The relevance of Mr Bowen’s offer
48.Mr Price criticised the District Judge for being influenced by Mr Bowen’s offer to pay £250 for the use of the Photograph within days of the complaint raised on behalf of Media. Mr Price argued that this offer was for use throughout the world and £250 was very modest when compared to the sum that the parties would have agreed for worldwide use. 49.I agree that the hypothetical negotiations in issue would have been in relation to worldwide use of the Photograph. On the other hand, the use was on a website offering holiday cottages for rent only in Wales. I have already declined to speculate as to whether the fact that the website is accessible outside the UK would lead courts abroad to find that there could be actionable infringement of the local copyright in the Photograph. But I think that in the hypothetical negotiations between Media and Mr Bowen immediately before Mr Bowen’s use of the Photograph the parties would have been little concerned with potential access to the holiday homes website outside the United Kingdom. These hypothetical negotiations are assumed to have been conducted reasonably on both sides and I can see nothing wrong in the District Judge (by implication) taking the broad brush view that access to the website abroad would have been treated as adding nothing much of value to Mr Bowen’s use of the Photograph for 17 days. 50.51.Mr Price also argued that it was unfair to ask about offers made and be informed about Mr Bowen’s offer before the District Judge had delivered his judgment. I can see that it was not ideal. But by doing so the District Judge avoided another round of argument about costs after the judgment – if my experience is anything to go by, it would not have been brief – and the further expense involved. Bearing in mind the very minor nature of the infringement in issue in these proceedings, I do not think that the District Judge can be criticised for acting in the way he did.