There were no written contact terms governing the defendant’s safekeeping of negatives and transparencies with which it was entrusted by the claimant. There was also no list kept of what it had received, so when some of the films went walkies and the claimant sued, what would be the outcome?
Who: AP&T v PS
Where: Queen’s Bench Division of the High Court, London
When: January 2004
In this media industry case, the mysteriously named claimants AP&T had placed various film stills/negatives with the defendant PS for safe-keeping. Similar circumstances arise in the marketing and advertising industry, where an advertiser or brand owner will hand advertising films and other materials over to its agency, perhaps as part of the briefing process, and effectively leave that material with the agency for its safe keeping.
In the AP&T and PS case, ownership of AP&T changed and the new owners decided they wanted to take back the materials held by PS.
The bad news for PS was that when AP&T’s representative called to pick up the materials, they could not all be located. AP&T subsequently sued for delivery up of all the materials originally placed with PS and damages.
PS’s defence was that it kept no records of materials which had been deposited with them and in any event it may well have been that some of the materials had already been returned to AP&T.
But there was no hard evidence of this, and in the Court’s judgement, PS had failed to satisfy the burden placed on them as bailees and had not given any satisfactory explanation for the whereabouts of the missing materials. Accordingly PS was held liable to AP&T in respect of the missing stills. Damages of £2,500 were awarded, linked to the licence fees that AP&T might otherwise have earned by licensing out the unreturned stills.
Why this matters:
Clearly in this case the failure on the part of PS to keep a proper inventory of all the materials that had been placed with them by the claimants told against them.
Agencies holding client materials should keep an inventory of them; they should check the terms of their client contracts as these often make provisions in this regard, and they should also check the terms of their relevant insurance policies.