”) with D1 (signed by both parties). These provide that her job title is Designated Premises Supervisor, her rate of pay is £10 per hour and that she has no normal (or minimum) working hours. They include the following provision:
“Your duties are those which the Company may from time to time consider as falling within the general ambit of the title of your appointment as Designated Premises Supervisor and which are described in more detail in the annex to this document.”
[31]The Schedule to the T&Cs lists “Specific Duties” under 4 headings:(1) Ensuring compliance with the four licensing objectives of the 2003 Act (none of which refer to music);(2) Safety and security duties;(3) Duties in relation to bars and alcohol;(4) Music:
“Ensure that the volume of music is lowered half an hour before closing and switched off before the closing time prescribed by the licence assuming the premises are not closed earlier.”
[32]The claimants accept that if the T&Cs accurately reflect Ms Ormes’ duties, then she is not liable for authorising infringement. However, their case is that her duties were far more extensive, and that she was the manager of the Club, whose role included booking acts to perform at the Club.[33]The starting point of the claimants’ case is that Ms Ormes was the DPS at all material times. There is no express definition in the 2003 Act of the role of the DPS. However, the claimants rely upon a Home Office Fact Sheet entitled “The Role of the Designated Premises Supervisor” which suggests:
“The DPS is the key person who will usually be charged with the day to day management of the premises by the premises licence holder.”
[34]Similarly, the Home Office’s Revised Guidance (issued under section 182 of the 2003 Act) dated March 2015 states that the DPS “will normally be the person who has been given day to day responsibility for running the premises by the premises licence holder”[35]The claimants also rely on the fact that the obligations upon a DPS include responsibility for regulated entertainment (as defined in the 2003 Act) which includes the public performance of live music or the playing of sound recordings in premises made available for that activity. However, the claimants did not argue that the DPS’s obligations include ensuring that the public performance of music at the premises is licensed by the claimants. They also did not argue that being present in a supervisory capacity at the premises, and knowing that music is being publicly performed, constituted authorising or procuring that performance. In my judgment neither being a DPS nor carrying out the functions of a DPS is of itself sufficient to give rise to a liability for authorising or procuring infringement.[36]I accept that the supervisory and other functions carried out by a DPS could be carried out by someone who had responsibility for the day to day running of the premises, without being responsible for arranging the persons who were to perform at the premises (in the way that the T&Cs on their face provide). The question is whether as a matter of fact that occurred in this case. I also accept Ms Horwood’s evidence that more often than not the DPS is also the manager of the premises; and Mr Stewart’s evidence that to meet the licensing objectives the DPS would need to have control of both directing and recruiting staff i.e. would fulfil a management role. If Ms Ormes is not a manager, then that would be, as Mr Stewart put it, an unusual position.

Ms Ormes as manager

[37]The claimants adduced a range of evidence as showing that Ms Ormes is the manager of the Club.

Description of herself as manager

[38]Mr Dewse’s evidence is that when asked what her role was, Ms Ormes told him she was the manager. As mentioned, Ms Ormes’ evidence is that she has no recollection of this conversation, and therefore, although Mr Dewse was not cross examined, I accept his evidence on this point. Ms Ormes sought to explain why she might have referred to herself in this way, by saying that the description is true in a limited sense, and much easier than explaining that she is a DPS and what that entails. This is not inherently implausible, but in the light of the view I have taken of Ms Ormes’ credibility and the other evidence, I do not accept it.

Description by others as manager or management

[39]On 16 April 2016, Mr Roberts telephoned a promoter, “Black Steel Promotions”, who regularly performs at the Club, purporting to be a journalist writing an article on nightclubs in Essex. He asked “Black Steel” who was managing the Club, and was told that the manager was Ms Ormes.[40]Similarly, the claimants rely on two internet postings by Black Steel Promotions. The first refers to an event on 25 September 2015 and includes thanks to “Kerry who runs the venue”. The second posting refers to an event on 27 November 2015 and includes:
“Once again a BIG thank you for all your support from the management kerry ormes, Geoff & Manos and the team @ “Black Steel Promotions” look forward to seeing you at the next “2 Damn Hot”
Party Soon.”[41]Ms Ormes’ evidence is that Manos is an IT/Web designer whose services are used by the Club, and “Geoff” refers to Geoff Livesey who is the landlord of the Club. She seeks to explain the reference to her as reflecting the fact that she is the person with whom Black Steel liaises in relation to difficulties with their guests, security or safety and noise control. But it remains the case that of the three individuals referred to in the posting, only Ms Ormes has any sort of management role. In my judgment the term “management” is capable of indicating wider responsibilities than those identified by Ms Ormes, and whether it does is to be considered in the context of the totality of the evidence.

Managerial role in dealing with booking of the Club – Mr Lodge

[42]Mr Lodge is a private investigator who posed as a potential customer of the Club, seeking to book it for a 21st birthday party for his (fictitious) daughter. On 7 April 2016 he phoned the Club’s mobile number (07572 812532 – “the Club’s mobile”) and left a message for Ms Ormes, saying he would like to discuss with her arranging a party for his daughter. This was followed by various missed calls and texts. Eventually on 15 April 2016 Mr Lodge spoke on the Club’s mobile to Ms Ormes to arrange a visit to the Club to discuss the arrangements and for Mr Lodge to look at the venue. He visited the Club on 22 April 2016 and was told that Ms Ormes was not there but that “another boss”, introduced as Manos, could show him round. In fact, he was shown round by the receptionist, named Bridie, before returning to the reception area where he discussed the arrangements with Bridie and Manos. At the end of the discussion, Manos confirmed to him that he should finalise the arrangements with Ms Ormes as she was the one who handled the bookings.[43]The following day Mr Lodge texted Ms Ormes to ask her for an email address to which he could send a list of the music his daughter would like; and she replied with the Club’s email address, info@miyanightclub.com.[44]Finally, on 28 April 2016, Mr Lodge had a telephone conversation with Ms Ormes to discuss the details of the party. He told her he would email a list of music tracks and asked whether she could arrange for the DJ to play those on the night. She confirmed that she could; and that she would get the DJ to get in touch with Mr Lodge’s daughter directly via social media and that the DJ would “just tailor it all to what she wants”.[45]Ms Ormes did not dispute Mr Lodge’s evidence. Her evidence was that she would pass any list of music to be played to Mr Davidson, and he would pass it to the DJ. She denied that passing lists of music to DJs was her job, or that booking DJs was her job. I do not accept that evidence. I find that Ms Ormes’ role included booking DJs to appear at the Club, and passing lists of music to be played to them.

Use of the Club’s mobile

[46]The claimants also rely on Ms Ormes’ use of the Club’s mobile. This is the number used by Mr Lodge to contact Ms Ormes, and his calls to it were never answered by anyone else. It is the number shown on all the advertisements for the Club in the evidence before me, for events occurring there, for party bookings and for staff recruitment. These include an advertisement on 22 October 2015 on the Twitter account of “White Ice” stating:
“Are you a #Mixologist? Do you want to be on TV? If you can be in #Chelmsford Sunday daytime call Kerry now 07572 812532”
Do you want to be on TV? If you can be in #Chelmsford Sunday daytime call Kerry now 07572 812532”

Do you want to be on TV?

[47]Ms Ormes’ evidence in relation to this advertisement was not straightforward. She agreed that a mixologist was someone who mixed drinks at a bar. She disputed that the advertisement was for staff, on the ground that it was an invitation to appear in the TV series TOWIE, and appearances on that show were not paid. She denied any knowledge of who had put her name in the advertisement or why they had done so; and denied that someone calling the number would have been answered by her. She even denied knowing whether hiring staff was a managerial task, on the basis that she was, she said, not hiring them. Her evidence was inconsistent with that of Mr Davidson, which was that he had booked TOWIE to come to the Club, his wife was in hospital, so he asked Ms Ormes to take the calls and refer them to him. I did not find Ms Ormes’ evidence on this issue credible.[48]Ms Ormes also complained in her evidence about Mr Dewse contacting her on her personal mobile to discuss matters related to the Club, from which it is to be inferred that she would have preferred and expected him to call her on the Club mobile.[49]Ms Ormes’ evidence in her 3rd witness statement is that she had the Club’s mobile for a short period in the course of April 2015 and early May 2015. During this period, she said, she was in hospital with a series of kidney infections; and, in order to have something to do, was asked by Mr Davidson to act as a secretary, take messages and help to arrange party bookings. This, she said, was the capacity in which she spoke to Mr Lodge. The reference to “2015” in her witness statement must therefore be an error, since she spoke to Mr Lodge in April 2016. No hospital records were disclosed by her, though her evidence was that she had provided them to Nicholls Law. She also did not disclose her pay slip for this period, which would have shown the number of hours she worked. In fact, as Mr Lodge’s evidence shows, her role went far beyond what the limited one she claimed.[50]Mr Davidson accepted that Ms Ormes uses the Club mobile, and that she phones him from it on a regular basis. I find that Ms Ormes is the principal user of the Club’s mobile, and that she uses it in relation to the day to day running of the Club. Documentary evidence disclosed by

Ms Ormes

[51]Ms Ormes’ disclosure list dated 16 June 2016 sets out that she has carried out a search for electronic documents on or created by the Club’s mobile and email account. Yet, remarkably, there is not a single document from those sources listed.[52]Ms Ormes’ evidence was that she had no right to access these documents, but that Mr Davidson had allowed her access to the Club’s email account by logging her on, so that she could look for relevant emails. This was inconsistent with Mr Davidson’s evidence, which was that he simply gave Ms Ormes relevant documents and emails, though he said he could not remember what the documents were. She accepted that emails and texts relating to the running of the Club and booking of acts to appear at it existed; but could give no real explanation of why they had not been disclosed, stating broadly that she had provided the documents to her solicitor.[53]There are therefore no texts or emails in the evidence before me which show Ms Ormes’ role in the Club, or which support her case that the booking of DJs was not carried out by her, but was carried out by someone else and after July 2015, by Mr Davidson. Discussion and conclusion Ms Ormes’ responsibilities and authority

Discussion and conclusion

[54]In my judgment the claimants’ evidence shows on the balance of probabilities that Ms Ormes was carrying out a managerial role at the Club, and that her responsibilities extended to authorising and procuring the performance of music at the Club. The T&Cs do not therefore accurately record her responsibilities.[55]I do not accept Ms Ormes’ and Mr Davidson’s evidence that her responsibilities were more limited. First, for the reasons given above, I do not consider either of them to be reliable witnesses. Secondly, if as Ms Ormes contends, D2 and Mr Davidson were responsible for procuring the performance of music at the Club, one would expect there to be evidence in support of this other than Ms Ormes’ and Mr Davidson’s testimony. Not only has Ms Ormes not produced any documentary evidence to show who carried out the booking of DJs to appear at the Club, but there is no evidence in any of the other documents in evidence of any involvement of D2 or Mr Davidson in the management of the Club.[56]The claimants’ counsel submitted that there had been a deliberate failure on the part of Ms Ormes to give proper disclosure. She referred me to correspondence from the claimants’ solicitors to Ms Ormes’ solicitors and Ms Ormes herself, seeking disclosure of emails and mobile phone records for the Club’s mobile. She invited me to infer that these documents had not been disclosed, because they showed that Ms Ormes was carrying out the tasks which render her liable in this claim. She referred me to the first instance decision of Mann J in Gulati v MGN [2016] EWHC 1482 (Ch) at para 85, where the Judge considers the drawing of inferences where evidence has been lost or destroyed by one party. The difficulty with this submission is that the claimants, having identified deficiencies in Ms Ormes’ disclosure, did not apply for specific disclosure, or indeed for non-party disclosure against MCL or Mr Davidson. In the absence of an application, I cannot in my judgment infer that relevant documents have been lost or destroyed by Ms Ormes.[57]In my judgment the evidence adduced by the claimants shows that Ms Ormes acted as the manager of the Club, and that managerial responsibilities would generally include the booking of DJs and promoters to appear at it. Ms Ormes’ defence that she did not in fact have those responsibilities, and did not carry out those acts is unsupported by any documentary evidence showing that D2 or Mr Davidson, as the case may be, carried out the relevant acts. To this must be added that Ms Ormes also did not call any other employees at the Club, who also could have given evidence to support her case. Standing back, the overall impression from the evidence as whole is that Ms Ormes is the only person who could have been the manager (with the responsibilities contended for by the claimants) of the Club; or, as Mr Stewart put it, if Ms Ormes is not the manager, then the Club does not have a manager.

Authorisation by Ms Ormes

[58]Ms Ormes’ counsel submitted however, that even if she had the authority to authorise or procure the infringing acts, that was not sufficient: the claimants must show, he said, the exercise of specific authority. He referred me to PRS v Ciryl Theatrical Syndicates [1924] 1 K.B. 1 at 14 and 15 “Prima facie a managing director is not liable for tortious acts done by servants of the company unless he himself is privy to the acts, that is to say unless he ordered or procured the acts to be done. … If the directors themselves directed or procured the commission of the act they would be liable in whatever sense they did so, whether expressly or impliedly. In this case there is no suggestion that the appellant was privy to the commission of this wrongful act. He was away at the time. He had no idea what pieces were being performed. He gave no instructions or directions to the band to play the works in question. No one would think of holding a managing director responsible for all the wrongful acts committed by servants of the company in such circumstances.”[59]His primary submission (which I have rejected for the reasons set out above) was that Ms Ormes was not a manager, and did not engage performers to give performances. He also relied on the fact that Mr May did not see Ms Ormes at the Club – however, this is not sufficient to show that she was not present; she does not deny being present, and the relevant payslip suggests that she was working on that night. In any event, the relevant act is engaging the performers, which would have occurred in advance of the performance, so her presence on the night is irrelevant.[60]Ms Ormes’ counsel submitted that to succeed in showing authorisation or procuring the claimants must show that Ms Ormes had selected and authorised specific songs to be played, relying on the passage in Ciryl above. He submitted that the claimants had not shown that Ms Ormes had approved lists of songs to be played at the Club. I agree that the evidence shows that generally the DJs or performers (and not Ms Ormes) selected the music to be played. However, I do not accept the submission that Ms Ormes was not therefore authorising infringement. Just as the licences granted by the claimants are blanket licences permitting performance of any works within their repertoires at the licensed premises, the authorisation by the person booking a performer is to perform at the venue whatever music they select. The authorisation given in this case is analogous to that given by the defendant in Newzbin, where it had no knowledge of the specific films downloaded by its members. There is no suggestion in this case that the performers themselves had licences from the claimants, or that Ms Ormes informed them that they would need to obtain such licences.[61]Finally, Ms Ormes’ counsel submitted that if liable, she was only liable from the date when Mr Davidson first applied for a licence on MCL’s behalf, alternatively the date when Mr May attended the Club and obtained evidence of infringement. I reject these submissions. Ms Ormes’ liability is based upon acts carried out by her in her capacity as manager, and commences on the date on which her employment commenced, 18 November 2014.

Quantum

[62]Although I adjourned issues of quantum to be dealt with following my judgment on liability, the witnesses gave evidence as to the level of attendances at the Club, and I set out my findings on that issue.[63]The claimants have no direct knowledge of the attendances at the Club, and no disclosure has been given which shows those attendances. Mr Stewart has extensive experience of licensed premises, having run a chain of hotels and licensed clubs for 20 years before working for PPL. He has provided an estimate of attendances at the Club. This is based on its capacity of 620 – the average attendance has been taken at slightly less than 50% of capacity for two reasons. First, an attendance of less than that on a regular basis would mean there would be no atmosphere in the Club. Secondly, Mr Stewart’s view is that the Club would not have been financially viable with a lesser attendance, whereas it has kept going for a number of years. He has also considered screenshots from the Club’s website showing events at it.[64]Ms Ormes’ counsel submitted that I should not accept Mr Stewart’s evidence. First, he relied on the fact that Mr May recorded an attendance of only 40 on Saturday 23 May 2015. However, Mr May was at the Club from 11pm for an hour i.e. at the start of the evening; and the Club is open until 3.30am. I do not consider it likely that the attendance at that time was the maximum for the evening. Secondly, Ms Ormes relied on the evidence of Mr Roberts’ interview in April 2016 with “Black Steel”, in which he says that attendance is about 160/180. There is no reason to doubt this figure for the nights on which Black Steel performs.[65]Finally, Ms Ormes’ counsel relied upon the attendance figures in MCL’s application dated 3 February 2016 to PPL for a licence made by Mr Davidson on its behalf. As noted, Mr Davidson accepted that these figures were not accurate. No documentary records to support these figures were in evidence, and none have been supplied to PPL. Mr Davidson himself accepted that in the second half of 2015 the Club was often open on Thursday and Friday nights, and that the application form did not reflect that. The average attendance for Saturday nights is stated to be 73.41. This is less than stated for week day events, and I do not accept it is accurate. I accept Mr Stewart’s evidence that the likely attendance on Saturday nights is 300.[66]The form also states that background music is not played. Mr Stewart’s evidence was that nightclubs generally have a half hour period before the DJ comes on when background music is played, and I find that this is the practice at the Club.

Conclusion

[67]I find therefore for the reasons given above that Ms Ormes is liable to the claimants for authorising and procuring infringement of their copyrights from 18 November 2014 onwards.

Cited in 1 later judgment