MR. JUSTICE SNOWDEN:
Introduction
- This is a case management conference in a claim relating to a TV gameshow format called "Minute Winner" which was devised and committed to writing by 2005 by Mr Derek Banner. Mr. Banner is a Danish citizen, and the Claimant company, Banner Universal Motion Pictures Limited ("BUMP"), is an English company recently formed by him which contends that it is entitled to pursue claims as assignee of the rights in relation to the format.
- BUMP claims that the document in which the Minute Winner format is contained ("the Minute Winner Document") is a dramatic work in which UK copyright subsists. It also alleges that the information in the Minute Winner Document was disclosed by Mr. Banner to the Second Defendant ("Friday TV"), which is a Swedish television production company, at a meeting in Stockholm on 11 November 2005 in circumstances that gave rise to an obligation of confidence upon Friday TV. It is alleged that the information was subsequently misused in the UK and elsewhere by the Defendants. In particular, it is said that the Defendants were involved in the broadcast by ITV2 in England between September to November 2011 of eight episodes of a game show called "Minute to Win It" which it is contended was derived in substantial part from the Minute Winner format, and that rights to exploit Minute to Win It gameshows have also been sold by the Defendants in over 70 countries worldwide. BUMP's claim is for infringement of copyright, breach of confidence and passing off.
- The claim is resisted by the Defendants. Friday TV has applied for a declaration as to non-jurisdiction pursuant to CPR Part 11 in relation to the claims made against it, and all three Defendants have applied for summary determination of the claim and/or for it to be struck out or stayed, inter alia on the grounds (i) that the contents of the Minute Winner Document did not qualify for protection as a copyright work; (ii) that BUMP is estopped from bringing the claim for breach of confidence because the Swedish Courts have already finally determined that neither the Minute Winner Document nor the information in it were disclosed at the meeting in Stockholm, and that such information was not of a type that gave rise to any claim against Friday TV for infringement of Swedish trade secrets law; and (iii) that the claim for passing off must fail because Mr. Banner had no goodwill in the Minute Winner format in the UK.
- For its part, BUMP has applied for permission to add or substitute three new defendants to the claim as joint tortfeasors in reliance on further information received from the existing defendants as to the corporate entities involved in the development and licensing of Minute to Win It. BUMP wishes to substitute Shine TV Limited ("Shine TV") which is an English company in place of the First Defendant ("Endemol Shine Group"); it wishes to substitute Universal Media Studios International Limited ("UMS"), which is also an English company, in place of the Third Defendant ("NBC"); and it wishes to add Universal City Studios Production LLP ("UCSP"), a Delaware limited liability partnership as the Fourth Defendant and to have permission to serve UCSP out of the jurisdiction.
- BUMP also seeks to make amendments to its Particulars of Claim, and further amendments were advanced in draft by Ms. Heal during the course of the hearing. As is conventional, I shall address the position on the basis of those draft amendments, since if a case can be saved by a timely amendment it should ordinarily be allowed to remain on foot.
The Minute Winner Document
- BUMP claims that in or around 2003, Mr. Banner developed a format for a television game show which was set out in a short document entitled, "Minute Winner". The title page to the Minute Winner Document describes the format as follows,
"MINUTE WINNER
Mini-format Game show
Daily or weekly show.
Or short one minute between main programs.
Morning, Evening or Afternoon program.
One minute, or 30 minutes with several winnings."
- The document then continues,
"SYNOPSIS
Minute Winner is a television program in which people are given one minute to win something.
WHERE?
The program takes place in a studio (and in location: street, shopping mall or unexpected at people's homes). The program is cheaper to produce on location, as it only requires a cameraman, soundman, a host and a stopwatch
PRIZES
The prizes are sponsored by firms/companies in exchange with advertisements during the program."
- Under the heading "EXAMPLES OF WHAT PEOPLE CAN WIN" there are then four examples given.
"AT A BICYCLE SHOP
The host randomly stops a customer inside the shop and offers her/him a set of 10-20 keys. The customer then has one minute to find the right key that would open the lock of a chosen brand new bicycle. If the customer succeeds she/he wins the bicycle.
ON THE STREET
A brand new car is parked on the street. The host randomly stops a by-passer and gives her/him a set of car keys. Within one minute the by-passer has to find the right key and open the car. The by-passer wins the brand new car if she/he succeeds before one minute is gone.
PRIVATE AT SOMEONE'S HOME
The host starts by mentioning: "Today we're going to surprise someone at Fifth Avenue!" Then afterwards we see him knock at a door that he chooses at random. And when someone opens the host says: "Hello, we're from the television program called Minute Winner. Do you have one minute to win a TV set?" Of course the person says yes. Who wouldn't want to win a brand new TV? The host then gives the person one minute to try to turn on the TV and code in two-three channels. The person wins the TV set if she/he succeeds.
IN A CLOTHES SHOP
The host stops a customer at random inside the shop and gives her/him one minute to choose a set of clothes, go to the dressing room and try them on. If the clothes fit and the person has put them all [on] in one minute she /he wins the clothes."
The Minute Winner Document then adds,
"The program can also take place at different various places: at a paint shop, fish shop, butcher shop, shoe shop, wood shop, dentist, candy shop etc."
- Various reasons are then given as to why people might want to see the program. Among these is the statement,
"The combination of luck and pure coincidence is a factor that would make people wish that one day they could be stopped on the street and be given a chance to win something on television."
- Under the heading "WHEN CAN THE PROGRAM BE SHOWN?" it is suggested that,
"The program can be shown daily (optional) as a one-minute fill in, before or after a main program. Minute Winner can also be shown either as a morning program, afternoon program or evening access prime time program."
- At the end of the Minute Winner Document, in very small type, are the words,
"Concept created by Derek Banner/Bump Productions. Copyright 2003, all rights reserved. This format is protected under the international copyright law and intellectual property protection. It shall not be transmitted, exploited, copied produced, used, disclosed or distributed, in part or in its entirety, without permission from its owner."
Factual Background
- On 11 November 2005, Mr Banner had a meeting in Stockholm with the principals of Friday TV, Jock Millgardh and Matthias Olsson. Mr Banner claims that at that meeting he handed Mr Millgardh and Mr Olsson a non-disclosure agreement (NDA) relating specifically to Minute Winner together with NDAs for several other television show formats. Mr. Banner accepts that Mr Millgardh and Mr. Olsson told him that they would not sign any NDAs, but he claims that they acknowledged that everything which was said or disclosed at the meeting would nonetheless be in confidence. Mr. Banner then says that he pitched his idea for Minute Winner, including the catch-phrase, "You have a minute to win it", at the meeting, and that he made some further suggestions in relation to the show, e.g. in relation to digital media and a Christmas edition.
- In his evidence, Mr Millgardh says that Minute Winner was not mentioned at the meeting on 11 November 2005, the purpose of which was to discuss another proposed TV programme devised by Mr. Banner called Celebrity Birthday. He also says that Mr Banner put a NDA to him and Mr Olsson but they told Mr Banner that they did not enter into such agreements and did not do so. Mr. Millgardh produced a note of the meeting which is consistent with his account, and Friday TV did subsequently enter into an agreement with Mr Banner in relation to the development of Celebrity Birthday.
- Ten days after the meeting, Mr Banner sent an unsolicited email to Mr Millgardh on 21 November 2005 which said, "Nice speaking to you. Attached are 10 more of our new formats". One of these was Minute Winner and attached to the email was a version of the Minute Winner Document. On its face, that email is not consistent with the suggestion that Mr Banner had already pitched the Minute Winner format at the face-to-face meeting ten days earlier.
- Nothing else of any relevance occurred for a number of years. In 2009, Friday TV's holding company was acquired by Shine Limited, a well-known TV production company, and in the same year, Friday TV sold the idea for a new game show to Realand Productions LLC, a part of the NBC Universal group. According to the Defendants' evidence, while being developed in 2008, this show had the working title Take the Money and Run and was for an entertainment show in which a contestant could win $5 million by completing ten games in a row in a studio. That idea was renamed Perfect 10 and then Don't Blow It until, in December 2009, the name Minute to Win It was adopted.
- Minute to Win It was first broadcast in the US on 14 March 2010. It has since been broadcast in many different countries throughout the world. So far as the UK is concerned, by an agreement dated 24 November 2009, UCSP granted an option to Shine Limited to develop the format. By an agreement dated 26 May 2011, Shine TV, a subsidiary of Shine Limited, to whom the benefit of the option had been transferred, agreed to deliver eight 60 minute episodes of the show to ITV for broadcast on ITV2. This was the first and only series that was broadcast in the UK later in 2011.
- Mr Banner claims that he first became aware of Minute to Win It when he saw a trailer for the Danish version (entitled Det Perfekte Minut) in September 2011. Mr Banner says that he formed the view that his idea for Minute Winner had been copied or misused. As a result, in 2012 Mr Banner (described in the court documents as a sole trader under the name Bump Productions) commenced an action against Friday TV in the Stockholm District Court (case No. T 15623-12). By this claim, Mr Banner asserted that Friday TV had infringed section 6 of the Swedish Trade Secrets Act (SFS 1990: 409) which provides that a person who intentionally or negligently uses or discloses a trader's trade secret which he learned in confidence in conjunction with a business relationship with such trader, shall compensate the trader for the damage suffered as a result of his action.
- By a written judgment dated 3 March 2014, the Stockholm District Court dismissed the claim and Mr Banner was ordered to pay Friday TV SEK 1,110,800 in costs. The District Court identified the first issue that it had to decide was what information Friday TV had received. The court concluded,
"It cannot be otherwise than inferred from studying the case that [Friday TV] had been given part of the information on Minute Winner and only in the form of … an e-mail with attached document."
That was plainly a finding that, contrary to Mr. Banner's case, the Minute Winner concept had not been pitched at the meeting on 11 November 2005, but had only been communicated to Friday TV in the email of 21 November 2005.
- The District Court then addressed the question of whether the information given to Friday TV could be considered a trade secret under the Swedish Trade Secrets Act. The court rejected the submission that the information in the Minute Winner Document could be a trade secret as defined in the Swedish Act. The court held that the information was not, objectively, of sufficient quality to enable the court to conclude that its disclosure would be likely to cause harm to Mr. Banner in terms of competition. The District Court stated,
"It is not disputed that a program format in and of itself can be a trade secret. The only real quality information requirement in dispute is that its disclosure shall be liable to cause harm to BUMP from competition. [Friday TV] has denied that this would be the case, claiming that the information was of a general nature.
The element "damage in terms of competition" severely limits the very expansive meaning of the concept of a trade secret that other elements of the definition imply. The requirement is objective, without regard to what the trader thinks. Only information that is worthy of protection in an objective sense is covered by the scope of the law. Information of a general nature is not referred to. Nor is information that has not reached some level of detail…
The court finds that the information in [the Minute Winner Document] may be considered to be a relatively simple core idea of a program format. This idea is described in such a general way that the description cannot be considered worthy of protection in the legal sense, i.e. the information cannot be considered to be of such quality that its disclosure is likely to cause damage to BUMP in terms of competition …By this observation it follows that the information does not constitute a trade secret under section 1 of the Act. In view of the foregoing, BUMP's claims are unfounded."
- Mr Banner applied to the Swedish Court of Appeal for permission to appeal the District Court's decision. That application was dismissed on 30 June 2014. Mr Banner applied to the Swedish Supreme Court for permission to appeal against the Court of Appeal's decision. That application was also dismissed on 29 July 2014. Mr. Banner was ordered to pay costs to Friday TV.
- On 22 August 2014, Mr Banner changed tack. He issued a request to the Stockholm District Court to issue a summons against Friday TV and others in respect of trademark infringement, title protection infringement, and copyright infringement in relation to Minute Winner. Mr Banner was ordered to provide better particulars of such claims which he did on 16 October 2014. On 5 November 2014, the Swedish District Court refused the request for a summons to be issued.
- Following the failure of the Swedish actions, Mr Banner has not paid any part of the costs ordered against him but has purported to assign his rights in relation to Minute Winner to BUMP (which he incorporated on 16 July 2015). BUMP then commenced the instant claim in England in May 2016, serving it on 1 July 2016.
The law in relation to applications for summary judgment or strike out
- A court may strike out a claim pursuant to CPR 3.4 if it appears to the court that the statement of case discloses no reasonable grounds for bringing the claim or it is an abuse of the court's process. Grounds for summary judgment in CPR 24.2 are that the claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial.
- The approach of the Court on an application for summary determination is well known. It was summarised by Lewison J in EasyAir Ltd v Opal Telecom Ltd [2009] EWHC 339 Ch at [15], in a formulation approved by the Court of Appeal in A.C. Ward Ltd v Catlin Fire Ltd [2009] EWCA Civ 1098, [2010] Lloyd's Rep IR 301 at [24] as follows:
"(1) The court must consider whether the defendant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91.
(2) A "realistic" defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ472 at [8].
(3) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman.
(4) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10].
(5) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550.
(6) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63.
(7) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."
Copyright
The law and the rival contentions
- BUMP alleges that copyright subsists in the Minute Winner Document as an original dramatic work within the meaning of sections 1(1)(a) and 3(1) of the Copyright Designs and Patents Act 1988 ("CDPA"). It is not alleged to be a literary work, which, under the CDPA, is a mutually exclusive category of copyright work.
- The requirement of originality under the CDPA is that the work must be an expression of the author's own intellectual creation: see, e.g., SAS Institute Inc. v World Programming Ltd [2014] RPC 8 at paras 29 to 37. This does not, however, mean that every constituent aspect of a work must be original. The work must be taken as a whole, and can include parts that are neither novel nor ingenious. So, in Ladbroke v William Hill [1964] 1 WLR 273 at page 277, Lord Reid stated:
"A wrong result can easily be reached if one begins by dissecting the plaintiff's work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because fragments taken separately would not be copyright, therefore the whole cannot be. Indeed, it has often been recognised that if sufficient skill and judgment have been exercised in devising the arrangements of the whole work, that can be an important or even decisive element in deciding whether the work as a whole is protected by copyright."
- The expression "dramatic work" is not defined in the CDPA (save that it is expressed to include a work of dance or mime). However, in Norowzian v Arks Limited (No 2) [2000] EMLR 67 at page 73, Nourse LJ held that the expression should be given its natural and ordinary meaning. He thought – distilling earlier authorities - that a dramatic work was,
"a work of action, with or without words or music, which is capable of being performed before an audience."
- According to this meaning, each recorded episode of a television game show or quiz show would be likely itself to qualify for copyright protection as a dramatic work, so that copyright would be infringed if someone else staged a re-enactment of the same episode. But that is not the issue in this case, since no episodes of Minute Winner were ever actually produced. The issue in this case is whether what is usually referred to as the "format" of a television game show or quiz show is separately capable of being protected by the law of copyright. This is a question that has been considered in comparatively few cases.
- The leading authority – albeit not from this jurisdiction - is the decision of the Privy Council in Green v Broadcasting Corporation of New Zealand [1989] RPC 700. The case concerned a claim to copyright by the well-known entertainer, Hughie Green, to the format of the Opportunity Knocks television talent show of which he was the author, producer and compere. The claim to copyright was made both as a literary work and as a dramatic work - those two categories not being mutually exclusive under the relevant New Zealand statute.
- The claim for copyright as a literary work failed on the facts because no scripts for the show had actually been produced in evidence, and even though there was some evidence that some documents which might have qualified as scripts existed, it was wholly unclear what they contained. Lord Bridge indicated that in the absence of clear evidence as to what the scripts contained, the Privy Council could not differ from the inference drawn by Somers J in the New Zealand Court of Appeal that the scripts "did not themselves do more than express the general idea or concept of a talent quest."
- The claim to copyright as a dramatic work was also rejected both by the majority of the New Zealand Court of Appeal and by the Privy Council.
- In the Court of Appeal, [1989] RPC 469, the majority (Somers and Casey JJ) rejected the claim that the format of the Opportunity Knocks show was a dramatic work. Somers J held that such scripts as existed could not be a dramatic work because they could not be acted or performed, being "no more than a general scheme for a proposed entertainment"; and although Casey J referred to the debate in the US and UK over television formats, he concluded that he had strong reservations whether protection could exist under the New Zealand statute for "a basic concept underlying a series of changing dramatic works". He added that on the facts it was difficult to see,
"in what way the underlying idea has been distilled out and translated into an expression thereof in a material form sufficiently identifiable to be copied."
- The dissenting judge in the Court of Appeal, Gallen J, did think that it was possible for copyright to exist in a television format. He said, at page 491,
"Leaving aside for the moment the question of the existing form which must be established to satisfy the requirements of the Act, the initial question is whether or not an idea developed into an original continuing or repeated dramatic format could be the subject of copyright protection. If the combination of material upon which the person seeking protection relies has a recognisable framework or structure and that framework is such as to impose a shape upon the other constituent parts of the show produced within it, then I should not have thought it contrary to principle to regard it as an original literary or dramatic work for the purposes of [the New Zealand Copyright Act 1962]. I do not think that a musical work which provides for ad libitum cadenzas or ornamentation which may be left to the taste or ability of the individual performer, would be any the less subject to copyright. That would no doubt be at one end of the spectrum. At the other, it would be difficult to contend [that] a mere collection of unrelated features, even though some were repeated, could justify protection. That suggests that in the end the question is one of degree and it is a question which I think may be answered, at least for the purpose of this case, by considering whether or not there is a sufficient structure to be perceived in the series of shows."
(my emphasis)
- Gallen J then considered the supposedly distinctive features of the Opportunity Knocks show - the idea of a talent quest, the title, the use of catchphrases, the use of sponsors to introduce the contestants, and the use of a "clapometer" to gauge audience reaction. He thought that the idea, the title and the use of catchphrases were commonplace and of no particular significance. He did think that the use of sponsors and the clapometer were ideas "of some originality" but not, of themselves, "sufficient to stamp the programme with an originality as to bring it within the criteria necessary for protection." However, Gallen J observed that these factors were not relied upon individually but in combination, and he defined the relevant question as whether there was,
"a recognisable repeated structure made up of the catchphrases and devices which imposed some form upon the contestant's material?"
On the basis that the trial judge had referred to the "distinctive features" of the Opportunity Knocks show, Gallen J held that this test was satisfied.
- The Privy Council dismissed an appeal and rejected the claim to copyright. Lord Bridge stated,
The alternative formulation of the appellant's claim relies upon the "dramatic format" of "Opportunity Knocks", by which their Lordships understand is meant those characteristic features of the show which were repeated in each performance. These features were, in addition to the title, the use of the catch phrases "for [name of competitor] opportunity knocks," "this is your show folks, and I do mean you," and "make up your mind time," the use of a device called a "clapometer" to measure audience reaction to competitors' performances and the use of sponsors to introduce competitors. It was this formulation which found favour with Gallen J.
It is stretching the original use of the word "format" a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were "structure" or "package". This difficulty in finding an appropriate term to describe the nature of the "work" in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show, the questions and answers in the quiz show etc.) and identified as an "original dramatic work". No case was cited to their Lordships in which copyright of the kind claimed had been established.
The protection which copyright gives creates a monopoly and "there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world:" Tate v. Fulbrook [1908] 1 KB 821, per Farwell J. at page 832. The subject matter of the copyright claimed for the "dramatic format" of "Opportunity Knocks" is conspicuously lacking in certainty. Moreover, it seems to their Lordships that a dramatic work must have sufficient unity to be capable of performance and that the features claimed as constituting the "format" of a television show, being unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential characteristic."
- Ms. Heal was critical of the Privy Council's decision and reasoning in Green and invited me not to follow it. She suggested that the Privy Council fell into the error identified by Lord Reid in Ladbroke v William Hill (supra) of dissecting the proposed format into individual characteristics rather than looking at the whole, and that in finding that the alleged format lacked sufficient certainty, the Privy Council was confused (or at least over-influenced) by the separate question of whether there was sufficient evidence as to precisely what the written scripts contained. Ms. Heal submitted that the approach of Gallen J in the New Zealand Court of Appeal in Green was preferable.
- On the facts of this case, Ms. Heal submitted that the Minute Winner Document was analogous to the football pools framework which qualified for copyright protection in the Ladbroke case. She submitted, in paragraphs 29 and 30 of her Skeleton Argument, that the format as set out in that document added up to a "distinctive action framework" for a television gameshow which comprised the following "distinctive features",
"…the use of the title Minute Winner, the phrase "one minute to win (something)", examples of minute-long tasks using ordinary household items capable of being performed and completed in a minute by individuals on camera; set either in a studio or on location; in either case capturing a contestant's actions and reactions during the attempt of the minute long task; to be broadcast either singly as fillers between feature-length shows or in succession to form a feature length show in its own right; and the use of prizes sponsored by firms in exchange for advertising during the programme."
On this basis, Ms. Heal contended, following the approach of Gallen J in the New Zealand Court of Appeal in Green, that the Minute Winner Document contained a sufficient structure to qualify for copyright protection – or at least that the decision on subsistence of copyright was sufficiently fact-sensitive that I could not determine it summarily against her client.
- For the Defendants, Mr. Cullen relied on the decision of the Privy Council in Green and observed that the twin requirements identified by the Privy Council, namely (i) sufficient certainty of subject matter and (ii) sufficient unity so as to be capable of performance, have been adopted in a number of other cases in England. These include Nova Productions Ltd v Mazooma Games Ltd [2006] RPC 379 in which Kitchen J referred to both Green and Norowzian before concluding that a video game was not protected as a dramatic work; and more recently The Ukulele Orchestra v Clausen [2015] EWHC 1772 (IPEC) in which copyright as a dramatic work was held not to arise in relation to elements of the way in which a ukulele orchestra presented themselves and their performances.
- That said, (and not surprisingly, given the business activities of the Defendants), Mr. Cullen did not go so far as to suggest that Green was authority for the proposition that there can never be copyright in a television show format. Instead, he referred me to the commentary in Copinger and Skone James on Copyright (17th ed) at paragraph 3-93 where, after referring to Green, the authors comment that,
"There is no reason in principle … why a format should not be protectable as a dramatic work if it contains a sufficient record of how the show is to be presented. Today, such formats, in addition to recording the central idea of the show or game, will often contain scripted spoken elements, directions for what the participants should do at particular stages, and details for the staging, lighting and sound effects. A useful test to determine whether there is a protectable dramatic work is to ask whether, using the written script or other record as a basis, it is possible to present a coherent and meaningful show which is capable of being performed."
- Mr. Cullen submitted that applying any of these tests, I could be satisfied that the contents of the Minute Winner Document fell so far short of what would arguably be required, that there was no real prospect of the claim to subsistence of copyright succeeding.
- On infringement, it was common ground that infringement of copyright will occur if a substantial part of the original work has been reproduced without a relevant licence. Ms. Heal contended that it could be inferred that such copying had taken place, because of the similarities between the features of the Minute to Win It game shows and the format set out in the Minute Winner Document. Her pleadings allege that the Minute to Win It game shows were "exactly or substantially" made to the format set out in the Minute Winner Document, and that the Minute to Win It game shows exhibited "slavish copying" of the sequence and pattern of incidents in the Minute Winner Document.
- Mr. Cullen disputed that there was any material similarity between the contents of the Minute Winner Document and the Minute to Win It shows so as to give rise to any fair or reasonable inference that the latter had been copied from the former. He contended that even assuming (for the purposes of argument) that copyright could exist in the Minute Winner Document, I should adopt the same approach and reach the same conclusion as had Arnold J in Meakin v BBC [2010] EWHC 2065 (Ch), namely that there are insufficient similarities between the two formats to give rise to any real prospect of success on infringement.
Analysis
- I think that the authorities and commentary to which I have referred above indicate that it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This is so, even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode.
- I do not need to decide on this interim application the precise conditions that must be satisfied before a television format can be protected as a dramatic work. What I think is apparent from the authorities, however, is that copyright protection will not subsist unless, as a minimum, (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.
- In Green, the majority of the New Zealand Court of Appeal and the Privy Council were not satisfied that those criteria were met on the facts. I should add that it is also not clear to me that the Privy Council fell into the trap identified by Ms. Heal of considering the features of the Opportunity Knocks shows individually rather than collectively. Instead, I think that the Privy Council simply thought that, even considered together, the features were not organised in such a way as to constitute a unified work that could be performed, which is the essence of a dramatic work. Moreover, although Gallen J took a different view of the particular facts of the case, I do not think that he necessarily took a very different view of the legal principles: he spoke of the need for the combination of features to amount to "a recognisable framework which imposed a shape upon the other constituent parts of the show".
- In my judgment, tested against any of those requirements, there is no realistic prospect of BUMP persuading a court that the contents of the Minute Winner Document qualified for copyright protection. In my view, those contents are both very unclear and lacking in specifics, and even taken together they did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form. The features were, in truth, commonplace and indistinguishable from the features of many other game shows.
- Taking Ms. Heal's identification (set out in paragraph 37 above) of the allegedly distinctive features of the Minute Winner format, neither the title itself nor the phrase "one minute to win" could be said to be clear or distinctive. As is obvious, the performance of a task against the clock to win a game or a prize is a common feature of most game shows, and it does not become distinctive because the time to complete the task is limited to a minute. Moreover, the words "one minute to win" are not even identified in the document as a catchphrase that is required to be repeated in the program, or how that should occur. Likewise, the fact that the show would give members of the public the chance to win something on television, and that it would record their reactions whilst doing so, is entirely non-specific, is inherent in the very nature of a television game show and entirely banal.
- The Minute Winner Document also does not, for example, prescribe where the action is to take place: rather it suggests that the action can take place anywhere - in a studio or on location – and numerous alternatives of the latter are suggested. The Minute Winner Document likewise does not contain any specification of who the contestants should be, or how they are to be identified and approached. From the examples given and the passing reference to "the combination of luck and pure coincidence" or being "stopped in the street" it would appear that it is intended that the selection of the contestant is to be at random by a presenter, but there is no detail as to how the presenter is to act in this regard or carry out the selection. Four (different) examples are given, only one of which contains any suggestion of a script for the presenter: beyond that the matter is simply left at large.
- Nor does the Minute Winner Document seek to prescribe the type of one-minute tasks that are required to be performed in any such a way that might be regarded as forming a recognisable or repeatable structure. Although it was suggested in argument that a distinctive feature of the format was that the task to be performed within a minute should involve the very item which then forms the prize if the task is completed successfully, BUMP's manifest difficulty is that this is not actually specified anywhere in the Minute Winner Document. Whilst it is true that the four specific examples given (the bicycle, the car, the television set and the clothing) all seem to have this feature, these are merely given as examples and the supposed link between the task to be performed and the nature of the prize is not identified in the Synopsis. Indeed, the only express reference in the Minute Winner Document to the source of the prizes is that they should be provided by the advertisers or sponsors of the program.
- I also do not think that Ms. Heal's suggestion that the task to be performed in one minute should involve "ordinary household items" is in any way derived from, still less spelt out in, the terms of the Minute Winner Document. Indeed, although many families own a car, which is suggested as the prize in one of the examples, I do not think that a car could, for this purpose, be described as an "ordinary household item".
- The length of the program is also not defined: the Minute Winner Document suggests that it might be a single one minute game to be shown in between other programs or in a program break, or a "feature-length" 30 minute show involving a number of games. Likewise, although the Minute Winner Document states that the show might be aired "daily or weekly … or … between main programs … morning, evening or afternoon", this is entirely non-specific, indicating that the show can be aired at virtually any time. It is, moreover, apparent that this description of when the show might be broadcast does not really prescribe the format of the show itself at all: and similarly, the generalised descriptions of why the program might be attractive to viewers, advertisers or producers cannot possibly form part of the format itself for copyright purposes.
- Even if I were wrong in this conclusion as to subsistence of copyright, a comparison of the Minute to Win It programs and the Minute Winner Document makes it clear that BUMP cannot hope to make out its allegation that a substantial part of its (alleged) copyright work has been copied by the Defendants. The features of the Minute to Win It shows were described in the evidence at some length and I had the opportunity to review a couple of DVDs of some of the episodes. In my judgment, the two are different in every material respect.
- As indicated above, the Minute Winner Document proposes a show which is shot either in a studio or in variety of locations, featuring a single game played for one minute against the clock by a member of the public who has been selected randomly and without warning, and who can win a prize provided by sponsors or advertisers. The emphasis is on coincidence and luck.
- In contrast, Minute to Win It is a game show involving contestants chosen in advance who have had the opportunity to practise, performing a series of one-minute games of skill for stepped levels of a monetary prize (with, at various points, so-called 'safety levels' at which point the prize money is guaranteed in the event of subsequent elimination). The UK version of Minute to Win It differed from the standard US version in that it was a contest between selected teams rather than involving an individual contestant.
- According to the evidence, the standard Minute to Win It process starts with potential contestants applying and being auditioned to appear. The games that might be used are advertised and promoted online, and are designed to be capable of being reproduced at home. Potential contestants are invited to practise the games at home and to keep a record of how they have performed. The selected contestants do not, however, know in advance which of the games identified online they will be required to play on the day of the show.
- The Minute to Win It games are designed in detailed and prescriptive terms and have been developed as the show has been developed. In the production bible which was in evidence, there are 419 such games which are presented and explained using stylised graphics. None of the Minute to Win It games recorded in the production bible is remotely similar to any of the four examples outlined in the Minute Winner Document.
- The Minute to Win It show itself is shot in a studio in front of a live audience, which includes the contestant's family and friends, from whom the contestant will be prompted to take advice, and who are expected to support him or her. The studio sets are designed to a particular specification detailed in the production bible.
- Each contestant plays a series of ten games with increasing levels of difficulty. At each level, the contestant attempts to climb a 'prize ladder' starting at $1,000 and increasing to $1,000,000. The contestant has three 'lifelines' so that, if he or she fails to complete a challenge, he or she can have another attempt. Three failures will result in elimination. If a contestant has reached a 'safety level' on the 'prize ladder', then, on elimination, he or she wins that monetary amount.
- In short, as those descriptions illustrate, there is no similarity between the idea outlined in the Minute Winner Document and the Minute to Win It shows, beyond the fact that they both involve games played against the clock for one minute. For obvious reasons, BUMP cannot, by asserting copyright, claim a monopoly on games being played against the clock for one minute. That is a commonplace idea which has been a staple of numerous television game show formats for many years. In all of the features that, individually or separately, might conceivably be said to be distinctive or which might serve to differentiate the show envisaged by the Minute Winner Document from the commonplace, the Minute to Win It show is materially different.
- I therefore conclude that BUMP's claim for subsistence and infringement of copyright is without any realistic prospect of success and should be dismissed.
Breach of confidence
- According to the Particulars of Claim, BUMP's claim for breach of confidence asserts that the information in the Minute Winner Document was of a confidential character and that it was communicated to Friday TV at the meeting on 11 November 2005 for the sole and limited purpose of licensing the format of Minute Winner to Friday TV for production and broadcast. It is alleged that such information was received by Friday TV knowing that it was confidential: and in his evidence, as I have indicated, Mr. Banner suggests that notwithstanding that Mr Millgardh and Mr Olsson declined to sign an NDA, they acknowledged that the information would be kept confidential.
- The Defendants contend that BUMP (as successor in title to Mr. Banner) is estopped from bringing such a claim by reason of the findings in, and outcome of, the Swedish proceedings between Mr. Banner and Friday TV. The Defendants also say that in any event the information in the Minute Winner Document would not qualify as confidential information in England, there is no arguable case that it has been misused by the Defendants (or any of the companies that BUMP wishes to join to the proceedings) and that the claim would in any event be statute barred by limitation.
- In Virgin Atlantic Airways v Zodiac Seats UK [2014] AC 160 at para [17] Lord Sumption outlined the various strands of what he described as the "portmanteau term" of res judicata, including in particular cause of action estoppel, issue estoppel and what has become known as Henderson v Henderson abuse of process. At para [20] Lord Sumption referred with evident approval to the classic exposition of the difference between cause of action estoppel and issue estoppel given by Lord Keith in Arnold v National Westminster Bank plc [1991] 2 AC 93 at 104 and 105,
"Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened …"
"Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue."
- Lord Sumption also endorsed Lord Bingham's statement of the Henderson v Henderson doctrine in Johnson v Gore-Wood [2002] 2 AC 1 at 31,
"Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
- Lord Sumption concluded (at paragraph 25) that although res judicata and abuse of process were juridically different, in that res judicata was a rule of substantive law and abuse of process was a concept that informed the exercise of the court's procedural powers,
"In my view they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation."
- It is clear that each of these three doctrines can apply following a judgment given in foreign proceedings as well as in earlier English proceedings. As regards cause of action estoppel, the principle is stated in Spencer Bower and Handley on Res Judicata (4th ed) at 7.05 as follows,
"The identity of causes of action is determined as a matter of substance. This is particularly important where the first action was brought in a foreign forum."
- As regards issue estoppel, the point was made by Lord Diplock in The Sennar (No.2) [1985] 1 WLR 490 at 493-494,
"In English law when a plaintiff, who, basing his claim on a particular set of facts, has already sued the defendant to final judgment in a foreign court of competent jurisdiction and lost, then seeks to enforce a cause of action in an English court against the same defendant based on the same set of facts, the defendant's remedy against such double jeopardy is provided by the doctrine of issue estoppel.
It is far too late, at this stage of the development of the doctrine, to question that issue estoppel can be created by the judgment of a foreign court if that court is recognised in English private international law as being a court of competent jurisdiction. Issue estoppel operates regardless of whether or not an English court would regard the reasoning of the foreign judgment as open to criticism….
To make available an issue estoppel to a defendant to an action brought against him in an English court upon a cause of action to which the plaintiff alleges a particular set of facts give rise, the defendant must be able to show: (1) that the same set of facts has previously been relied upon as constituting a cause of action in proceedings brought by that plaintiff against that defendant in a foreign court of competent jurisdiction; and (2) that a final judgment has been given by that foreign court in those proceedings.
- Henderson v Henderson was itself a case in which proceedings for an account had first taken place in Newfoundland and in which the claimants sought to reopen that account by raising new points in subsequent proceedings in England.
- Applying these principles to the instant case it is clear to me that BUMP's claim for breach of confidence must fail.
- I have set out above the elements of the claim brought in Sweden by Mr. Banner under section 6 of the Swedish Trade Secrets Act. Although not expressed in precisely the same way as a claim for breach of confidence under English law, it does seem to me that the substance of the claim was the same. The essence of both claims is that protection may be accorded to information of a sufficient quality which is obtained by a defendant in confidence, and damages may be payable if that information is then disclosed or misused in breach of that confidence.
- As explained by the District Court in its judgment, the Swedish Trade Secrets Act only accords protection to information qualifying as a "trade secret", and that requires the information to be such that, viewed objectively, its disclosure is likely to cause damage to the claimant in terms of competition. As explained by the District Court, that requires that the information must be more than information of a general nature: it must have reached some level of detail. It was on that basis that the information in the Minute Winner Document was held not to amount to a trade secret.
- The same type of considerations apply in a claim for breach of confidence under English law. It is clear on the authorities that in order to found an action for breach of confidence, the information in question must "have the necessary quality of confidence about it": see e.g. Coco v Clarke [1969] RPC 41.
- This means (among other things) that it cannot be too vague. So, for example, in in Fraser v Thames Television [1984] QB 44, Hirst J considered a claim for breach of confidence arising out of the communication by the plaintiffs of their idea for a television series to a scriptwriter, who had passed it on to a television company. Hirst J stated, at pages 65-66,
"I accept that to be capable of protection the idea must be sufficiently developed, so that it would be seen to be a concept which has at least some attractiveness for a television programme and which is capable of being realised as an actuality: see per Harris J. in Talbot v General Television Corporation Pty. Ltd. [1981] RPC 1, 9, lines 20-22. But I do not think this requirement necessitates in every case a full synopsis. In some cases the nature of the idea may require extensive development of this kind in order to meet the criteria. But in others the criteria may be met by a short unelaborated statement of an idea."
See also de Maudsley v Palumbo [1996] EMLR 460 at 469-470 as explained by Birss J. in Wade v BSkyB Limited [2014] EWHC 634 at [55]-[56]: affirmed on appeal [2016] EWCA Civ 1214.
- Moreover, and echoing the approach of the Swedish Act and the District Court, in defining confidential information qualifying for protection, the English courts have also focussed on the question of whether the information was of a type that, viewed objectively, could be thought likely to injure the claimant or give an advantage to his competitors or rivals. So, in Thomas Marshall (Exports) v Guinle [1979] Ch 227 at 248, Megarry V-C identified four elements which may be of assistance in identifying confidential information or trade secrets which the court will protect. He said,
"First, I think that the information must be information the release of which the owner believes would be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e., that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner's belief under the two previous heads must be reasonable. Fourth, I think that the information must be judged in the light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information or trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection."
(my emphasis)
- I therefore reject Ms. Heal's argument that the Swedish claim and the English claim are sufficiently dissimilar that cause of action estoppel cannot operate. In my judgment they are in substance the same claim, and as the Swedish courts delivered a final judgment on the merits of Mr. Banner's claim, he, and BUMP as his assignee, are barred by cause of action estoppel from pursuing a claim on the same facts for breach of confidence in England. I would add that I would in any event also have been inclined to accept the Defendants' submission that the information in the Minute Winner Document was too vague and insufficiently developed to qualify for protection as confidential information under English law. I have set out the references to the relevant authorities in that regard above, and although they make clear that a fully developed format is not a prerequisite for protection as confidential information, I think that the very generalised description of the concept in the Minute Winner Document fell far short of what was required.
- Even if that were not so, it must certainly be the case that BUMP is issue estopped from running a breach of confidence claim. The District Court expressly identified that the first issue that it had to decide as an essential element of the claim under the Swedish Trade Secrets Act was what information had been given by Mr. Banner to Friday TV. The District Court held that the only information that had been given to Friday TV was the information in the email and attached document sent ten days after the initial meeting on 21 November 2005. But BUMP's claim in this jurisdiction depends upon showing that information relating to Minute Winner was communicated to Friday TV at the meeting on 11 November 2005. The Swedish Court has held to the contrary, and in my judgment it cannot be open to BUMP, as Mr. Banner's assignee, to contend otherwise.
- Ms. Heal also suggested in argument (but not in the pleaded case) that the communication of the Minute Winner Document containing its confidentiality wording under the cover of the email of 21 November 2005, which itself contained some fairly standard confidentiality wording, might itself give rise to an obligation of confidence upon Friday TV, but it seems to me that that submission is hopeless. Against the background that Friday TV had refused to sign a NDA and an alleged oral confidentiality agreement that extended only to the meeting on 11 November 2005, the sending by Mr. Banner of an unsolicited email to Friday TV cannot possibly be the basis for a finding that Friday TV somehow assumed or fell under an obligation of confidence to Mr. Banner.
- Finally, it seems to me that it is a Henderson v Henderson abuse of process for BUMP to seek to pursue a breach of confidence claim in England arising out of precisely the same facts that Mr. Banner relied upon unsuccessfully against Friday TV in Sweden. This is not simply a case where the same facts are relied upon in two essentially identical claims against the same defendant – which would be unjust in itself. What seems to me to be particularly abusive is that the claim has been brought by Mr. Banner through his newly incorporated English company. That seems to me to be a transparent ploy by Mr. Banner (to which BUMP is a party) to attempt to obtain the benefits of a new claim in England without paying the outstanding costs orders to which Mr. Banner is subject in Sweden.
- I therefore conclude that the claim for breach of confidence is barred res judicata and/or is an abuse of process.
Passing off
- BUMP's pleaded case on passing off is that the Minute to Win It game shows, in their title and format are deceptively similar to the Minute Winner title and concept included in the Minute Winner Document. It is said that the defendants produced or licensed the Minute to Win It game shows, and that,
"The aforesaid acts of the Defendants were calculated to lead and are likely to lead UK TV networks and production companies to believe, contrary to the fact, that [BUMP/Mr. Banner] has entered into a licensing agreement with the Defendants to make game shows to the [Minute Winner format] or are otherwise connected with [BUMP/Mr. Banner]."
The allegation appears to be that the Defendants have mispresented the Minute to Win It programme as Minute Winner so as to mislead Mr Banner's/BUMP's customers, notwithstanding the fact that no Minute Winner shows were ever made.
- It is fundamental that a claimant in passing off who is seeking to protect the use of a name must have goodwill in that name. It is also clear that for the purposes of a claim of passing off in England, that goodwill in the sense of actual clients or customers for the product in question must exist in England. In Starbucks (HK) Ltd and another v British Sky Broadcasting Group (No 2) [2015] 1 WLR 2628, Lord Neuberger held at para 47:
"In other words, I consider that we should reaffirm that the law is that a claimant in a passing off claim must establish that it has actual goodwill in this jurisdiction, and that such goodwill involves the presence of clients or customers in the jurisdiction for the products or services in question".
- Lord Neuberger also considered a number of authorities on how much business a claimant needed to establish that it had goodwill. Those included a number of cases in which it had been held that it was not sufficient for a claimant merely to have advertised its services in England. Lord Neuberger concluded, at paragraph 52,
"As to what amounts to a sufficient business to amount to goodwill, it seems clear that mere reputation is not enough… The claimant must show that it has a significant goodwill, in the form of customers, in the jurisdiction, but it is not necessary that the claimant actually has an establishment or office in this country."
The facts of the Starbucks case also make clear that it is not sufficient to establish goodwill in the jurisdiction that a website is accessed here.
- In the instant case, there is no suggestion that Mr. Banner ever had any clients or customers (still less any establishment or office) in England to whom he sold the Minute Winner concept. Instead, BUMP's pleaded case on the existence of goodwill is that from late 2005, Mr. Banner had a website which was widely available to television networks and production companies in the UK; that the Minute Winner format was merely one of those mentioned on that website; that the controller of network entertainment at ITV made inquiries of Mr. Banner for further information regarding the television game show formats listed on the site; and that Mr. Banner sent a copy of the Minute Winner Document (among ten others) to ITV by email on 25 November 2005.
- I do not think that these facts could conceivably give rise to any goodwill in Mr. Banner in England in the format or in the name Minute Winner. At most they amount to mere advertisement of Minute Winner as an available format, and show that a single inquiry was made in relation to it (among others). But the inquiry was not pursued, there were no customers who ever acquired rights to the Minute Winner format, and there were no Minute Winner shows. In these circumstances, the suggestion that Mr. Banner even had a reputation, never mind goodwill, in relation to the Minute Winner name or format is fanciful.
- I would also conclude, for reasons that I have explored, that there is simply no similarity between the shows produced under the name Minute to Win It and the Minute Winner concept, and hence there was no risk that any confusion might arise between the two in the minds of the television networks and production companies who might have been interested in them.
- As such, in my judgment the claim to passing off has no realistic prospect of success.
The remaining applications
- As I have concluded that BUMP's claims are all without realistic prospects of success, or barred res judicata or as an abuse of process, I do not need to consider in any detail the further arguments as to jurisdiction, limitation or whether permission should be given to join the three potential new defendants.
- I should record, however, that notwithstanding Ms. Heal's attempts to reformulate her pleading on the issue of the respective involvement of the three potential new defendants, I do not think that there was any proper pleading or realistic basis upon which BUMP could sustain a claim that any of the putative defendants might themselves have owed any obligations of confidence to Mr. Banner.
- Nor do I think that the draft pleading contained sufficient identification of the precise involvement of the various companies to support the omnibus plea that each of the putative defendants and Friday TV were,
"acting in concert with each other and/or as mutual agents for each other and/or under the control or direction of each other and/or authorised each other or any third party in relation to the work as a whole or any substantial part of it, either directly or indirectly…"
- I would therefore not have been minded in any event to grant permission to add the new defendants or for them to be served out of the jurisdiction (in the case of UCSP) on the basis of the draft pleading as advanced.
Conclusion
- For the reasons that I have indicated, I do not think that BUMP's case is sustainable on any basis and accordingly I will grant the Defendants' application for it to be dismissed.
