Lilley v Euromoney Institutional Investor Plc & Anor

The claimant in these three cases, Mr Victor Lilley, is an author. In the 1990s he wrote articles for various publications. The publishers of those magazines paid him a fee between about £150 and £450 for each article. The articles were published in the relevant publications. After that copies of Mr Lilley’s articles appeared elsewhere. They appeared on the internet. Mr Lilley contends that the publication of his articles on the internet was unlicensed and therefore was an infringement of his copyright. He contends that the defendants are liable for that infringement and he claims damages.

In the three cases with which this judgment is concerned the defendant is the publisher of the relevant magazine. I will refer to the three sets of defendants respectively as Euromoney, CIMA and Aspermont. The number of articles in issue in the three cases varies from three articles each (Euromoney and Aspermont) to seven or perhaps thirteen articles (CIMA). In all three cases Mr Lilley’s Particulars of Claim are very long documents. They include spreadsheets in which he articulates his claim for damages. The quantum of damages claimed in the three cases are about £27 million (Aspermont), about £117 million (Euromoney) and about £450 million (CIMA).

There is also a further fourth action which is in substance the same as the other three. In that case Mr Lilley is suing DMG Events Limited for over £900 million in respect of thirty seven articles. That action began in the High Court but, contrary to Mr Lilley’s wishes, was transferred to the Intellectual Property Enterprise Court. It came before HHJ Hacon on 12^th March 2014. HHJ Hacon held that the only tenable basis on which a damages calculation could be carried out was a “group 3” calculation (see General Tire v Firestone [1975] 1 WLR 819) and that Mr Lilley had agreed before him that assessed on that group 3 basis the sum due would be £83. On that footing HHJ Hacon struck the action out on the basis of Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75, that it was “not worth the candle”. Mr Lilley has applied to set aside that judgment. The application includes allegations of treason, fraud and perverting the course of justice.

It is notable that the damages calculation in each case is advanced on the same basis. For each original article written by Mr Lilley the damages calculation takes the original price of the article and multiplies it up in various ways.

The first step is to calculate the number of infringing instances as far as Mr Lilley is concerned. This is arrived at by counting the number of months the articles appeared on each website for the relevant period. In every case this is a period starting some time in the 1990s and generally ending at a date in about 2006 or 2007. In the CIMA case the end date in some instances is alleged to be in 2011 or 2012. Each month is regarded as a separate instance as if a paper publication was published monthly. An article appearing on a website for twelve months is treated as appearing in twelve issues of the publication. The product is then multiplied by a number representing the number of countries in the world, subtracting a small number of countries. This approach is applied to each article and each website. It produces a number of instances in the millions. In the CIMA case the total number of instances is 4.8m.

Mr Lilley’s position is that each instance is a separate infringement and a separate event causing its own distinct damage. For each infringing instance Mr Lilley then charges a fee based on the original price with some reduction. The reduction factor in some cases takes the price per instance to about 80% of the original price. In the CIMA case this produces a figure of about £450m based on seven articles originally published in 1993-1998. The same essential calculation produces the figures I have set out above against Aspermont and Euromoney. Unlike the position found by HHJ Hacon in the DMG case, in the three cases before me Mr Lilley does not accept that even calculated on a General Tire “group 3” basis (which he does not accept is appropriate), his damages would be a sum equivalent to the £83 found in DMG.

In 2013 the Chancellor of the High Court directed that I should be nominated to hear the trial and all case management applications in the Euromoney case. In February 2014 the solicitors acting for all four of the defendants in all four cases wrote to the court and submitted that the claims were closely related and invited the court to manage them together. I directed that the outstanding applications in all four cases (including DMG) be heard today. They raised numerous issues in common and the best and most proportionate way of dealing with them would be to deal with them together. In the end it was not possible to deal with Mr Lilley’s application to set aside (rather than appeal) HHJ Hacon’s order in the DMG case.

Three days before the hearing, on Monday 30^th June, Sales J heard an application by Mr Lilley to set aside the direction directing the matter should come on today. That was refused. On the day before the hearing (2^nd July) Mr Lilley applied before Mr Justice Mann in the Chancery Applications Court that I should recuse myself from hearing these matters and that the matters should be adjourned. Mann J refused all three applications, that is to say the applications in the three cases: Euromoney, Aspermont and CIMA. He held they were totally without merit.

Before me this morning when the matters were called on at 10.30am Mr Lilley was not in the court. He was outside in the corridor. His position was that to go ahead with the Aspermont or CIMA cases was unfair and that he was not prepared to attend the court to participate in those cases. Since he understood that all three were going to be dealt with together he was not prepared to come into the courtroom.

Via the usher I invited Mr Lilley to come in before any of the matters were called on to discuss the matter with me. Mr Lilley came into court and we discussed how the matters would be proceeded with. Mr Lilley indicated that he wanted some more time to prepare for Euromoney and that he was determined not to attend the hearing in relation to Aspermont and CIMA. I directed that I would hear the Aspermont and CIMA applications first at 10.30am and would adjourn the Euromoney case until 12.15pm. I urged Mr Lilley to attend the hearing in relation to Aspermont and CIMA but he made it clear that he was not prepared to do so because he said it was unfair. He also renewed his application that I should recuse myself from dealing with these matters and that the Aspermont and CIMA matters should be adjourned.

I decided not to adjourn Aspermont and CIMA and to reject Mr Lilley’s application that I should recuse myself with reasons to be given in this judgment which will be done below. The next matter was to call on the applications in the CIMA and Aspermont cases. They took place without Mr Lilley being in court.

After dealing with the applications in Aspermont and CIMA, at 12.15pm the Euromoney application was called on and Mr Lilley returned to court.

For each matter, having heard submissions, I told the parties what orders would be made, with the reasons to be given later. This judgment deals with those reasons.

Everyone has a right to a fair hearing by an independent and impartial tribunal (Art 6 ECHR). An impartial judge is a fundamental prerequisite for a fair trial or fair hearing of an application and so a judge should not hesitate to recuse himself or herself if there are reasonable grounds on the part of a litigant for apprehending that the judge, for whatever reason, will not be impartial (Locabail v Bayfield [2000] QB 451 (CA)).

Mr Lilley set out his reasons on this aspect of the matter in a nine page document entitled “Why Birss J should be recused from these 3 cases”. It raises numerous points. In his address to me Mr Lilley confirmed that his submission was based on apparent bias rather than actual bias and I will consider it on that basis. When considering an allegation of apparent bias, the approach is to consider whether the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility or real danger that the tribunal was biased (Porter v Magill [2001] UKHL 67).

Mr Lilley’s first point is that I am the person who decided to list the applications in all three cases on one day. Given that there were two applications in the CIMA case, that makes four applications. Mr Lilley submitted that (i) this put him on unequal terms with the various defendants and reduced his mental capacity, (ii) it was physically impossible for him to carry the documents, (iii) I failed to give adequate reasons for my decision, (iv) this was contrary to the overriding objective and was “yet another arbitrary, oppressive and unconstitutional action by servants of the government and the Court” regarding his cases.

I did decide to list these matters together for the reasons explained above. Initially, since the parties could not agree when the CIMA and Euromoney applications should be listed, I directed that they be heard together. Mr Lilley objected to this and asked that they be heard separately. I considered Mr Lilley’s objections and sent the following message to him and to the other parties:

“In the light to Mr Lilley’s concerns I have considered again the question of whether to list the applications in these two cases together. I gather Mr Lilley is concerned that it will be hard for him to prepare for the two matters on the same day. I have decided to keep the listing arrangements as I directed previously. The reasons are as follows. Listing the two matters together is more convenient for the administration of justice. It allocates a fair allocation of the court’s resources to these cases. It will lead to the matters being dealt with more expeditiously than would otherwise be the case.”

Subsequently I decided that the Aspermont matter should be listed at the same time for the same reasons.

Mr Lilley’s second point is that I refused to list his application to set aside my direction listing the cases together. This arises from the fact that after his objections to the listing arrangements had been considered by me and rejected Mr Lilley purported to raise the same objections again in a further application. I directed that since the points raised had already been dealt with the application was not fit to be issued. On this point Chancery Listing explained to Mr Lilley that I had directed that since “the questions posed” had already been answered, the application was not fit to be issued. Mr Lilley is correct that his second attempt to raise the same points as before did not just “pose questions”, but nothing turns on this characterisation of his grounds. The grounds were the same as had already been considered.

It is convenient to mentioned Mr Lilley’s fifth point at this stage. He submits that my decisions to list the applications in CIMA, Aspermont and Euromoney on one day are contrary to natural justice and so are void. In addition to the points already mentioned, Mr Lilley also submits (i) that Arnold J (who had directed that the two applications in CIMA be heard together) had failed to give adequate reasons for his decision and (ii) that the time estimates of the various applications together exceed the court time available. Point (i) has nothing to do with Mr Lilley’s argument about why I should recuse myself. In relation to point (ii), Mr Lilley is correct that on their face the aggregate of the time estimates came to 15 hours, whereas a single court day is only about 5 hours. However it was apparent that the very close relationship between the cases was likely to lead to a very considerable saving in preparation time for the parties and the court and a very considerable saving in hearing time. It is correct that Mr Lilley argued that this listing arrangement would not assist his preparation but would make it more difficult. However it is perfectly obvious that once one has grasped the essentials of any of Mr Lilley’s cases, the other cases are the same.

All these various matters raise the same issue as far as recusal is concerned. Mr Lilley clearly objects and objected to the listing arrangements. His objections may or may not be well taken. However the way the objections were dealt with would not lead a fair minded and informed observer to conclude that there was any real possibility that the judge making these directions was biased against Mr Lilley.

Mr Lilley’s third point is that “Birss J is the Supervising Judge of IPEC where [Mr Lilley] claims HHJ Hacon made an irrational order in IPEC in the DMG case”. Mr Lilley is correct that I act as the formal link between the rest of the Chancery Division and the IPEC and act as a first port of call in relation to matters which HHJ Hacon or any other judge sitting in the IPEC would like to raise about the workings of the court or its activities. However none of this would lead the fair minded and informed observer to think that I would be biased either in handling the three cases themselves or for that matter handling Mr Lilley’s application to set aside HHJ Hacon’s order (which in the end was not before the court today). The point is irrelevant.

Mr Lilley’s fourth point is that “Birss J has acted contrary to VL’s claims in David Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012]”. The reference is to a judgment I gave while I was in the Patents County Court in that case. It is Hoffman v D.A.R.E. [2012] EWPCC 2. The case related to the use of photographs on the internet. I held the usage infringed the claimant’s copyright and assessed damages. The facts relating to the damages assessment are similar to the facts relied on by Mr Lilley. I assessed damages on a willing licensor/willing licensee basis (see paragraph 38). In effect that was the same as the approach referred to in the DMG case as “group 3” from General Tire. Mr Lilley’s case is that that approach is inappropriate in his case and submits I was wrong in Hoffman to use it. He contends that the correct approach is to consider the actual licensor and licensee who one assumes are willing, in other words actual bargains not hypothetical bargains. This is a key element in Mr Lilley’s reasoning in support of the enormous sums claimed in his damages calculations. He submits that given Hoffman, “Birss J would be a judge in his own cause”.

It is a feature of our system of justice that judges are often called upon to consider questions that are the same as or closely related to questions they themselves have decided in an earlier case. This is particularly the case in a specialist area. Judges with experience in intellectual property cases are often required to deal with the assessment of damages in closely analogous factual circumstances and to consider General Tire, which is one of the leading cases in the area. Often judges reach the same or similar conclusions on a point to the conclusions they reached before but on other occasions they reach a different result. None of this would lead the fair minded and informed observer to think that a judge in that case was or would be biased.

I have rejected Mr Lilley’s arguments individually. When I stand back and consider them together they do not give rise to a proper case of apparent bias.

In my judgment each of Mr Lilley’s applications brought in each of the three cases of CIMA, Aspermont and Euromoney that I should recuse myself should be dismissed. They are totally without merit.

Mr Lilley submitted that I should adjourn the applications in the CIMA and Aspermont cases so that the only one before the court was the Euromoney application. His submission was that to proceed with the applications in CIMA and Aspermont at the same time as Euromoney was unfair because he could not prepare to deal with all of them together. This is the same point he has made before but I will consider it afresh.

At first sight, by far the most proportionate, cost effective and fair way to resolve the various issues arising in these closely related cases is to hear the applications together. It is the most cost effective thing to do from the parties’ point of view both in general and because the various applications cross-refer to the parallel cases. By taking this course the court will be familiar with all the cases. Matters will go more quickly and take less time to prepare.

Mr Lilley’s approach to the litigation of his claims puts the defendants to very considerable expense and also takes up a considerable share of the court’s resources. The overriding objective is to deal with cases justly and at proportionate cost (CPR r1.1(1)). Proportionality involves taking into account the amount of money involved in a case (CPR r1.1(2)(c)(i)). If Mr Lilley’s claims were really worth anything like the sums he is claiming then it might be appropriate to manage them in a different way. However, for the reasons expressed in more detail below, Mr Lilley’s damages claims are wholly unrealistic. The true value of his claims is not clear but the value of any of these claims is plainly nothing like the sums claimed. Whether the value is as low as a figure in the region of £83 (see DMG) I cannot say. What I can say is that at best, making every conceivable assumption in Mr Lilley’s favour, the most the claims can be worth will be a modest sum. Although one cannot put a precise figure on what any of these claims are worth, hearing the various applications together would be both proportionate to what is at stake and would allot to these cases an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

The only reason not to take this course and so to adjourn the applications in CIMA and Aspermont could be Mr Lilley’s difficulty in preparing for them. I recognise that Mr Lilley would and has found it difficult to prepare for these matters. Ensuring the parties are on an equal footing is an important element in furthering the overriding objective (CPR r1.1(2)). However these difficulties are all of Mr Lilley’s own making. First, the cases are closely related to each other. Once one has been prepared, preparing the others is much easier. Second, the key element of all of them, the damages calculation, is more or less identical in each. Third, Mr Lilley could and should have used the time this week to prepare for the hearings instead of bringing an unmeritorious recusal application. Fourth, the real problem is the length, prolixity and lack of clarity in the documentary materials filed by Mr Lilley. Every document he files is lengthy, diffuse and confusing. In each case his Particulars of Claim consist of twelve sections and runs to about 150 - 180 pages. Fifth, Mr Lilley had an ample opportunity to present his submissions on the issues arising and has taken that opportunity. There are two applications in the CIMA case and one application in Aspermont. In support of his application in the CIMA case to set aside the order of Roth J, in March 2014 Mr Lilley filed a seven page “Provisional Application Statement of case” as well as a full “provisional” bundle which included papers relating to his application for permission to appeal Roth J’s order. In relation to Aspermont’s application Mr Lilley filed a seven page document dated 2^nd July 2014 setting out his reasons why Aspermont’s application should be dismissed. In relation to the defendant’s application in the CIMA case, Mr Lilley filed a “Truncated Amended Skeleton Argument” in court on the morning of 3^rd July. It contains nearly 100 pages of submissions.

By these applications Mr Lilley is repeating the same arguments he has made before in the context of listing these applications. The points were taken into account before but did not lead to a change in the listing arrangements or adjournment of the applications. I will refuse these two further applications to adjourn the CIMA and Aspermont applications. They are totally without merit.

I now turn to consider the substantive applications.

The position relating to CIMA was that in a judgment dated 13^th March 2013 ([2013] EWHC 1354 (Ch)) Roth J had struck out most of the claim on the basis of the Limitation Act 1980. He also held that one of Mr Lilley’s claims, for unlawfully resisting copyright infringement, was bad in law. However, Roth J had found that Mr Lilley should be given the opportunity to provide Further Information in relation to any infringing acts on which he intended to rely which had taken place within the limitation period. The order made was that Mr Lilley should give the particulars of any downloading in the United Kingdom of the works alleged to be infringed from the four websites relied upon within 28 days of the date of the order. The order was made on 15^th March 2013 and sealed on 27^th March 2013. It was not an unless order.

Mr Lilley applied for permission to appeal Roth J’s order. It was refused on paper and refused at an oral hearing by Vos LJ on 17^th February 2014.

CIMA’s position was that Mr Lilley had not complied with that order. Its application is to strike out the remaining claim as it discloses no reasonable grounds for bringing the claim (CPR r3.4(2)(a)). That is on the basis that Roth J found that Mr Lilley needed to provide the Further Information required in order for his statement of case to provide reasonable grounds for bringing the claim and he has not done so. CIMA also sought an order striking out the CIMA case on the Jameel basis and pointed out that Roth J specifically mentioned the court’s ability to strike out a claim that is wholly disproportionate to the costs involved. Finally CIMA submitted that the remainder of Mr Lilley’s claim should be struck out for failure to comply with the costs order made by Roth J or else the court should make an unless order such that if Mr Lilley does not pay those costs in a short time his claim will be struck out.

The other application in the CIMA case is one brought by Mr Lilley to “set aside/revoke/quash/overturn” the original order of Roth J and for an order that the application should be stayed until twenty one days after a transcript at public expense of the reasons given by Vos LJ in February 2014 refusing permission to appeal from Roth J had been provided.

I will deal with Mr Lilley’s application to set aside the order of Roth J first. Mr Lilley relies on CPR r3.1(7). It is clear from the Court of Appeal in Tibbles v SIG [2012] EWCA Civ 518 that while the court does have a power to vary or revoke an order, it is a power which should be exercised sparingly and only in appropriate circumstances (see esp. paragraphs 39 and 42). In this case there has been no change of circumstances since the order was made, if anything the defendant has gone forward in reliance on the order. The facts on which the original decision was made have not been shown to be misstated. The application has not been made promptly. Instead what has really happened is that Mr Lilley embarked on this approach only after his attempts to obtain permission to appeal were not successful.

In support of his application Mr Lilley makes a large number of very serious allegations about the hearing before Roth J and the judge’s judgment. He asserts that the hearing was unlawful, the judgment was contrary to natural justice, “Roth J has aided and abetted and/or conspired for CIMA’s alleged fraud”, “Roth J has allegedly acted fraudulently” and “Roth J appeared to be arguing for the Defendants”. Mr Lilley’s arguments in support of these submissions form part of the 100 pages of submissions I have already mentioned. I read them. They contain nothing of any merit which does or could provide any support for these allegations. The allegations are entirely unmeritorious and wrong.

The remainder of Mr Lilley’s submissions in support of his application consist of arguments why Roth J’s judgment is wrong. These would be matters for Mr Lilley’s applications for permission to appeal. They are not reasons to set aside Roth J’s order. Nor is there any good reason why the application should be adjourned pending a transcript of the judgment of Vos LJ on 17^th February 2014.

Mr Lilley’s application will be dismissed. It is totally without merit.

I turn to consider CIMA’s application.

Despite all the effort Mr Lilley has expended since Roth J’s order last year, the one thing he has not done is comply with paragraph 4 in order to give particulars of what he relies on as infringing activity within the limitation period. Roth J was very sceptical that there would be any infringements after the relevant date but he recognised that Mr Lilley had not been given an opportunity to focus on that point and by paragraph 4 of his order the judge gave Mr Lilley the chance to do so. He did not take it.

CIMA submits that on the findings of Roth J, without those particulars the claimant’s Particulars of Claim does not disclose reasonable grounds for bringing the claim. The only way in which reasonable grounds could have been disclosed would have been for Mr Lilley to provide the information required but he has not done so. Thus the remainder of the case should be struck out.

Since Mr Lilley is a litigant in person, the legal team for CIMA properly drew to my attention that the law of copyright has developed somewhat in relation to the precise scope of the infringing act of “communication to the public” since the time when Roth J made his order. In particular the CJEU has handed down the decision in Svensson v Retriever Sverige (C-446/12). In addition Mr Justice Arnold reviewed the relevant authorities on the issue of communication in Paramount v British Sky Broadcasting, [2013] EWHC 3479 (Ch). CIMA submitted that had these judgments been available to Roth J when he gave his judgment, the language he used might (or might not) have been different but neither of them altered the essential point decided by Roth J and neither judgment absolved Mr Lilley of the need to provide a proper statement of case setting out what he relies on as acts of infringement within the limitation period. I agree.

Since Mr Lilley has made no attempt whatsoever to comply with Roth J’s order, in my judgment the conclusion that the remainder of his Particulars of Claim should be struck out is inevitable. I do not need to deal with the other CIMA applications.

The Aspermont case is in the same form as the others but its procedural position is different. In Aspermont no Defence has yet been filed because it is not yet due.

Aspermont’s position at an early stage was Mr Lilley’s Particulars of Claim, which consist of the now familiar 150 or so pages in twelve sections with a huge claim for damages, were deficient in various important respects. In March 2013 Master Teverson ordered Mr Lilley to file Amended Particulars of Claim by 19^th April 2013. The Amended Particulars of Claim had to:

In April and May 2013 Mr Lilley filed further documents. They are referred to as amendments to his Particulars of Claim. They do not show the changes made. One document includes a number of exhibits, as required by the order, and runs to about 260 pages.

Mr Lilley also applied for permission to appeal Master Teverson’s order. On 20^th May 2013 Newey J granted a stay pending appeal or further order and directed that a transcript of Master Teverson’s judgment be provided at public expense. On 24^th June 2013 Newey J directed that unless an appeal bundle was filed, the appeal would be struck out. This was because Mr Lilley had failed to request a transcript of the judgment of Master Teverson from the transcription unit.

Mr Lilley then applied to set aside the order of Newey J and to extend time. On 25^th July 2013 that came before John Martin QC sitting as a Deputy Judge of the High Court. He refused that application and ordered Mr Lilley to pay £2,617 costs. John Martin QC directed that the time for the Defence be extended until 28 days after the determination of Mr Lilley’s appeal from the order of Master Teverson.

On 1^st August 2013 Mr Lilley applied to set aside both the order of John Martin QC and again to set aside the order of Newey J. These were listed for 8^th October 2013. On 23^rd September 2013 Mr Lilley applied to vacate the hearing date of 8^th October 2013. That came before me sitting in the Chancery Applications Court on 8^th October. I heard Mr Lilley in person, refused to vacate the hearing and dismissed the 1^st August 2013 application (i.e. the application to set aside both the order of John Martin QC and again to set aside the order of Newey J). I also ordered Mr Lilley to pay costs of £2,500 within 28 days. Neither these nor the earlier costs have been paid.

On 24^th October 2013 Mr Lilley filed a notice of appeal relating to my order. He did not seek to stay the costs provisions. Mr Lilley has suggested in correspondence that he may abandon this application for permission to appeal but it is unclear what has happened and, as Mr Smith the solicitor for Aspermont put it, the procedural position remains unclear.

Before me Aspermont applies to strike out the action as a whole. This is on a number of grounds. First, because the Particulars of Claim are unclear, excessive in length and overall are an abuse of process. Second, because the Particulars of Claim do not comply with CPR Part 16.4 nor with the order made by Master Teverson. Third, Aspermont submits that the damages claim is ludicrous. It is a claim for £27m for infringement relating to three articles which had been sold for £250 each. Fourth, since in substance the claims are the same, Aspermont seeks to strike the case or the bulk of it on the same Limitation Act ground which was considered by Roth J in the CIMA case. Sixth, Aspermont seeks to strike out the case on the Jameel basis relied on by HHJ Hacon in the DMG case in the IPEC. Seventh, Aspermont points out that the Particulars of Claim include an obviously hopeless claim based on unlawfully resisting a copyright claim. The same claim was struck out by HHJ Hacon in DMG (paragraphs 13-16 of his judgment) and by Roth J in CIMA (judgment paragraph 45). It should be struck out from Aspermont too.

I decided not to strike out the whole of the Aspermont case with reasons to be given in this judgment. My reasons are as follows.

First, plainly the Aspermont case is in substantial part the same as the CIMA case and therefore the effect of the Limitation Act 1980 in Aspermont is almost certainly the same as the impact of that point in CIMA. However, just as in CIMA, it may be that Mr Lilley can plead a claim which gives particulars of infringements on which he can rely within the limitation period and in my judgment he should be given a chance to do so.

Second, Master Teveson’s order was not an unless order. Moreover the procedural position in which this case finds itself as a result of Mr Lilley’s numerous applications is not entirely clear. Although this lack of clarity is a consequence of Mr Lilley’s own actions, he should still be given a final chance to put his statement of case in a proper form, address the various deficiencies and comply with Master Teverson’s order before the matter is struck out.

Third, I am not satisfied on the materials before me that the claim can be struck out on the Jameel basis. A critical aspect of the position before HHJ Hacon in DMG was that Mr Lilley accepted that a General Tire “group 3” damages claim in that case was worth £83. He does not accept that a group 3 damages claim in this case would be worth as little as that and there is no material before me which would allow me to say how much a damages claim assessed on that basis would be worth. Without at least giving Mr Lilley the chance to think about and explain what he would contend a claim assessed on that basis would be worth, it would not be fair to strike out the entire case on a Jameel basis.

Fourth, while I accept the submission that the court has jurisdiction to strike out a Particulars of Claim whose sheer length makes it oppressive (see Dunn v Glass Systems) (Newcastle District Registry 11/07/2007) in my judgment it would not be fair to take that course at this stage in this case. It is perfectly true that Mr Lilley’s pleading is far too long, very unclear in parts and highly argumentative. However, it is also clear from the parallel DMG and Euromoney cases that defendants in essentially the same claims are able to plead to Mr Lilley’s allegations. Although he puts them in an extremely unhelpful and difficult way, Mr Lilley’s claims are in fact not particularly complicated. Given that others have found it possible to respond to his claims, it would be wrong and unfair to strike them out on that basis.

Fifth, while the claim for unlawfully resisting a copyright claim is plainly hopeless, its presence does not justify striking out the entirety of Mr Lilley’s Particulars of Claim.

A key submission made by Miss Michalos for Aspermont is that Mr Lilley’s damages claim is ludicrous. In considering this submission I will look a little more closely into Mr Lilley’s damages claim. For this purpose I will assume in Mr Lilley’s favour his entire case on liability for copyright infringement, which Aspermont and the other defendants do not accept for various other reasons.

The starting point is General Tire. In that case the court recognised three kinds of damages claims for infringement of an intellectual property right. They can be called groups 1, 2 and 3 although those terms do not appear in the case itself.

In group 1 claims the rights holder has been selling products and the infringements cause actual lost sales. The measure of damages is the claimant’s actual lost profit (or lost contribution to overhead). In group 2 claims the rights holder has a business offering licences for the same acts as those found to infringe. The measure of damages is the actual lost licence fee or royalty.

In group 3 claims the infringement has not actually caused any lost sales and the rights holder did not in fact offer licences in respect of acts of the same kind as the infringing acts. In that case the measure of damages is not nil, it is a notional royalty to compensate for the invasion of the right holder’s monopoly. In effect it is a notional licence fee for a notional licence. It is calculated by considering objectively what rate a willing licensor and willing licensee in the position of the rights holder and the infringer would have agreed upon. The fact that in reality the actual rights holder would not have granted a licence at all does not prevent the damages being assessed this way. Equally the fact that the actual infringer claims that they would only ever have offered a tiny sum (which no willing licensor would have accepted) does not mean that that tiny sum must be the notional royalty. By the same token the fact that the actual rights holder claims that they would only have accepted a licence at a high rate (which a willing licensee would never have accepted) does not mean that that high rate must be the notional royalty either. The court will arrive at a rate it considers to be fair, reasonable and appropriate in the circumstances.

Approached on a group 3 basis Mr Lilley’s damages (assuming his infringement claim was well founded) would be calculated on an objective, willing licensor/willing licensee basis. The sum would very likely be modest. Mr Lilley’s case is that his claims are brought on a group 2 basis. In the DMG case his claim on that group 2 basis was for over £900 million. HHJ Hacon noted that Mr Lilley had accepted that if the DMG claim was calculated on that group 3 basis, it would be worth £83. Before me Mr Lilley has not accepted what the amount on a group 3 basis would be in any of the other cases, Aspermont, CIMA or Euromoney.

He maintains that the group 3 approach is the wrong basis for his claim. He submits the correct measure of damages is on the footing that he is and was at the relevant time a licensor of his copyrights in the articles. Thus for each individual instance a sum equivalent to his licence fee, possibly with a small discount, should be charged. Since each independent instance is an independent infringement one should not aggregate them together so as to produce substantial discounts either because of a number of countries in which the articles were available or because of a number of months for which they were available. Each instance is a free standing infringement and each is treated as being entitled to a distinct fee. It is as if each instance is treated as a distinct notional negotiation reaching the same resulting fee as the one the previous month, as if that previous one had not happened. In effect the slate is wiped clean every month as far as any commercial discount would be concerned.

Although Mr Lilley recognises that the fees he charged in the first place for these articles were not fees for making copies of the articles available on websites over time and across the world, he submits that the fees which he did charge for the articles are the relevant comparable for the purposes of assessment of damages.

Another way in which Mr Lilley articulates his objection to the group 3 willing licensor/willing licensee calculation is to emphasise that the approach must consider not a notional willing licensor, but the actual licensor, i.e. himself. And his fees for his articles were the ones he has used in his calculations.

There are a number of flaws in Mr Lilley’s analysis. One major flaw is that his original price for the article when sold to a magazine, assuming it was a licence and not an assignment, is not a relevant comparable. It cannot be used in the way Mr Lilley’s damages calculation applies it to the infringing acts complained of in this case. The fact that the price is the price Mr Lilley charged for the original articles to appear in a printed monthly magazine does not mean that it is comparable to a monthly, per country licence fee for the same article to be available on a website over an extended period of time. The two are simply not the same.

Another major flaw (or perhaps the same flaw looked at from the other perspective) is that Mr Lilley’s approach to enumerating millions of instances of infringement and treating each “instance” as an act which can attract a fee in any way comparable to the price of the original article is not right. It is true that each act of infringement is a separate tort but it is not right that damages can sensibly be calculated in a case like this by treating each so called “instance” as wholly separate.

Mr Lilley’s calculations are not calculations any real business person in the field of licensing magazine articles to be made available on the internet would ever use, either as a licensor or a licensee. A suggestion inherent in Mr Lilley’s calculations seems to be that he, as the licensor, would never have accepted less than the sums produced in these calculations either at all or because each instance is treated as a free standing infringement. The suggestion is hopeless on either basis. An article sold to a magazine for the sorts of sums charged by Mr Lilley in the 1990s in this case was simply never going to attract a level of licence fee as set out in his calculations. Whether the true measure of damages will be as little as £83 or a comparable figure I cannot say but it is perfectly obvious that whatever the appropriate damages would be, and even assuming the limitation point in Mr Lilley’s favour, they are never going to be anything like £27m in the Aspermont case. The true amount would be a much lower sum.

In this case the debate which Mr Lilley is highly focussed upon, about whether this case is a group 2 or group 3 General Tire case, is perhaps not a useful one. On Mr Lilley’s case he was a licensor of his copyright and in that sense one could characterise the case as a group 2 case rather than a group 3 case. However when it comes to assessing the correct measure of damages, he did not have an established business licensing acts of the kind now alleged to infringe at the rate and in the manner claimed. Thus the case is more like a group 3 case but an obsession with the group into which the case falls may not help. The court, if it finds infringements of the kind alleged will want to find a sum which properly compensates Mr Lilley for the infringements. The correct sum is one which is compensatory, not punitive in nature. The correct sum will be based on considering actual, commercially realistic rates for the appearance of articles on the internet. It will not be a sum like the amount claimed which would produce a huge windfall for Mr Lilley.

Ms Michalos characterised Mr Lilley’s damages claim as ludicrous. The term I will use is unrealistic or wholly unrealistic.

The fact that I decided not to strike out the whole of Mr Lilley’s Particulars of Claim in the Aspermont case does not mean that things can continue as they are. They cannot. His documents may have dealt with the points raised in Master Teverson’s order referred to in sub-paragraphs (b) and (c) above but if they do this at all, they do not do it clearly. His documents do contain schedules relating to damages (c.f. sub-paragraph (e) of the order) but the claim advanced is unrealistic. The fair thing to do is give Mr Lilley one last chance to advance a proper case, deal properly with the matters required to be dealt with by Master Teverson’s order, and set out a realistic claim relating to the quantum of damages.

The order will be an unless order in that unless Mr Lilley files amended Particulars of Claim which comply with the material parts of Master Teverson’s order, the entirety of his claim will be struck out. The parts of Master Teverson’s order which the amended Particulars of Claim must comply with in order avoid the impact of the unless order are sub-paragraphs (b), (c) and (d). Moreover the amended Particulars of Claim must also specifically identify the occasions or downloading or other infringement which are relied on against the defendant. This may be covered by reference to sub-paragraph (d) but I will spell it out expressly. Its purpose is to require Mr Lilley to focus on the Limitation Act problem which he faces and give him the opportunity, as he had in the CIMA case, to identify infringements within the limitation period.

Ms Michalos submitted that I should impose a page limit on Mr Lilley. Given the nature of the documents filed hitherto, a page limit is justified. I will set a limit of 20 pages. That is more than enough for Mr Lilley’s claims to be expressed. The page limit does not include documentary exhibits.

At the hearing I indicated that sub-paragraph (a) (showing amendments underlined in red) would also be included in the unless order but on reflection, given the page limit, that would be unfair. The unless order will not refer to sub-paragraph (a) of Master Teverson’s order.

The period within which the statement of case should be filed is 28 days from the date of the hearing (3^rd July). The material parts of Master Teverson’s order are all the sub-paragraphs save for the first one concerning amendments in red and the last one about a damages schedule. He had provided such a schedule which sets out his damages claim.

Aspermont submitted that it was worth setting a date now for the court to be able to determine whether Mr Lilley has complied with the order and that that date should be shortly after the date for compliance. As it happens I will be sitting in the middle two weeks in September (8^th to 19^th September) and so I will direct that the case comes before me on a date to be fixed in that period. That hearing will be used to deal with two things. First to consider whether Mr Lilley has complied with the order to serve Particulars of Claim compliant with this order. Second it will provide an opportunity for the court to consider whether Mr Lilley has taken the opportunity to advance a realistic damages claim both in terms of the amount claimed and bearing in mind the serious Limitation Act problems he faces. At that stage the court will be able to assess whether the case should be struck out, as the defendant contends, on the footing that it is disproportionate having regard to the likely value (Jameel).

The order will also include an unless order relating to the costs which Mr Lilley has been ordered to pay in Aspermont hitherto but has not paid. The reasons for making this order are as follows. Mr Lilley’s approach to this litigation has caused the defendants to expend very considerable costs in dealing with him. He has been ordered to pay costs but has not done so. In the CIMA case counsel referred to the summary of the relevant principles in my judgment in Musion Systems v Activ8-3D Ltd [2012] EWPCC 5 at paragraphs 19-24. I referred there to the judgment of Sir John Chadwick in Crystal Decisions v Vedatech [2008] EWCA 848 and to the importance of a litigant’s right to a fair trial protected by Art 6 ECHR.

Immediate costs orders are made in part to encourage litigants to take a sensible approach to litigation. Mr Lilley has not paid the costs he was ordered to pay in the Aspermont case, nor had he paid the costs he was ordered to pay in the CIMA case. In neither case has he provided any credible reason why not. He has not demonstrated that he cannot afford to pay those costs nor has he sought time to pay. There is nothing before me to suggest that an unless order would deprive Mr Lilley of access to justice. In these circumstances it is fair that Mr Lilley should actually pay the costs he has already been ordered to pay many months ago and that unless he does so his claim against Aspermont will be struck out.

The Euromoney defendants do not accept they have committed any infringing acts but again, as in the other cases, a major area of dispute between the parties is about the quantum of any possible damages even if they have.

Mr Lilley’s application is for an order compelling Euromoney to answer a Request for Further Information served by him. The circumstances are that he had served a lengthy Request for Further Information on Euromoney before and the matter had come before Chief Master Winegarten on 10^th May 2013. The Chief Master refused to require Euromoney to respond to the Request for Further Information in the form in which it was served because it was too long and argumentative, but he made a limited order requiring Euromoney to answer two points. They relate to the defendant’s position vis-à-vis Mr Lilley’s damages calculation. Euromoney filed a response pursuant to the Chief Master’s order on 20^th June 2013. In parallel their solicitors, Mishcons, wrote a full letter on the same date explaining in more detail their position in relation to damages. In essence the Euromoney defendants contend that the only proper basis for a damages award, assuming all else in Mr Lilley’s favour, is a General Tire group 3 approach based on a willing licensor and willing licensee.

The application in Euromoney is Mr Lilley’s application to compel the defendants to answer a further Request for Further Information which he filed on 26^th November 2013. These requests are all based on Mr Lilley’s submission that he does not understand the answers given by Euromoney so far and does not accept that the defendants are properly answering his questions. The main point at issue in the questions posed by Mr Lilley is concerned with the willing licensor / willing licensee basis of calculation of damages and asking what authority the defendants have for the proposition that a willing licensor / willing licensee (or group 3) calculation is the correct way to approach the matter.

His request for further information is 22 pages long. It is argumentative and unclear. The defendants have gone to considerable lengths and cost to explain their position to Mr Lilley. He does not agree with it but that is not the issue. Requiring the defendants to set out a yet further explanation of their position will achieve nothing. It is quite obvious that his application should be dismissed. It is also totally without merit.

CPR r23.12 provides that when an application has been dismissed and is totally without merit the court must consider whether to make a civil restraint order. Since I had dismissed all of Mr Lilley’s applications on that basis, after dealing with the substantive applications in all three cases, I adjourned the hearing to come back at 2.15pm to consider whether to make civil restraint orders (CROs) in relation to Mr Lilley.

I heard all three counsel in all three cases and Mr Lilley on the question of whether to make a civil restraint order in any or all of the cases, and if so what sort of civil restraint order should it be. The questions I have to decide are whether, in each of the three cases, I should make no CRO at all, a Limited Civil Restraint Order (Limited CRO) or an Extended Civil Restraint Order (Extended CRO). All three counsel submitted that while in the end it was a matter for the court, an Extended CRO was appropriate in each case.

The procedure is governed by Practice Direction 3C – Civil Restraint Orders. Paragraph 2 deals with Limited CROs and paragraph 3 with Extended CROs. Paragraph 4 deals with General Civil Restraint Orders but it is clear that a General CRO would not be appropriate in this case.

Paragraph 2.1 of the Practice Direction, in the paragraphs relating to a Limited CRO, provides that such an order may be made where a party has made two or more applications which are totally without merit. A point arose in this case whether the requirement for two applications which are totally without merit can only be satisfied by two applications made in the same proceedings in which the limited civil restraint order is to be made. Counsel were not aware of a decision on the point.

The way the sub-paragraph in the Practice Direction is expressed is at least capable of being read as not being limited to such a situation and as including a case in which one or both applications which are totally without merit were made in other proceedings. However Mr Hughes pointed out that Court Form N19 (Limited Civil Restraint Order) is clearly written on the basis that the totally without merit applications are in the same proceedings as the one in which Limited CRO is to be made. Mr Hughes also reminded me that in Bhamjee v Forsdick [2004] 1 WLR 88, which was the judgment which led to the Practice Direction being drawn up, the Court of Appeal’s judgment (paragraph 39) clearly contemplated that what are now called Limited CROs would be made only when the applications made in the same proceedings had been found to be totally without merit.

Since in all three cases before me there are at least two applications made by Mr Lilley which have been dismissed as totally without merit (see below), the point does not strictly arise for decision. I will only say that it seems to me that since the paragraph appears in a context of a set of sub-paragraphs concerned with whether to make a Limited CRO, read in that context and bearing in mind the Practice Direction was produced following Bhamjee, there is a strong case that the sub-paragraph requires two applications in the same proceedings, i.e. the proceedings in which the Limited CRO is sought.

For a consideration of the principles applicable the parties referred to the judgment of the Court of Appeal in R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990; [2007] 1 WLR 536 at paragraph 66-68 and to the judgment of Edward Bartley Jones QC sitting as a Deputy Judge of the High Court in Courtman v Ludlam [2009] EWHC 2067 (Ch) at paragraphs 4 to 9.

At the hearing on 2^nd July Mann J dismissed Mr Lilley’s applications in all three cases as totally without merit. I have dismissed Mr Lilley’s recusal applications in all three cases as totally without merit. Moreover I dismissed the following further applications by Mr Lilley as totally without merit: his adjournment applications in CIMA and Aspermont, his application to set aside Roth J’s judgment in CIMA, and his application in Euromoney to require answers to his Request for Further Information.

In my judgment a Limited CRO in each case would be the minimum order the court should make in these circumstances. It is clear that each application made by Mr Lilley which was totally without merit was not a “one off”. Rather Mr Lilley is a litigant who will not take no for an answer and there is a real likelihood of future applications being made which are also totally without merit. The real question is whether I should make an Extended CRO.

The effect of an Extended CRO would be to restrain Mr Lilley from making claims or issuing applications in the High Court (or county court) concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of the judge identified in the order (PD 3C paragraph 3.2 (1)). An Extended CRO may be made when a party has persistently issued claims or made applications which are totally without merit (PD 3C paragraph 3.1).

In Courtman Mr Bartley Jones QC summarised the authorities relating to “persistence” in this context as follows:

‘8. What, therefore, does "persistently" mean in para 3.1 of the PD? In Kumar the Court of Appeal cited (at para 68) the following passage from Bhamjee:

"By the time the order comes to be made the litigant for whom the further restraint has been adjudged necessary will have exhibited not only the hallmarks of vexatiousness…but also the hallmarks of persistent vexatiousness….We do not include the word "habitual" among the necessary criteria for an extended civil restraint order, but there has to be an element of persistence in the irrational refusal to take "no" for an answer before an order of this type can be made."

At para 69 in Kumar the Court of Appeal stated that under the statutory CRO regime it was sufficient that the previous claims or applications were totally without merit, and that the litigant persisted in making them. The requirement for "vexatiousness", or its modern equivalent, had gone.

9.

What seems, therefore, to be required is a persistence in making wholly unmeritorious claims. I note that in Supperstone –v- Hurst [2009] EWHC 1271 Mr Bernard Livesey QC (sitting as a Deputy Judge of the Chancery Division) regarded three wholly unmeritorious claims or applications by Mrs Hurst as being sufficient to constitute "persistence" (para 55). To my mind, three unmeritorious claims or applications must be the bare minimum for establishing "persistence". The essential thrust of decisions such as Ebert, Bhamjee and Kumar is that the court should engage in a graduated, and proportionate, response to the identified abuse. This would make it logical for the statutory scheme to have a higher pre-condition threshold for the making of an extended CRO as opposed to a limited CRO (and an even higher threshold as a pre-condition for the making of a general CRO). The wordings of paras 2.1, 3.1 and 4.1 of the PD clearly confirm that this is the case. If the pre-condition threshold for a limited CRO is two or more applications which are totally without merit then "persistence" in para 3.1 of the PD must, on any logical analysis, require more than two unmeritorious claims or applications.’

I agree with the Deputy Judge that the court should engage in a graduated and proportionate response to abuse when it is identified and I also agree that "persistence" in sub-paragraph 3.1 of PD 3C must require more than two claims or applications which are totally without merit.

Whether or not the two applications referred to in sub-paragraph 2.1 relating to a Limited CRO are required to be in the same proceedings as the one in which the Limited CRO arises, the test to be applied relating to an Extended CRO under sub-paragraph 3.1 has a wider ambit. In deciding whether a litigant has persistently issued claims or made applications which are totally without merit, the court is entitled to and should consider the litigant’s conduct as a whole, so far as it is able to do so. All aspects of the litigant’s conduct are capable of being relevant, not only his or her conduct in the particular proceedings in which the point arises.

Although there are three distinct actions before the court, for the reasons I have already described they are closely related to one another. If an Extended CRO is appropriate, it would be appropriate in all three cases.

There are five aspects of Mr Lilley’s conduct which fall to be considered.

First, there are the applications in these proceedings which have been formally characterised as totally without merit. If one counts each application in each case separately then Mr Lilley has made three on 2^nd July 2014 and seven on 3^rd July 2014. Even if one treats some of the applications as a single application (for example considering the three before Mann J as a single one, the three recusal applications as one and the two adjournment applications as one) Mr Lilley has still made five distinct applications which are totally without merit in these closely related proceedings.

Second, I refer to the judgment of HHJ McKenna sitting as a Deputy Judge of the High Court in R (on the application of Lilley) v Central London County Court [2009] EWHC 1400 (Admin). This arose in litigation by Mr Lilley about a penalty charge notice for failure to pay the congestion charge. The judge noted that an application before Foskett J for permission to apply for judicial review had been dismissed as totally without merit (paragraph 1), an application for permission to appeal had been dismissed as totally without merit (paragraph 5) and held that all the claims before the court on that occasion were misconceived and totally without merit (paragraphs 7 and 10). Although this was five years ago, in my judgment it is relevant evidence that Mr Lilley is someone who persists in making entirely unmeritorious applications.

Third, I refer to the circumstances surrounding Mr Lilley’s application to set aside the order of Roth J in CIMA. The application was brought after Mr Lilley’s attempt to obtain permission to appeal Roth J’s order had failed. Thus by the application Mr Lilley was refusing to take no for an answer.

Fourth, Miss Lane for CIMA submitted that it was clear that Mr Lilley was threatening to take related proceedings and making threats against officers of the defendant organisation CIMA. She showed me a letter that Mr Lilley had written to the President of the Chartered Institute itself. She also reminded me that the documents submitted by Mr Lilley are peppered with unsubstantiated allegations of fraud and corruption. Examples are the allegations against Roth J which are quoted above. She submitted that this showed that Mr Lilley was indeed contemplating making applications or bringing claims relating to these proceedings which would be covered by an Extended CRO but not covered by a Limited CRO.

Fifth, Counsel submitted that the earlier applications by Mr Lilley in the Aspermont case, although they had not been characterised that way, were in fact totally without merit and could be taken into account. It is clear that the court is entitled to address earlier applications not characterised as totally without merit, decide that they were in fact totally without merit and then take them into account in considering an Extended CRO. However the Court of Appeal in Kumar explained (paragraph 68) that to take this course requires a more detailed examination of the earlier litigation history than had been carried out hitherto in that case. I will not extend the length of this judgment any further by embarking on a detailed analysis of the earlier applications in the Aspermont case. Accordingly I will not take those earlier applications into account in this respect.

Looking at the first four points set out above, I find that on a number of separate occasions Mr Lilley has shown an irrational refusal to take no for an answer. There are ample grounds for concluding that Mr Lilley has persistently issued claims or made applications which are totally without merit. I will make an Extended CRO in each of the three cases before the court.

Even though the result of my decision in the CIMA case is that the proceedings are at an end, Mr Lilley has shown that he is quite prepared to apply to set aside judgments of that kind rather than (or as well as) seeking to appeal them. An Extended CRO is therefore appropriate in the CIMA case. It would not interfere with any appeal by Mr Lilley in that case to the Court of Appeal.

The period of the order (PD 3C sub-paragraph 3.8) will be two years. The courts in which Mr Lilley is restrained from issuing claims or making applications are the High Court and the county court.

Since it was possible that a CRO of some kind would be made in these proceedings I consulted with the Chancellor of High Court about the naming of the judge in the order. He indicated that since I had become fully aware of the details of Mr Lilley’s claims, if a CRO order was made and subject to the submissions of the parties, the judge to be named should be me. Having heard the parties there is no good reason why the judge named in the CRO should be anyone other than myself.

This judgment sets out the reasons why various orders made on 3^rd July 2014 were made. There is no need for any party to attend the handing down.