Beyond belief. Lloyds TSB Insurance Services Ltd and Halifax General Insurance Services Ltd v James Michael Shanley [2014] EWCA Civ 407 is an unusual case. It's not unusual for the fact that it's an IP case which was not heard by a trial judge who was an IP specialist, since that seems to be quite a common occurrence these days. What's more, Judge Pelling QC has been getting his name on to this blog on
quite a few occasions in recent times. No, it's unusual in that not only did the trial decision seemingly escape everyone's attention but because the ruling of the Court of Appeal for England and Wales is also something of a secret since it hasn't been posted on the BAILII legal resource website -- the final resting place for most appellate IP decisions in England and Wales. The only bit of this dispute that seems to have been picked up was a note on the Lawtel subscription-only service of the judge sentencing the successful claimant to three months in prison for contempt of court: [2013] EWHC 4603 (Ch).
So what is this action all about? Today's morsel concerns an appeal against part of the judgment of Judge Pelling QC (sitting as a judge of the High Court) a little over a year ago and against his consequential order that the first defendant -- Lloyds TSB Insurance Services, no less -- had infringed Shanley's copyright and misused his confidential information when, in the course of business, it used a scoping tool for which Shanley had written the software, and that the second defendant -- Halifax General Insurance Services -- also infringed Shanley’s copyright and acted in breach of its duty of confidence to him by supplying that scoping tool to Lloyds.
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The appeal related to the use of the scoping tool by Lloyds and the crucial issue was whether, at a meeting in September 2006, Shanley gave Halifax permission not only to use the scoping tool but also to allow Lloyds to use it. It was accepted that, in the absence of such permission, Lloyds' use of the tool definitely infringed. Judge Pelling found that Shanley granted no such permission. Oh yes he did, chorused Lloyds and Halifax, adding that he fell into error both as a matter of law and in making findings that were not open to him on the evidence. An IP-rich Court of Appeal (Lords Justices Kitchin and Floyd, plus Sir Bernard Rix) dismissed the appeals of the two financial institutions in a judgment, delivered by Kitchin LJ, which contained no law at all -- no cases were discussed, no statutes lovingly construed -- but which turned on an issue that is becoming increasingly common in IP litigation these days: how do deal with parties who are dishonest witnesses. As Kitchin LJ concluded:
"39. This is a most unusual case. Mr Shanley has prevailed in his claims in respect of the use of the scoping tool by Lloyds despite his manifest and repeated dishonesty. But, as the judge himself observed, the fact that a claimant tells lies does not necessarily lead to the conclusion that the whole of his case is without substance. That was the position here. .... The judge did not misdirect himself in law and arrived at conclusions which were open to him on the evidence before him. I would therefore dismiss this appeal".
Says this Kat, here's another case where the successful claimant and IP owners went to jail:
Utopia v BBP Marketing, a design infringement case in which the claimants got six months and two months respectively. And let's not forget
FH Brundle v Perry, where this Kat felt that a patent owner who made unwarranted threats to sue for infringement did quite enough to get to prison but hit an immovable object in the form of a merciful judge.
Merpel wonders what they do in other countries. Surely, particularly in the European Union, there should be a level playing field when it comes to dealing with miscreant IP litigants -- otherwise they might shop around for the jurisdictions in which they get the least punishment.
Lies, damned lies and statistics
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