MORE ON QUID NOVI; HARRODS CUTS LOSSES

More on Quid Novi

When posting this comment on the Quid Novi decision last week, the IPKat expressed a little anxiety about the haste with which summary judgment was ordered for copyright infringement, taking into account the evidence that the defendants had not yet submitted. He has since received this message from a duumvirate of IP enthusiasts who write as follows:

"We read the blog on Quid Novi Ltd and another v Innvotec and others, and we think it sounds like Lewison J got it exactly right and from what he said one should not be concerned that he is jumping the gun on disclosure. While we agree that, taken out of context, it is surprising to hear a judge comment on the basis of "the state of the evidence ... as it might have been after disclosure and trial", in context that may not have been so surprising. Disclosure is of course limited to disclosure of documents relating to the issues. The issues are defined in the pleadings. The defendants have to plead something that is pleadable. If the judge is satisfied that the is no prospect of the defendant raising a pleadable issue beyond that of putting the claimant to proof, then the only issues to which disclosure would apply would be the claimant's pleaded case. In a copyright action like Quid Novi, this would presumably require proof of creation and chain of title.

Bearing in mind that the claimant has to certify with a statement of truth that it knows of no reasonable prospect of the defendant defending the claim, it follows that the claimant cannot within its duty to the court be withholding material that would undermine the evidence which it puts forward (and that is as good a guarantee that nothing as held back as the statement of truth that would appear on the list of documents). Lewison J was therefore, in our view, justified in concluding that the defendant's case would not improve after disclosure".

The IPKat still remains slightly ill at ease. The defendants argued, among other things, that disclosure was necessary for the purpose of establishing whether Quid Novi's plan constituted an original work. While the unoriginality of the claimant's work is a defence that rarely succeeds, the judge would have to be pretty confident that the chain of factual causation leading to the creation of the claimant's work was so clear that there simply wasn't going to be anything disclosable that might upset the presumption that the plan was an original work in which copyright subsisted.

Quids in here
Quid pro quo here
Quo vadis here
Status quo here
Teach yourself Latin here


Disclosing documents and confidential information

Last Wednesday the Court of Appeal for England and Wales gave its ruling in Harrods Ltd v Times Newspapers Ltd and others.

To summarise, the Sunday Times newspaper published articles about Harrods' employment practices, mentioning the high turnover of senior executives in recent times at Harrods, the famous department store, citing in particular the treatment and dismissal of two such executives. Harrods sued the publisher, the journalist and the editor, seeking damages for breach of confidence and an injunction restraining publication of further information protected by confidentiality, stating that the defendants received information that they knew to be confidential. The defendants, saying it was in the public interest to disclose Harrods' wrongful behaviour and failure to follow good employment practice, sought further disclosure in relation to the circumstances of departure of 60 senior executives, including the two named in the articles.

Mr Justice Warren (in a decision blogged here by the IPKat) considered that the right thing to do was (i) to identify the relevant factual issues and (ii) limit disclosure to those issues. Adding that a defendant was not forced to base a public interest defence on what was known at the date of publication, he then made certain orders for specific disclosure, including the information relating to all 60 senior executives. Harrods appealed.

The court (Chadwick, Moore-Bick LJJ and Lawrence Collins J) allowed Harrods' appeal in part. It held that

* since equity would not protect the right of confidence in an iniquity, a defendant was entitled to disclosure so as to support that defence on public interest grounds.

* no defendant was entitled to a roving enquiry into a claimant’s business practices, so the width of the enquiry had to reflect the width of the relief sought in any injunction.

* Warren J was right to make the order for disclosure that he had on the case presented before him. However, after Harrods abandoned its claim to restrain the publication of information other than that already published, there was no reason for disclosing the information relating to any employees other than the two named in the article. His order would thus be varied, deleting the bit that required disclosure of information relating to the other 58 executives.

The IPKat is disappointed that this decision has not yet appeared on the BAILII website. At present it lives as a note on the Sweet & Maxwell subscription service Lawtel. He thinks the decision is right, though, and notes the subtle manner in which a claimant, by narrowing elements of its claim, can deflect the self-inflicted damage caused by large-scale disclosure.