Rage, rage against a costs order: conduct sanction for successful claimant in Dylan Thomas case

Copyright dispute: No error of principle by district judge

A deputy district judge was right to penalise a successful claimant in costs for putting undue pressure on the defendant by threatening a much more expensive case in the US, the High Court has ruled.

The case was a copyright infringement case over a photograph of the poet Dylan Thomas and his wife.

The claimant initially brought proceedings in Ireland and threatened to do so in the US, which Deputy District Judge Vary said appeared to be deliberately intended to maximise cost and pressure on the defendant to settle.

This was, he said “one of the rare cases where the court should mark its disapproval of the litigation conduct of a successful party by ordering that he pay a portion of his opponent’s costs”.

The defendant had taken a copy of the photo from the website VisitWales.com and used a cropped version showing only Dylan Thomas’s head on a website his parents used to advertise holiday cottages in Wales.

The claimant in Pablo Star Media Ltd v Bowen [2017] EWHC 2541 (IPEC) obtained judgment in default and the trial concerned only damages. DDJ Vary awarded the claimant (called ‘Media’ in the ruling) £250 in damages plus £3 interest, applying the ‘user principle’.

He declined to award Media any costs but, because its conduct of the case had been in breach of the overriding objective, ordered Media to pay a proportion of the defendant’s costs, namely the £164 travelling costs he incurred attending the trial. Mr Bowen was ordered to pay the claimant the balance of £89.

The claimant’s sole director, Haydn Price, told His Honour Judge Hacon, sitting in the Intellectual Property Enterprise Court, that he had instigated Media’s action in Ireland because that was where he lived and because court fees were lower, but started fresh proceedings in England and Wales because of delays and the lack of progress in Ireland.

HHJ Hacon said he would assume in Mr Price’s favour that the Irish proceedings did not in themselves constitute an oppressive campaign.

“I do not think that the same can be said of Mr Price’s indication that if Mr Bowen did not meet his demands, Media may sue in the United States and seek payment of $150,000…

“Mr Price appears to be an enthusiastic litigator. I take the view that Mr Price not only indicated that Media could bring litigation in the United States absent a deal on terms satisfactory to Mr Price – he may well have made good on his indication but for the judgment from the district judge and the present appeal.

“I think he did intend to put pressure on Mr Bowen and a reasonable person in Mr Bowen’s shoes would have known it.”

Despite his finding on the Irish proceedings, HHJ Hacon said there was still “no clear error of principle” given the court’s wide discretion on costs and the requirement in CPR 44.4(3)(a)(i) that the court have regard to the conduct of the parties before as well as during the proceedings.

“This implies that the court can, and sometimes should, take into account conduct which has a bearing on the proceedings even though it takes place outside the four corners of the action before the court.

“That could include the threat of overseas litigation to attempt to pressurise a party with limited financial resources into an unfair settlement. It does include the suggested litigation against Mr Bowen in the United States.

“I am not entirely sure that I would have made the same order as the district judge, but I do not believe that I should interfere with the decision that Media should pay Mr Bowen’s travelling costs of £164.10.”

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