Practice and Procedure: Glass Slipper Ltd and another v Rimson Flower Productions Ltd and others

Pierina Legnani

Source Wikipedia Swan Lake

Jane Lambert

Intellectual Property Enterprise Court (Judge Hacon)  Glass Slipper Ltd and another v Rimson Flower Productions Ltd and others [2019] EWHC 1273 )IPEC) (20 May 2019)

Had it ever cleared the ground this might have been a very interesting action. The first claimant called itself Glass Slipper Limited which suggested a connection with Cinderella. English National Ballet has recently staged a beautiful production of Cinderella choreographed by Christopher Wheeldon in the Albert Hall which I reviewed in my dance blog (see Jane Lambert Cinders in the Round 13 June 2019 Terpsichore).

Sadly the case had nothing to do with Cinderella though it appears to have been about the copyright in a film of a performance of Swan Lake by the Mariinsky Ballet at its theatre in St Petersburg on 6 June 2013.  That could have been interesting too because the Mariinsky is the successor to the Russian Imperial Ballet which staged Marius Petipa's version at the Mariinsky Theatre on 15 Jan 1895. One of its most thrilling moments in that ballet occurs in the penultimate act when the principal ballerina performs 32 fouettés. The first ballerina to accomplish that feat was Pierina Legnani whose photo appears above. The fouettés still attract thunderous applause (by tradition the clapping starts on the 28th turn) and you can see why from this clip of Sharon Wehner's performance. English National Ballet, incidentally, also has a brilliant production of Swan Lake in its repertoire which I saw at Liverpool on 23 Nov 2018 (see Jane Lambert English National Ballet's Swan Lake: Kanehara conquers the Empire (25 Nov 2018 Terpsichore).

As I noted above, this case never really got off the ground. Very few ballet cases do. The only one I can recall off the top of my head is Massine v De Basil [1936-45] MCC 233, (1938) 82 Sol Jo 173 which concerned the subsistence of copyright in a ballet as a composite work and entitlement to the copyright (see my article Cracking Nuts 24 Nov 2011 IP Northwest).  In Glass Slipper Ltd and another v Rimson Flower Productions Ltd and others  [2019] EWHC 1273 (IPEC) the issues before His Honour Judge Hacon were whether or not he should strike out the proceedings as an abuse of the process of the court and whether he should make a non-party costs order against a director and shareholder of the claimant companies.  These were pursuant to applications made by the defendants.

In the event, His Honour acceded to both applications.  He struck out the action because it was substantially similar to a claim that had previously been launched with the same cause of action. The judge had ordered the claimant in the earlier action to give security for costs which it failed to do.  He made that order because the claimants' director and shareholder had told him that the claimants could raise the security.  After the time for lodging the security had expired, the judge struck out the claim.  Referring to the decision of the Court of Appeal in Harbour Castle Ltd v David Wilson Homes Ltd [2019] EWCA Civ 505 (27 March 2019), the judge found that the decision not to lodge security in the earlier action had been deliberate. He concluded at para [23]:

"I take the view that Ms McGuire [the claimants' director and shareholder] well understood on 20 September 2016 that she was being asked whether Event 1 could pay the security. I must assume that her answer yes was truthful. I find that Event 1, in the person of Ms McGuire, subsequently took a deliberate decision not to comply with the order for security. It follows that the present claim, an attempt by Ms McGuire to reinstate the substance of the claim of the First Action, is an abuse of process and falls to be struck out."

Mrs McGuire had been warned by the defendants that they would seek a non-party costs order against her under s.51 (3) of the Senior Courts Act 1981 if she persisted with the second action. The judge said at para [34]:

"Because Ms McGuire has run the present action (like the First Action) largely or possibly entirely for her own benefit and because she was warned of the defendants' intention to apply for a non-party costs order, I think it is appropriate to make Ms McGuire subject to such an order. "

He invited the defendants to file and serve a schedule of costs itemised by reference to the stage caps applicable to the Intellectual Property Enterprise Court.  By "stage caps" the judge was referring to Table A of Section IV - Scale Costs for Proceedings in the Intellectual Property Enterprise Court of Practice Direction 45 - Fixed Costs.

This case is a salutary reminder that although the Intellectual Property Enterprise Court will lean over backwards for litigants in person, it does have boundaries. Litigation is an expensive business that should not be engaged upon lightly.  Sometimes parties have to be protected from claims that have little chance of succeeding.  Anyone wishing to discuss this case, copyright, IPEC's practice and procedure or even ballet may call me on 020 7404 5252 during office hours or send me a message through my contact form,