Additional damages in contempt proceedings – Case Digest – Court of Appeal – Phonographic Performance Limited v Ellis

Phonographic Performance Limited (PPL) obtained an injunction against the Defendant preventing him from playing (or authorising the playing of) PPL’s  sound recordings in public without PPL’s licence.  Notwithstanding the injunction, the infringements continued and PPL issued an application in which it claimed that the Defendant was in contempt of court.

At the committal hearing, Mr Justice Birss committed the Defendant to prison for two months (suspended for two years) and also ordered him to pay damages for copyright infringement and PPL’s costs.

PPL had also claimed additional damages pursuant to s.97(2) of the Copyright, Designs and Patents Act 1988.  However, this claim was dismissed.  The judge noted that there was authority that it was inappropriate to fine a defendant at the same time as imposing a prison sentence for contempt and held that the same principle should apply in respect of additional damages.

On appeal PPL successfully challenged the principle relied upon by the judge.

Giving the leading judgment in the appeal, Lord Justice Lewison first considered the nature of additional damages. He held that the damages awarded under s.97(2) fell into their own category of statutory damages and depending on the circumstance, could either by exemplary (and therefore punitive), restitutionary, or a combination of both. Due to the potentially punitive elements, the judge was entitled to consider the analogy to a fine, but ultimately additional damages were not the same.

The Court of Appeal also noted longstanding authority that there was no objection in principle to the combination of a fine and a custodial sentence in contempt proceedings.

On that basis the Court of Appeal concluded that the judge had erred and proceed on a flawed basis. However, whilst accepting that infringement in breach of a court order will usually be sufficient to justify an award of additional damages, this is not automatic and any award is always subject to the court’s discretion. Exercising that discretion in the circumstances of this case, the Court of Appeal declined to make any further award of additional damages.

GSC’s IP & Media Department, acted for PPL, the claimant and appellant in this case.

A copy of judgement can be found here.