June 4, 2018

The claimant, Phonographic Performance Ltd, issued proceedings against the defendant, Abimbola Balgun t/a Mama Africa, claiming that Mr Balgun had played sound recordings at his restaurant, which infringed its copyright in relation to two songs.

PPL applied for summary judgment.  Mr Balgun did not attend the hearing and summary judgement was granted against him.  Mr Balgun subsequently applied to have the judgment set aside, but the Master declined, concluding that, applying the criteria set out in CPR 39.3(5), Mr Balgun had: i) not acted promptly; ii) did not have a good explanation for not attending the initial summary judgment hearing; and iii) did not have a defence to the claim.

Mr Balgun appealed the Master’s decision not to set aside the judgment.

Miss Penelope Reed QC found that the Master had not erred in his approach as the decision was a discretionary one and he had not applied CPR 39.3(5) too rigidly.

On the facts, Miss Reed QC also found that the Master had been correct to find that Mr Balgun had not acted promptly.

As for Mr Balgun’s explanation for not attending the hearing, Miss Reed QC said that the Master had not perhaps taken sufficient notice of the fact that Mr Balgun had been engaged in a hearing of family proceedings on the date in question.  However, it was not clear to Miss Reed QC why Mr Balgun had not informed the court in advance that he could not attend on the date fixed for the summary judgment application.

As for whether Mr Balgun’s defence had any real prospect of success, Mr Balgun argued that by permitting DJ’s to play music in his restaurant, he had not authorised them to play music that infringed copyright.

Miss Reed QC found that it is the authorisation of the playing of music in public that is the relevant act and not the authorisation of specific songs that infringe the copyright.  Mr Balgun argued that this decision was at odds with the decision in CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] 1 AC 1013, but Miss Reed QC said that Amstrad in that case had no control over the use to which its equipment was put.  Mr Balgun, on the other hand, had complete control over the playing of music in his premises.  There were therefore no real prospects that Mr Balgun’s defence would succeed.  The application was dismissed.  (Phonographic Performance Ltd v Mr Balgun t/a Mama Africa [2018] EWHC 1327 (Ch) (16 May 2018) — the judgment is available on the Lawtel website).