Performing Rights Society v Bermuda Cablevision Ltd 1992 Civil Jur. No. 573

• Jurisdiction: Bermuda
• Judgment Date: 29 April 1997
• Date: 29 April 1997
• Docket Number: Civil Jurisdiction 1992 No. 573
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 1992 No. 573

BETWEEN:

The Performing Rights Society

Plaintiff

and

Bermuda Cablevision Limited

Defendant

Mr. M. Diel appeared on behalf of the Plaintiff

Mr. J. Elkinson appeared on behalf of the Defendant

Attorney General of the Duchy of Lancaster v L & NW RailwayELR [1892] 3 Ch 278

Tucker v Collinson (1886) 34 WR 354

Halliday v ShoesmithWLR [1993] 1 WLR 1

Re JL Young Manufacturing Co Ltd.ELR [1900] 2 Ch 753

Day v William Hill (Park Lane) LdELR [1949] 1 KB 632

Wenlock v MoloneyUNK [1965] 2 All ER 871

Rules of the Supreme Court, Order 18, rule 19(1)(a)

Rules of the Supreme Court, Order 41, rule 5

Application by summons to strike out parts of defence — Whether frivolous or vexatious

RULING

INTRODUCTION

This is an application by summons to strike out paragraphs 4, 5 and 6 of the Defendant's defence on the grounds that the pleading discloses no defence and that it is frivolous and vexatious pursuant to Rules of the Supreme Court 1985 (RSC) Order 18 Rule 19(1)(a) and (1)(b).

NO DEFENCE

I will now deal with the ground under O. 18 R 19(1)(a) of the RSC.

There is no dispute that in respect of the ground, that is, the pleading discloses no defence, no evidence is admissible. RSC O.18 Rule 19(2). Attorney General of Duchy of Lancaster v. L & NW RyELR[1892] 3 Ch. 278. Hence, no affidavit evidence is admissible.

The Defendant in paragraphs 4, 5 and 6 of its defence avers as follows:

‘4. The acts referred to in paragraph 8 of the Statement of Claim were carried out with the licence of the original broadcaster of the works complained of and, in the premises, the Defendants aver that no additional licence or consent was required from the owner of the performing rights copyright in each such musical and associated literary work. Save as aforesaid paragraphs 9 and 10 of the Statement of Claim are denied.

5. Paragraphs 11, 13, 14 and 15 of the Statement of Claim are denied.

6. In the circumstances the Defendants deny that the Plaintiffs have suffered any loss or damage as alleged in paragraph 16 of the Statement of Claim or at all or are entitled to the relief alleged in the Statement of Claim or at all.’

First I do not find convincing the submission by Counsel on behalf of the Defendant that the application should be dismissed for the reason that the application was not made promptly within the meaning of the Order.

The rule is that where the defence is being attacked the application may be made even after the pleadings are closed per Brett M.R. inTucker v Collinson(1886) 34 W.R. 354 or the trial...