Exercising restraint: a sad little episode where there are only losers

While in theory every piece of intellectual property litigation has a winner and a loser, from time time to time one spots a case that seems to leave everyone worse off.  Mensah (trading as 37 Days 3 Hours 9 Minutes Creative) v Darroch & Others [2014] EWHC 692 (QB) is such a case, this being a 19 March 2014 ruling from Mr Justice Tugendhat, sitting in the Queen's Bench Division of the High Court, England and Wales. It definitely seems to fit the bill of a sad little case that produce no winners, no happiness and no satisfaction.

Mensah approached Darroch -- the Chief Executive Officer of BSkyB since 2007 --  in 2011 and offered him two commercial business proposals for TV shows, entitled "Duets" and "Seven" respectively. "Duets" was described as a singing-and-dating game show, while "Seven" was a game show based on luck.  Darroch decided not to take Mensah's proposals further. However, Mensah claimed that Darroch and his colleagues subsequently combined his two proposals and then fraudulently misrepresented themselves as their originators by launching a show known as "Sing Date". Mensah added that he had approached other broadcasting companies with the proposals but that they had been rejected on the ground of similarity to "Sing Date".

In an action in which he represented himself, Mensah sought legal relief through a claim for deceit, fraudulent misrepresentation, breach of fiduciary duty and breach of confidence, basing his claims on an alleged failure by one of Darroch's chief executive officers to investigate the pleaded misconduct. According to Mensah, the individual and corporate defendants had links with one another and had conspired to injure him. Darroch denied any breach of fiduciary duty and adduced evidence that "Sing Date" had been in the process of development ever since 2009. What's more, he said, the only element "Sing Date" shared with Duets was that both involved singing and dating -- a general idea that could not, of itself, be protected in law. After issuing the claim form, Mensah made applications for a data forensic expert to verify Darroch's emails and for access to the defendants' servers. At this point Darroch and the other defendants sought an order that Mensah's action be struck out because there was no factual basis upon which it might succeed.

Tugendhat J struck out Mensah's action and indeed went somewhat further to protect the defendants from what he saw as an entirely unfounded action. In his view:

* Mensah's case, as pleaded, lacked the material facts on which serious allegations of dishonesty and conspiracy might be based,since it was essentially that "Sing Date" so closely resembled "Duet" and "Seven" that the court should infer from that fact alone that those who developed "Sing Date" used information provided by him;

* Mensah had however made no serious attempt to set out the alleged similarities. Indeed, the terms in which he described "Seven" actually contradicted any claim to similarity with "Sing Date".

* Since on the facts there was no case which Mensah could plead which would have a real prospect of success, his claim had to be struck out in its entirety.

* There being unanswerable evidence that there was no foundation for Mensah's speculative claims, and since he persisted in pursuing serious allegations of dishonesty, it was appropriate to make a civil restraint order to stop him bringing further proceedings for a period of two years.

Life can be tough for
litigants in person ...

The IPKat is always sad when these cases come to court, since the thwarted claimant carries a passionate conviction, which nothing can shift, that he or she is the author, creator or originator of an idea that has subsequently become a successful programme; to this conviction is added a further layer of belief that the legal system has victimised them or treated them unjustly.  Worst of all, IP gets a hammering too: the system is seen as being insufficiently sensitive to the nuances of creativity that lurk beneath the easily definable levels of patents, copyright, designs and trade marks.

The nine defendants engaged three firms of solicitors and two barristers between them in order to defend against claims which had not a snowball in hell's chance of success: Merpel wonders whether there might have been a cheaper option. Would it have been possible to persuade Mensah to accept a small sum and a pat on the back, on a without-prejudice basis, go drop the action and consider himself the show's originator?  Given his persistence it is improbable that he would have lightly accepted such a face-saving gesture.