COSTS, PROOF OF ORDERS, &C. (Hansard, 25 July 1988)

§ Mr. Michael Colvin (Romsey and Waterside)
I beg to move amendment No. 239, in page 65, line 32, leave out subsection (1) and insert— '(1) The Copyright Tribunal may not order that the costs of a party to proceedings before it shall be paid by any other party.'.

§ Madam Deputy Speaker
With this it will be convenient to take the following amendments: No. 241, in page 65, line 32, leave out subsection (1) and insert— '(1) If the Copyright Tribunal considers that a party to proceedings before it has behaved unreasonably it may order that that party shall bear the whole, or such part as may be specified in the order, of the costs of any other party to those proceedings; and in that case the Tribunal may tax or settle the amount of the costs, or direct in what manner they are to be taxed; but in no other case may an order in respect of costs be made.'.

§ Mr. Colvin
At this hour of the morning, I shall not take long in moving amendment No. 239, but I shall speak to amendments Nos. 240 and 241. They relate to clause 149 and the same subject, the costs involved in appearing before copyright tribunals for trade associations representing pubs and clubs, which are the National Licensed Victuallers Association in the case of public houses, and the Committee of Registered Clubs Associations—CORCA—in the case of clubs.
I declare an interest as a licensee, although I must say that mine is a silent pub; there is no piped music. I always insist on drinking my beer in peace. I am also an adviser to the NLVA.
The House will know that from time to time, fees for the licence to play music in pubs and clubs are negotiated between the trade associations and the Performing Rights 198 Society, the PRS. We have appreciated that, at times, the PRS can be extremely heavy-handed. For example, it recently tried to lay down a new club tariff that made no distinction between the profit-making disco type of club and the non-profit-making club such as the British Legion. Following an outcry and some powerful lobbying by CORCA, the increase for non-profit-making clubs has been limited to only 100 per cent. CORCA can be tough in its negotiations.
With some justification, it is felt that the negotiations can be a little one-sided. If a matter is taken to the copyright tribunal, it is often costly for the loser, not just in terms of the new fees but costs. A trade association might try to reduce its costs by appointing a solicitor to represent it, but the PRS, which enjoys substantial resources, can field leading, and sometimes extremely expensive, counsel. The association might have costs awarded against it, so under the present system, and that which is proposed in the Bill, appeals are discouraged. Surely that is not just.
My amendments would give some protection against heavy costs being awarded against an unsuccessful appellant. I could commend any of the three amendments to the House, but I moved No. 239 because it seemed to be the best, being a compromise between amendments Nos. 240 and 241.
In effect, amendment No. 239 provides that in proceedings before the copyright tribunal, each party should pay its own costs in all circumstances. The House will appreciate that that is a proposition that can cut both ways. If a trade association were to succeed in proceedings before the tribunal, however handsomely, it would have to bear its own costs.

§ Mr. Blair
I am following the hon. Gentleman's argument closely. I should like to know the present practice of the copyright tribunal. Does it make costs follow the event in the cases that he is describing—in other words, if a party loses, does it automatically pay the costs—or does it exercise discretion?

§ Mr. Colvin
I believe that it operates on a discretionary basis. I want a provision written into the Bill to ensure that all the costs cannot be awarded against the appellant in some cases.
Amendment No. 240 is throughout one-sided, in that it would ensure that a licensing body had always to pay its own costs while leaving the tribunal free to order that such a body should pay the costs of other parties as well. That may seem a bit steep, but it is not when we bear in mind the position of the licensing body—in this instance the PRS—that is responsible for forming and operating the licensing schemes.
Amendment No. 241 is a qualified version of amendment No. 239. It sets out to ensure that the tribunal should not cast the costs of any party upon another party unless it considers that the other party has behaved unreasonably.
Other amendments could be devised to give similar protection against the awarding of costs. Of the three amendments which I have tabled, I believe that No. 239 comes closest to that which is required. I consider it to be modest, sensible and just, and I hope that my hon. Friend the Minister will accept it.

§ Mr. Butcher
The amendments seek to limit in varying degrees the power of the copyright tribunal to order that 199 the costs of one of the parties to proceedings before it should be paid by the other. This power is already given to the performing right tribunal by paragraph 5 of schedule 4 to the Copyright Act 1956. Of course it would be wrong if the tribunal used it unfairly or so as to deter parties with a legitimate case from bringing proceedings, but there is no evidence at all that the performing right tribunal has acted in this way or that the copyright tribunal would be likely to do so.
On the contrary, I understand that orders as to costs are made by the performing right tribunal extremely rarely. In the limited time available since my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) tabled his amendments, we have been able to identify only one such case in recent years, where the originators were considered to have persisted with an application that was wholly misconceived after this fact had been made clear to them. Even in that instance the originators were asked to contribute only £250 towards the costs of the other party. Moreover, in making the award the tribunal specifically drew attention to the importance that individual applicants should not be deterred from applying to it by apprehension of the possibility that very substantial costs might be awarded against them". The power in clause 149(1) is discretionary only and I am confident that the copyright tribunal can be trusted not to abuse it. The record shows that that is exercised only in exceptional circumstances, and I believe that that will continue to be the case. I see no reason to deprive the tribunal of this power, or to limit it in the ways provided by amendments Nos. 240 or 241. The possibility of frivolous and time-wasting applications or references occurring from time to time cannot be ruled out, and the power to make an order for costs in those circumstances is important. The provisions in the Bill regarding the copyright tribunal have been scrutinised by the Council on Tribunals and it has raised no objection to this provision.
My hon. Friend hoped that I would be able to agree to the amendments. Regrettably, I cannot, and I hope that he will withdraw them for the reasons that I have given.

§ Mr. Colvin
With the leave of the House, I shall withdraw the amendments because the remarks of my hon. Friend the Minister have reassured me.
I noted that the powers are already available in legislation and that orders for costs are rare in practice; I hope that that will continue. My hon. Friend the Minister obviously places much trust in the tribunal's activities, but, if things go wrong, I trust that he and his successor will keep a careful watch on matters. I notice that, on the same page as clause 149, clause 148 relates to the general powers of the Lord Chancellor to make rules in respect of the activities of the Copyright Tribunal. There is power to use secondary legislation under the statutory instrument procedure to make rules to govern the operation of the tribunal. Given that those reserve powers are available to the Government, I beg to ask leave to withdraw the amendment.