Neutral Citation Number: [2017] EWHC 1916 (Ch)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building,
7 Rolls Building, Fetter Lane, London,
EC4A 1NL

Date: Monday, 12 June 2017

BEFORE:

MR JUSTICE BIRSS

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BETWEEN:
	Case  No:  HC-2017-000008
		
	VICTOR LILLEY	Claimant	
	
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	FINANCIAL TIMES LTD	Defendants	
	
And BETWEEN
		
	Case No:  HC-2017-000011
		
	VICTOR LILLEY	Claimant	
	
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	THE CHARTERED INSTITUTE OF PROCUREMENT AND SUPPLY	Defendants	
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Digital Transcript of Wordwave International Ltd trading as DTI
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The Claimant did not attend and was not represented
MR S CARTER appeared on behalf of the Defendant in CH-2017-000008
MS A KNIGHT appeared on behalf of the Defendant in CH-2017-000011
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Judgment
1.	MR JUSTICE BIRSS:  I have before me a number of applications in two closely related actions.  Both are brought by Mr Victor Lilley.  One is against the Chartered Institute of Procurement of Supply (that is the one with the action number ending in 11) and the other is against Financial Times Ltd (that is the action ending with a number 8).  Both claims were issued in January of 2017.  They are brought on essentially the same bases as previous actions brought by Mr Lilley, including Lilley v Chartered Institute of Management Accountants [2013] EWHC 1354 (Ch).  That was dealt with in a judgment of Roth J on 15 March 2013.  There is also a case called Lilley v DMG Events [2014] EWHC 610.  That was dealt with by HHJ Hacon in the Intellectual Property Enterprise Court.  Then other claims brought by Mr Lilley against Euromoney Institutional Investor, again the Chartered Institute of Management Accountants (CIMA) I have mentioned, and Aspermont were dealt with in a judgment of mine in 2014 ([2014] EWHC 2364 (Ch)).  

2.	All of these claims including the two now before me have the same basic structure.  Mr Lilley was an author of articles which appeared in magazines in the 1990s.  He was paid or he had a company that was paid for that work.  The amount paid for those articles varies, but it was usually somewhere between about a hundred and two or three hundred pounds for the article.  The article appeared in the periodical on one occasion usually.  Possibly it was a monthly periodical.  Subsequently (many years subsequently in many cases) the article has appeared on the internet because the various periodicals in question have been put onto internet via library type websites.  

3.	Mr Lilley claims that that act is an act of infringement of his copyright. I should say whether the copyright belongs to him or his company is a detail which on some occasions matters, but in 2012 he took an assignment personally from the company of his copyright.  I will return to that.  

4.	But the articles appear and are available on various websites.  In this case the library websites are run by LexisNexis and ProQuest.  

5.	The singular feature of Mr Lilley’s claims is the gigantic sums of money which he claims are due as damages for the copyright infringement.  Against the Chartered Institute of Procurement of Supply (“CIPS”) he makes a claim for £59 million.  That case involves one article.  The claims against the Financial Times relate to two articles, both of which appeared in a journal called The Banker in the early 1990s, and in that Mr Lilley claims something of the order of £272 million or possibly £276 million damages.  

6.	The calculations as in previous cases (and I refer to those previous judgments) all work in essentially the same way.  Mr Lilley takes what he claims to be the original fee which he regards as a monthly sum and multiplies by the number of countries in the world and the number of months that these things have appeared and aggregates the sums up to these gigantic sums of money.  He claims that is the appropriate way to calculate damages based on the authority in General Tire v Firestone [1976] RPC 197.  

7.	Mr Lilley was the subject of a civil restraint order made by me in 2014 which expired two years later.  Mr Lilley was also made bankrupt as a result of an order made in 2015.  That arose among other things from a failure to pay costs ordered in those previous sets of proceedings.  Importantly, on 6 April 2016 Mr Registrar Baister made an order suspending the discharge of Mr Lilley’s bankruptcy because he had failed to comply with his obligations to the Official Receiver.  Therefore, although there is normally a two-year period for a bankruptcy, Mr Lilley remains an undischarged bankrupt.  Mr Lilley submits that the bankruptcy is void.  His reasons why it is void are familiar and the same kind of reasons that he gives for many of his complaints in these proceedings, that the courts are fraudulent, corrupt, behave unfairly and are committing acts of treason.  His allegations have been dealt with on a number of previous occasions, including by me earlier today. They are completely unfounded and outrageous.  He has no basis for this submission that those orders are void.  The orders are in effect.  The bankruptcy is not void. 

8.	The history of how we have arrived at the hearing today is as follows.  Mr Lilley, shortly after issuing these two claims, brought applications for a stay of both sets of proceedings pending (as he put it) compliance with the pre-action protocols.  In substance those applications are applications for disclosure from the defendants of documents relating to the claim and in particular for documents relating to the authorisation by those companies of the infringing acts.  A feature of these claims (and it applies to these two as much as it applies to previous ones) is that the defendants (in this case CIPS and the Financial Times) are not themselves responsible directly for the websites on which the articles have appeared, but they or, as if often the case, and this is true for the Financial Times, predecessor companies will have entered into agreements to put the content onto those websites.  It can often be said (and I will assume for this purpose in Mr Lilley’s favour) that those acts amount to an authorisation of the placing the articles onto the internet and therefore the communication to the public of the relevant articles as a result.  

9.	For the purpose of the rest of this judgment I will assume in Mr Lilley’s favour that he or his company did at the relevant time own the copyright claimed.  I will also assume that putting those articles on the internet is an infringement of that copyright.  That is a significant assumption in Mr Lilley’s favour.  It is not at all clear that he is right about it.  That would depend on a careful analysis of the original terms on which these articles were provided to the original publishers, which is very difficult to do based on the evidence that is now available, but I will make that assumption in Mr Lilley’s favour.  

10.	As I say, Mr Lilley in effect applied for pre-action disclosure, although that is not how he put it.  Mr Lilley had marked his application as one to be dealt with without a hearing and what then happened was the application in the CIPS case came before me on paper.  I dismissed it, giving brief reasons in the body of the order as is conventional for applications of that kind.  In those reasons I explained that I was not satisfied that the information was necessary for a fair resolution of the claim or that a stay was appropriate and also referred to the order of Registrar Baister.  The reasons also made the point that it was possible that these claims could not be properly brought by Mr Lilley at all on the basis that any cause of action he might have had previously would have vested in the Official Receiver or trustee in bankruptcy under the relevant sections of the Insolvency Act (sections 282 and 309 together).  

11.	The application against CIPS was dismissed as totally without merit.  As many applications by Mr Lilley are made, that application was made purporting to be (as Mr Lilley’s puts it) without prejudice to his allegation that the court is not impartial or independent and including allegations about me and the court staff, that we are committing fraud and treason and the like.  

12.	The next step was that Mr Lilley applied by an application on 20 April to set aside that order.  That came to me on 4 May.  I should say I cannot now remember and it does not matter when I became aware that the action against CIPS was not the only action that Mr Lilley had issued recently but in any case by that time I was aware of a parallel case against the Financial Times of the same structure.  

13.	I made two orders on 4 May, one in the CIPS action and one in the Financial Times proceedings, both of which were in similar form.  In the CIPS action I adjourned Mr Lilley’s application to set aside the order of 6 April to be heard at a hearing along with any other outstanding applications in the CIPS proceedings and along with any applications in the Financial Times proceedings.  In the Financial Times proceedings I made an order requiring any applications to be heard today.  By then I was also aware that on 15 April Mr Lilley had made the same kind of application for effectively pre-action disclosure in the Financial Times proceedings, and my order of 4 May in the Financial Times proceedings adjourned that application to be heard today with reasons.  I also refused to recuse myself.  

14.	After that Mr Lilley has made a number of unsuccessful attempts to have this matter not heard today and for me to recuse myself on the familiar bases.  I dealt with the question of recusal at the beginning.  Mr Lilley’s allegations are outrageous and unfounded and there is no proper basis on which I should recuse myself.  

15.	I also dealt with the question of whether it was appropriate to continue with these proceedings today in the absence of Mr Lilley, and I decided that they should continue and this judgment is given even though Mr Lilley had not attended.  Mr Lilley knew very well that his informal applications to have this matter relisted at a time for what he says is his convenience were unlikely to succeed.  They did not.

16.	This morning he sent in a large email with many attachments including a lengthy skeleton argument dealing with the hearing today, at least headed “In the CIPS matter”.

17.	As far as I am aware, Mr Lilley has not filed a skeleton argument dealing with the Financial Times matter today.  I say “as far as I am aware” because if I stack up the bundles in these two proceedings, they come to a pile about three feet high of paper simply dealing with these two matters.  It is possible that I have missed a skeleton from Mr Lilley relating to the Financial Times.  However having read as much of the material is it is possible to digest, I am confident that I have a clear understanding of the position Mr Lilley wishes to adopt on these applications and what he wishes to say.  It is no injustice to Mr Lilley to deal with these matters in this way.

18.	Turning to the merits of what is before me, the Financial Times apply for a summary judgment or a strike out of these proceedings (that is an application dated 4 May), essentially on three grounds, although Mr Carter makes reference to the fact that there could be other bases on which an application of this kind was brought.  Two grounds are on the basis that the claim pleaded has no reasonable grounds for being brought, one on the footing that it is time-barred under the Limitation Act, and second on the basis that Mr Lilley has no standing because of his bankruptcy.  

19.	The third basis is that the Particulars of Claim are an abuse of process on the Jameel basis since the claim is “not worth the candle”, as it is put in the cases on that point.  In other words, the total amount of conceivable money which Mr Lilley could obtain in this claim, even making all allowances in his favour, is so small that this sort of proceeding is nothing other than an abuse of the process.  

20.	Ms Knight who appears for CIPS also applies to strike out or for summary judgment in her client’s favour of these proceedings.  She applies on similar grounds.  Her client’s position is that their claim would also be time-barred under the Limitation Act but they do not apply on that basis.  They have not produced, in the witness statement of Mr O’Flynn for the CIPS, evidence directed to that.  CIPS submit that there is no standing to bring this claim due to the bankruptcy, that it is abusive on the Jameel basis but also that the claim itself is an abuse of process on more general grounds.  Those more general grounds are (i) the absurd nature of the written pleadings are themselves an abuse, and (ii) that this proceeding is brought for inappropriate collateral purposes (a) as a vehicle either for challenging the earlier decision of Roth J in Lilley v CIMA case but also (b) for making unfounded allegations against the court staff and the judiciary of fraud and treason and other such allegations.  
21.	First I will deal with Mr Carter’s application for summary judgment or to strike out.  This is on the basis that the claim is time-barred under the Limitation Act.  The Limitation Act as it applies to Mr Lilley’s claim was dealt with comprehensively by Roth J in Lilley v CIMA.  Mr Carter submits that on the facts of this case there is no difference.  The critical piece of information that one needs to know is when conceivably could it be said that the defendant authorised the acts which are alleged to infringe. 
22.	Mr Connor, who is the solicitor for the Financial Times, puts in evidence about the contracts whereby the relevant articles were provided to ProQuest and LexisNexis.  He sets out the dates that the material in the Banker magazine was provided to LexisNexis by the company that was the predecessor company of the defendant (Financial Times Business Ltd).  The material went to LexisNexis in 2004 and to ProQuest in 2007.  Therefore that would be the first time the authorisation took place.  When Financial Times Business Ltd was replaced by Financial Times Ltd, the defendant, the contracts were amended to deal with the fact that there was a new company,  Those dates were 2010 for LexisNexis and 2008 for ProQuest.  
23.	So, Mr Carter submits there is no basis for doubting those facts in this case and Mr Carter says I should take them as being correct.  On the basis of these dates the authorisations must have taken place more than six years before the claim was issued.  Mr Carter refers to MCA Records Inc v Charly Records Ltd [2001] EWCA Civ 1923 and the judgment of Rimer LJ at 178 to 179, in particular the end of 179.  When the alleged infringing act was the act of authorisation under section 16(2) of the 1988 Copyright, Designs and Patents Act, that act is complete once the authorisation is complete.  The infringing act does not continue even if the acts authorised happened continuously after that.  In this case the acts authorised are putting these articles onto the internet or making them available on the internet.  On that basis even though the articles were available less than six years before the claim was commenced, the relevant acts of the defendant were more than six years before the claim form and the claim is statute-barred.  
24.	In my judgment Mr Carter’s submission is correct.  I remind myself that Mr Lilley has not appeared.   All the same, it is possible for me at this stage to deal with the issue summarily.  I find that there is no real prospect of establishing that the authorisations took place on different dates.  On that footing the authorisations are more than the six years before the claim form was issued.  Therefore at first sight the claim is statute barred.

25.	However, what Mr Lilley would say and does say is that the Limitation Act should be disapplied for various reasons to do with mistake, fraud and breach of duty.  Those allegations are the ones which were addressed by Roth J in Lilley v CIMA.  There is no need for me to extend the length of this judgment by addressing those points again because nothing Mr Lilley has said in the voluminous papers before me on this application on this case is any different in substance from what was said before Roth J.  Roth J found that there was no good reason to disapply the Limitation Act.  I do so as well.  
26.	In saying that, I recognise that Mr Lilley contends that the judgment of Roth J is wrong or should be set aside.  As far as I remember, Mr Lilley sought permission to appeal the decision of Roth J, and that application was dismissed.  I am fairly sure that is right and I will check with counsel if they think I have made a mistake.  In any event, what I do recall is that Mr Lilley has made a number of attempts subsequently to set aside or vary the order of Roth J on the same basis and they have all been rejected.  There is no good reason why I should set aside or vary Roth J’s order in this case.  Indeed, to do so would itself be an abuse of process.  
27.	So Mr Lilley’s claim is statute-barred under the Limitation Act and should be struck out for that reason.  
28.	I turn to the next issue, which is common to both the Financial Times and to the Charted Institute of Procurement and Supply.  That is the effect of the bankruptcy.  As I mentioned earlier, Mr Lilley took an assignment of the copyright from Lilley Information Systems Ltd in 2012.  That is a necessary component in the claims which he brings.  That means that by the time the bankruptcy order was made the copyright on which this claim is based was held personally by Mr Lilley.  That means that on the operation of the Insolvency Act, the copyright claim vested in the trustee or Official Receiver on the day of the bankruptcy order was made.  I note in that respect the note of the Official Receiver dated 31 May 2017, which was written as a result of my reference in the orders of 4 May to the Official Receiver, which explains that as far as the Official Receiver is concerned any copyright owned by Mr Lilley on the date of the bankruptcy order, which was 9 April 2015, would have vested in the trustee and that he is not able to pursue claims under this cause of action unless the trustee was to assign ownership of the copyright, which has not taken place.  I also note that the Official Receiver has explained that Mr Lilley has not a complied with his obligations to the Official Receiver and his discharge remains suspended.

29.	Both the FT and CIPS submit that I should strike out the claim on the abuse of process ground.  This is on the basis that the bringing of the action was an abuse of process because Mr Lilley must have known when he issued the action that the claim vested in the trustee.  The principles are summarised in Pathania v Adedeji [2014] EWCA Civ 681 in the Court of Appeal and the judgment of Floyd LJ as follows:

“15. Where a bankrupt is commencing or pursuing a claim which he knows he does not have, the abuse of process in commencing or pursuing that claim is obvious. No claimant is entitled to sue on a right which he knows belongs to someone else. The abuse lies in knowingly pursuing a claim which, as presently constituted, is bound to fail. The abuse does, however, depend on actual knowledge of the lack of title to the cause of action, not on what he or she ought to have known.

16. Nevertheless, where an action is commenced or continued after the cause of action has vested in a trustee in bankruptcy, the action does not abate and the position is capable of being regularised by the joinder of the trustee or by the taking of an assignment from him. Whether the court will permit that to happen will involve an exercise of discretion. It will be necessary to have regard to the interests of those likely to be affected, including the creditors in the bankruptcy. The court would be likely to stay the action until the position in the bankruptcy is clarified.”

30.	Therefore I should not strike out this action simply on that ground that Mr Lilley brought it when the claim was vested in the trustee because, as the judgment of the Court of Appeal makes clear, the right thing to do in such a case is not to strike it out but to stay the action on that basis, whereas the action can be struck out as an abuse if it was brought with actual knowledge of the lack of title.  
31.	Proving whether Mr Lilley actually knew, before the action was brought, that it was an abuse is not straightforward.  It is quite clear that after the claims were issued, Mr Lilley now knows that the cause of action vested in the trustee.  That can be seen from various letter which were written by Mr Lilley after that date.  I am bound to say I think it is highly likely that Mr Lilley did know before he brought his claims that the causes action vested in the trustee, but there is no evidence before me other than an inference.   Given that abuse of process depends on the difference between actual knowledge of a lack of title as opposed to imputed, constructive knowledge, I am not satisfied that there is enough material to which my attention has been drawn to show that Mr Lilley did know, before he issued these proceedings, that he had no title to bring them.  
32.	Accordingly, in relation to the second ground it seems to me the appropriate thing to do if I was permitting the proceedings to continue would be to stay them.  In relation to the FT that does not apply because I am going to strike the proceedings out under the Limitation Act.  However so far, in relation to the CIPS matter, the order I would make, subject to anything I do subsequently, would be to stay those proceedings until the position in the bankruptcy is resolved one way or the other.

33.	I then turn to the third application, the third basis for striking out these claims, which is the Jameel basis.  There is some evidence from the Financial Times from Mr Connor as to the sums which the Financial Times, the defendant, received from the websites for The Banker publication as it appeared on those websites.  Then Mr Connor does a calculation based on the number of articles that were on The Banker website and does a simple bit of mathematics to come up with a number for how much one could possibly attribute to Mr Lilley’s article.  The sum comes to about £10 per year for one of the websites and about £1 per year for the other website.  So it is said even if the claims were not barred by the Limitation Act the total damage is likely to be of the order of a few hundred pounds.  That is because the damage is likely to be similar to the sums which were earned by the Financial Times from the existence of those articles.  I should make it clear as (Mr Connor makes it clear) that that does not mean that those articles have been viewed on any substantial scale or have been viewed by anyone or that any money has been earned from them.  It is simply a way of trying to gauge how much the claim could be for.

34.	So it is said that on the Jameel basis the cost and complexity of these proceedings is not worth that sum of damages, particularly when (and this is an important point in my judgment) the Financial times have made an open offer to Mr Lilley for the sum of £500 in damages, which Mr Lilley has received in January and has ignored.  These proceedings have now been going on for nearly five or six months since then.  

35.	Mr Lilley says that his claim is worth far more than that.  However even approached on the basis of the way the Financial Times have valued the claim, Mr Lilley could say that to focus on how much the Financial Times may have earned from his articles is not a fair way of assessing his damages.  I will return to this point if I need to. 

36.	Ms Knight’s basis for striking out this action is slightly different.  She does maintain the Jameel basis but on a more broad-brush basis.  Her clients have not produced evidence dealing with the finances in the way that the Financial Times.  

37.	But Ms Knight’s other application is on the basis that the manner in which Mr Lilley pursues this claim is itself an abuse of the process.  She refers to the absurd Particulars of Claim which running to hundreds of pages.  The so-called “provisional” Particulars of Claim relating to the Financial Times runs to 168 pages and the one relating to the Chartered Institute of Procurement and Supply is a similar length.  The documents are virtually incomprehensible.  They contain Mr Lilley’s absurd damages calculations.  Whatever the value of these claims might really be it is manifest, as Mr Lilley has been told on a number of occasions in the past, that the possible damages are nothing like the sums he is claiming.  The Particulars contain unfounded allegations of misconduct by the Court staff but I am not sure the Particulars themselves contain allegations of fraud.  Nevertheless if I consider the documents Mr Lilley files at court in support of these claims and the applications he wishes to bring as part of them, those documents certainly do contain numerous outrageous allegations of fraud, treason and the like.  

38.	Ms Knight submits that this amounts to an abuse of the process and that I should strike out the action on that basis and also on the basis that the case is being used as a vehicle both for challenging the decision of Roth J and for making these absurd allegations.  

39.	It is a strong thing to strike out proceedings on abuse grounds on this basis.  Nevertheless there comes a point when the court is entitled to stand back and protect its own process and staff and the defendants from this kind of conduct.  Mr Lilley is a serial vexatious litigant.   He has been given opportunities in the past to serve concise pleadings which focus on the issues.  The issues in this case are not very complicated.  They can be articulated in a fairly short way, as has been shown in previous judgments both from me and from other judges.  That is also shown from my experience of hearing Mr Lilley before.  I know that Mr Lilley himself can articulate his position in a fairly concise way.  These documents are calculated to make it impossible to deal with his claim and his applications.

40.	I was referred to the decision of Leggatt J in Tchenguiz & Ors v Thornton UK LLP & Ors [2015] EWHC 405 (Comm) where he says as follows:
“Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.”
41.	I respectfully agree.  Mr Lilley’s Particulars of Claim and the other documents he serves in these proceedings do not come close to complying with that.  
42.	If this was the first time Mr Lilley had produced documents of this kind, then one might take a different view.  However this is not the first or even the second time Mr Lilley has produced these documents and, as Ms Knight pointed out, in the previous cases Mr Lilley was given the opportunity to reorganise his claim and re-plead it in a concise way as a claim for a realistic sum of money.  He did not do so then.  It is manifest that he is not going to do so in this case.  
43.	I have considered whether nevertheless I should give Mr Lilley a further opportunity to do that, and I have decided that there is no purpose in doing so.  There is no prospect that he would comply with an order like that if I made it.  In my judgment the court can and should strike out these proceedings in relation to the Chartered Institute of Procurement and Supply, on the basis that the manner in which they are being brought, having regard to the nature and content of the Particulars of Claim and the other documents served in court by the claimant, make the proceedings an abuse of process.
44.	Although the Financial Times did not put their case this way, in my judgment the same factors are equally applicable to that case and I should strike out the claim against the FT on the same basis.  

45.	I do not have to focus specifically on the Jameel basis for striking out these proceedings.  All the same I will say that I have taken the following into account.  Whether the sums of money to which Mr Lilley might conceivably be entitled are as low as is said by the Financial Times (and I am not expressing a view that they are not) or even somewhat higher, they are still nothing like what is claimed, nor are they anything like what would be worth the enormous cost and effort required to grapple with the proceedings in the manner that this claimant has brought them.  A copyright claim which might be worth a hundred or two hundred pounds, or even conceivably a thousand or two thousand or even maybe a bit more, would be in the small claims track.  It would be an absurdity for a court to have to deal with statements of case of the kind produced by Mr Lilley in order to deal with a claim of that value.  

46.	So the claims are an abuse of the process and I will strike out these proceedings.

47.	I have not dealt with all the applications yet.  The other thing I need to deal with is the application by Mr Lilley to set aside my order of 6 April refusing his application for pre-action disclosure against CIPS.  All I will say is that there is no possible basis on which that should be set that aside.  If anything, Mr Lilley should have appealed that order of he was dissatisfied with it, and he has not done so.  He is wrong to say that there were no reasons given in the order of 6 April.  There were given, and they have already been mentioned in this judgment.  

48.	I will also dismiss Mr Lilley’s application against the Financial Times for the same pre action disclosure relief, essentially for the same reasons that I gave when I dismissed the application against the Chartered Institute.  There is no good reason why that disclosure should be given at this stage, and there is a problem with the standing of Mr Lilley given his bankruptcy.  That is quite sufficient.  

49.	Finally, in terms of applications brought before me (that is, the application to set aside in the CIPS and the application for disclosure against the Financial Times), they are both totally without merit and should be dismissed on that basis for all the reasons I have explained.  Moreover, Mr Lilley’s claims against the defendants, both FT and CIPS  are totally without merit and should be characterised as such.  

50.	The significance of that has to do with civil restraint orders which both parties are asking me to make.  

51.	I am not certain that I have dealt with everything which is formally open to be dealt with at this hearing.  It is simply impossible to be sure that I have dealt with every conceivable issue that has been raised by Mr Lilley, but I have done my best.  A reasonable and fair-minded observer would be able to understand the reasons why Mr Lilley has failed today.  That is enough.