John Critchley acts for successful British producers: loss of a chance and the film industry (Don Quixote revisits the High Court for Judgment)

17 December 2020

John Critchley represented the legendary London based independent film production company the Recorded Picture Company (“RPC”) in its defence of a contractual claim for substantial damages brought by a French film company and Paulo Branco, a Portuguese film producer. Trials have continued during 2020 lockdown restrictions and in this important case the Chancery Division had to consider the law relating to loss of a chance in the specific context of disputed movie rights and the international film industry.

The claim concerned rights in relation to the film ‘The Man Who Killed Don Quixote’, directed by Terry Gilliam, from which the claimants complained that they had been excluded.  The decisive factual investigation at trial focused on two key questions: first, would Terry Gilliam and Mr Branco have reconciled after the breakdown in their relationship during pre-production; and second, even if there was such a reconciliation, would Mr Branco have been able to raise the necessary finance for the film?

RPC’s case was that the answer to both these questions was ‘no’ and so the claim for damages for loss of a chance must fail because the true chance here relied upon (to make the film) was merely speculative or even zero.  The Judge agreed with RPC and dismissed the claim, with costs.

At least two further features deserve comment.

First, despite the primacy of the extensive contemporaneous documentation, the oral evidence and the cross-examination of witnesses at trial still had an important function: see the judgment at [35]-[36] and Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), as qualified by the Court of Appeal in Kogan v Martin [2019] EWCA Civ 1645.  The high quality of the oral evidence called by RPC, especially Terry Gilliam and CEO Peter Watson, really mattered.

Second, this trial was conducted entirely remotely, in the heart of lockdown.  There was a substantial electronic bundle.  Witnesses gave live evidence from Lisbon, Zurich, Paris, and different parts of London, and all were cross-examined, in a case where credibility was challenged on both sides.  The Judge and each counsel participated from their own respective rooms.  Each individual member of the legal and client team on each side contributed from a separate location.  In addition to Skype for Business, extensive use was made of other digital technology to keep the teams connected during the trial.  Closing speeches were delivered in writing, sequentially.  Despite occasional technical interruptions the system worked well, and difficulties were accommodated.  It demonstrated that heavy disputes of this kind can still be litigated fairly and effectively in the High Court, despite the pandemic limitations.

John was instructed by Justin Kelly, in-house solicitor at Recorded Picture Company and was assisted by Roger Billins, solicitor, in his capacity as director of project managers, Unity Legal Solutions.

Read the full judgment in Recorded Picture Company v (1) Alfama Film productions & (2) Paulo Branco [2020] EWHC 3841 (Ch)