Anonymized Summary of the Court of Appeal Opinion

Factual and Procedural Background

This appeal concerns challenges to three case management orders made by Judge Hacon in the Intellectual Property Enterprise Court (IPEC). The appeal proceeded with the permission of Judge Nugee.

The Plaintiff (the appellant in the appeal) brought an action for copyright infringement in respect of certain works (the "Works") he had provided in connection with a channel operated on a digital video Platform by the Defendant and a company through which she operated (referred to below as Company A and Defendant respectively). One of the Works was a text described as the "Disclaimer" used in video descriptions. The Plaintiff sent multiple takedown requests to the Platform from about February 2021, which led to repeated removals and reinstatements of video pages, and on or about 25 June 2021 the Platform removed further videos (largely in response to takedown requests about the Disclaimer).

The Defendants counterclaimed alleging tort of causing loss by unlawful means. On 22 July 2022, Judge Hacon gave judgment finding that the Defendants had infringed the Plaintiff's copyright in some but not all of the Works. The judge also concluded that the Plaintiff had made continuing misrepresentations to the Platform about co-authorship of the Disclaimer and, as a result, limited the Defendants' entitlement to claim in relation to videos taken down in response to requests relating to the Disclaimer after 13 March 2021.

The order of 10 November 2022 (the "10 November Order") declared that the counterclaim succeeded in relation to URLs disabled on or about 25 June 2021 due to takedown requests concerning the Disclaimer. Assessment of the Defendants' loss was adjourned to be heard with a quantum inquiry.

The Defendants commenced quantum proceedings in July 2023. The Plaintiff contended that the scope of the quantum claim was too wide and sought, by way of various applications and requests, to limit or strike out parts of the Defendants' points of claim and to obtain further information and disclosure. A series of case management orders followed in January–July 2024, including an order that quantum be determined on the papers (by agreement), directions about filing an index and bundle, and subsequent orders by Judge Hacon dealing with the Plaintiff's applications (including the 1 July, 15 July, 29 July and 31 July 2024 orders).

The principal contested interlocutory events were:

• The Plaintiff's application dated 1 July 2024 (the "1 July Application") seeking, among other things, to strike out parts of the Defendants' points of claim and to compel further information and disclosure;
• Judge Hacon's order of 15 July 2024 dismissing that application and ordering the Plaintiff to pay costs of £2,500 to the Defendants;
• The Plaintiff's further application of 19 July 2024 seeking, inter alia, the judge's recusal and setting aside or staying of the 15 July Order, which resulted in the judge's 29 July 2024 order refusing permission to appeal the 15 July Order and staying the recusal application pending any appeal to the Court of Appeal; and
• The 31 July 2024 order extending certain time limits in relation to submissions until after the outcome of the Plaintiff's appeal to the Court of Appeal on the 15 July Order.

Legal Issues Presented

1. Whether it was a procedural error for the judge to decide the 1 July Application without a hearing or without allowing the Plaintiff to make submissions (Article 6 / natural justice issue).
2. Whether the judge erred in declining to exercise the jurisdiction under CPR 23.8(3) to set aside an order made without a hearing and without an opportunity to make representations.
3. Whether the judge erred in law by concluding that the Defendants could claim damages for alleged upload restrictions (i.e., whether certain heads of loss were properly pleaded and recoverable).
4. Whether the judge erred in principle or procedure in concluding that the strike-out application was without merit.
5. Whether the judge erred in principle and procedure in declining to consider the Part 18 (specific disclosure/further information) application that was before him.
6. Whether it was lawful to apply a costs penalty for "unreasonable behaviour" in the circumstances of this application.
7. Whether the judge erred in ordering full costs to the Defendants for the 1 July Application without appropriate adjudication or apportionment.
8. Whether it was wrong for the judge to decide parts of the 19 July Application before addressing the recusal application.
9. Whether the judge erred by not adjudicating an application dated 30 July 2024 seeking extension of time to file submissions and instead making the 31 July Order extending other time limits.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff argued that the judge committed a serious procedural error by deciding the 1 July Application without a hearing and without allowing him to make submissions (Ground 1) and that, accordingly, he should have had relief under CPR 23.8(3) (Ground 2).
• The Plaintiff submitted that the Defendants' claimed heads of loss (notably "Sponsorship Damages" and "Centus Damages") went beyond the scope of what had been pleaded or proved at the liability stage and therefore were not recoverable; he contended causation and the scope of recoverable loss were matters for liability, not quantum (Grounds 3 and 5).
• The Plaintiff contended that he had properly sought specific disclosure and further information under Part 18 and that the judge should have considered that aspect of his application, which was reflected in the draft order though not set out on the face of the application notice (Ground 6).
• The Plaintiff argued that the judge erred in applying a costs penalty for "unreasonable behaviour" (Ground 7) and in ordering the full costs of the 1 July Application without apportioning between the strike-out aspect and the Part 18 aspect (Ground 8).
• The Plaintiff sought recusal of the trial judge and complained about the timing and sequence in which the judge dealt with the 19 July Application and related interlocutory matters (Grounds 9 and 10).

Defendants' Arguments

• The Defendants maintained that the IPEC's procedural regime (CPR Part 63) contemplates that applications will normally be dealt with on the papers and that the judge was entitled to decide the 1 July Application without a hearing (respondent to Ground 1).
• The Defendants contended that the Plaintiff had been given an opportunity to make submissions and, in fact, had made extensive written submissions in his witness statements and reply statements, addressing the substance of the strike-out application.
• The Defendants argued that the strike-out grounds (abuse of process and failure to comply with orders/rules) were not made out and that the facts alleged in the Points of Claim, if accepted at trial, could support the claimed heads of loss; therefore the strike-out remedy was inappropriate.
• The Defendants resisted a hearing (on the 1 July Application) and sought indemnity costs of the application on the basis of alleged unreasonable conduct by the Plaintiff.
• At the hearing of the appeal, counsel for the Defendants accepted certain concessions about temporal scope of claimed losses (e.g., that the Defendants did not assert claims arising prior to 25 June 2021), but later adjusted the pleading position in supplemental submissions, asserting the 10 November Order did not limit damages to those arising solely from takedowns on or about 25 June 2021.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Salomonsson v Sweden [2002] ECHR 736	Cited for the proposition that Article 6(1) may (in some cases) imply a right to an oral hearing before at least one instance.	The court treated the authority as part of the Article 6(1) analysis but concluded Article 6(1) was not engaged in relation to the Plaintiff's strike-out application in the procedural context (see also Micallef). The case was not relied on to require an oral hearing in the circumstances of the IPEC rules permitting decisions on the papers.
Micallef v Malta (17056/06)	Illustrates that Article 6(1) applies only to proceedings determining civil rights or obligations; not all interim measures engage Article 6.	The court used this authority to support the conclusion that Article 6(1) did not necessarily apply to the 1 July Application (which did not, as decided, determine the Plaintiff's rights where the Defendants waived an oral hearing).
Mireskandari v The Law Society of England and Wales [2009] EWCA Civ 864	Addresses the approach to making case management orders where an application to recuse a judge has been made; a judge may continue to make case management orders in appropriate circumstances.	The court applied this authority to conclude there was no error in principle in the judge making decisions on certain applications before deciding the recusal application, given the circumstances and the need for a "formal decision" to permit an appeal.

Court's Reasoning and Analysis

The principal reasoning follows the structure of the grounds of appeal and the applicable IPEC procedural rules (CPR Part 63).

Context and procedural framework:

• The IPEC operates with a strong emphasis on proportionality and cost-minimisation; CPR Part 63 modifies the general application rules so that, save where a court considers a hearing necessary, applications may be dealt with on the papers (CPR 63.25(3)).
• Under CPR 63.25(2), respondents must file a response within five days of service of an application (except at the CMC); and the default position is determination on the papers unless a hearing is necessary.

Ground 1 — Hearing / right to make submissions:

• The court rejected the submission that deciding the 1 July Application without a hearing was unlawful. The judge was entitled under CPR Part 63 to determine the application on the papers because the Plaintiff had not justified the need for an oral hearing and the Defendants opposed a hearing to avoid further costs. The judge's choice to determine on the papers fell within the court's discretion.
• On the related point that the Plaintiff was denied an opportunity to make submissions, the court found the Plaintiff had in fact had and taken the opportunity: substantial arguments and evidence were contained in his witness statement and reply witness statement (66 and 54 paragraphs respectively) including detailed legal argument in an exhibit. The judge was entitled to treat those written materials as the Plaintiff's submissions and to proceed without giving further opportunity.
• Article 6(1) was considered but held not to require an oral hearing in the present circumstances because the application did not determine civil rights in a way that required Article 6 protections (see Micallef), and because the Defendants had effectively waived an oral hearing.

Ground 2 — CPR 23.8(3):

• The court observed that the rule permitting an application to set aside an order made without a hearing (CPR 23.8(3)) did not assist the Plaintiff because, for the reasons set out under Ground 1, the Plaintiff had the opportunity to make representations and had done so. The question whether CPR 23.8(1)(c) is implicitly excluded by CPR 63.25 was left undecided as unnecessary to determine.

Grounds 3 and 5 — Merits of the strike-out application:

• The strike-out application was made under CPR 3.4(2)(b) (abuse of process or likely to obstruct the just disposal of proceedings) and CPR 3.4(2)(c) (failure to comply with a rule/practice direction/court order). It was not made under CPR 3.4(2)(a) (no reasonable grounds).
• The Defendants' points of claim in quantum pleaded three heads of loss: (1) "Video Damages" (lost advertising revenue during a defined Relevant Period), (2) "Sponsorship Damages" (lost sponsorship revenue), and (3) "Centus Damages" (loss under a specific sponsorship contract alleged to have been lost due to the cumulative effect of takedowns).
• The judge's assessment (in the 15 July reasons) was that the pleaded facts, if accepted at trial, were likely to lead to the conclusion that the Defendants would have received sums from third parties and that the claims were not abusive nor in breach of any rule or order. The court on appeal agreed that the strike-out remedy was not appropriate because the questions raised involved issues of fact and law unsuitable for determination on a strike-out basis. Even if the 10 November Order were read narrowly, the Defendants' arguments on causation and the proper assessment of damages were matters for the quantum inquiry.
• The appellate hearing revealed factual disputes (for example, whether further uploads were prevented by Platform actions or by the Defendants' voluntary decisions) that made it difficult to conclude that the quantum inquiry could safely be completed on the papers.

Ground 6 — Part 18 (specific disclosure/further information):

• The court found the complaint under this ground was well-founded. Although the face of the 1 July application notice indicated only a strike-out request, the draft order and the parties' evidence clearly addressed both strike-out relief and Part 18 relief. The judge should therefore have addressed both aspects or at least clarified whether the applicant intended to limit the application to the strike-out aspect. The judge's failure to address the Part 18 aspect was an error.

Ground 7 and 8 — Costs for unreasonable behaviour and apportionment:

• Zacaroli LJ held that the judge's conclusion that the 1 July Application was "so lacking in merit" as to amount to unreasonable behaviour was not a conclusion that could safely be reached. Importantly, the judge had only addressed the strike-out limb and had not dealt with the Part 18 limb; costs should have been apportioned if any award were justified. The specific argument that the claims went beyond the 10 November Order had some merit and could not be described as so lacking in merit as to justify an immediate costs sanction on the CPR 63.26(2) basis.
• Judge Arnold differed: he accepted that the judge had not apportioned costs between the strike-out and Part 18 aspects (a legitimate flaw) but considered that the judge was nevertheless entitled to find the Plaintiff had behaved unreasonably in bringing the strike-out application and that an immediate costs order under the relevant rule was within the judge's discretion.
• Judge Newey agreed with Zacaroli LJ that the costs order was not justified because the Part 18 aspect had not been decided and the Plaintiff's argument about the scope of the 10 November Order was not so devoid of merit as to establish unreasonable behaviour.
• The appellate court therefore reconsidered the costs decision and, by a majority (Zacaroli LJ and Newey LJ), concluded the costs order should be set aside and that apportionment was required had any order been appropriate.

Ground 9 — Sequence of dealing with recusal application:

• The court applied Mireskandari and held there was no error in principle in the judge deciding certain case management matters (including making a "formal decision" on the 15 July Order) before resolving the recusal application, given the circumstances (notably the Plaintiff's requests that the court issue a formal decision to enable an appeal to the Court of Appeal and the initial administrative position to await the outcome of any appeal).

Ground 10 — Failure to address the 30 July application:

• The court accepted that the judge erred in not addressing the Plaintiff's 30 July application for an extension of time; however, the parties agreed that new case management directions would be required for filing submissions in the quantum proceedings, so no substantive prejudice resulted and no specific remedial order beyond granting permission and formally allowing the appeal on that ground was necessary.

Holding and Implications

The appellate court's outcomes are expressed by reference to the leading judgment of Judge Zacaroli, with the views of Judge Arnold and Judge Newey recorded.

Final disposition (as explained by Judge Zacaroli):

• DISPOSITION: The appeal is dismissed in respect of Grounds 1, 2, 3, 5 and 9. The appeal is allowed on Ground 6 (failure to deal with the Part 18 application). The appeal is allowed on Ground 7 (costs sanction for unreasonable behaviour) so that the judge's costs order in the 15 July Order is set aside. Ground 8 is rendered unnecessary for separate consideration as a consequence. Ground 10 is granted permission and formally allowed, but no further specific order was required beyond agreeing that new directions will be necessary for submissions in the quantum proceedings.
• Consequences for the parties and case management:
  • The Part 18/specific disclosure application remains to be addressed in the quantum proceedings; the Plaintiff should not be required to pay any further fee in respect of that application as a result of the appeal ruling.
  • The costs award in the 15 July Order (requiring the Plaintiff to pay £2,500) is set aside (majority view); accordingly, there is no immediate costs penalty against the Plaintiff arising from that order.
  • The matter is to be remitted to Judge Hacon to consider, in the first instance, the recusal application. Depending on that determination, either Judge Hacon or another judge will give directions for the disposal of the quantum proceedings.
  • The appellate court indicated that, in its view, the circumstances had changed since the parties agreed to determine quantum on the papers and that it would be difficult to make a final determination of quantum without a hearing. The case therefore should be listed for a case management conference for further directions and likely a hearing on quantum.

The panel's opinions: Judge Arnold agreed with the majority except that he would have dismissed Ground 7 (i.e., he would have upheld the judge's immediate costs order save for the failure to apportion). Judge Newey agreed with the reasons and result given by Judge Zacaroli, including allowing Ground 7.

No new legal precedent altering general law was stated beyond the application of existing procedural rules and authorities to the facts of this case. The direct practical effects are case-specific: the Part 18 relief remains to be addressed, the immediate costs order in the 15 July Order is set aside, and the quantum proceedings will require further active case management and (likely) an oral hearing.

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Note: This summary has been fully anonymized and prepared strictly from the content of the provided opinion. All personal names and entities mentioned in the source opinion have been replaced with consistent generic placeholders.