Jonathan Hill appeared for the Appellants (“Lunak” and “Lucasfilm”), and Tom Moody-Stuart KC and Joshua Marshall appeared for the Respondent (“Tyburn”) in this appeal against the order of Master Kaye (“the Master”) by which she rejected the Appellants’ application for the claim made against them in unjust enrichment to be summarily dismissed or alternatively struck out.
The dispute related to the on-screen depictions of the deceased actor Peter Cushing OBE. Before his death in 1994, Mr Cushing and his production company entered into an agreement with Tyburn for the production of a television film. At that time Mr Cushing was terminally ill and Tyburn alleges that the agreement gave it exclusive rights to digitally ‘resurrect’ Mr Cushing, in the event that he died during production. Mr Cushing died in 1994, prior to the television film’s completion. In 2016, Mr Cushing’s likeness was reproduced in the Star Wars film ‘Rogue One’, made by Lunak under licence from Lucasfilm. In 2021 Tyburn issued proceedings making claims against Mr Cushing’s estate, their agent and the makers of the film.
Tom Mitcheson KC (sitting as Deputy Judge of the High Court) upheld the Master’s findings and dismissed all three grounds of appeal. He observed that he should show some reluctance to interfere with the decision of the Master, but not the same level of reluctance as may apply to the sort of evaluative decision referred to by the Supreme Court in Lifestyle Equities. Nonetheless, he agreed with the reasons given by the Master and held that the case is not unarguable to the standard required to give summary judgment or to strike it out. The judge directly quoted the Master’s observation “three-party cases or indirect benefit cases are some of the most difficult and fact-sensitive cases of unjust enrichment”. As a result, he held, it was very difficult to decide where the boundaries might lie in this developing area of law in the absence of a full factual enquiry.