“[3] … Both Mr Whittingham and Mr Cownie were formerly officers in the RAF. Mr Whittingham ended his flying career at an early age due to a medical condition and then re-trained as a Ground Instructor. Mr Cownie was a Pilot and later a Flight Instructor. Mr Whittingham left the RAF in 1990 and Mr Cownie left in 1998. [4] BGS was set up [under the name Performance Training (UK) Limited] in 1992 and over a period of time it became a highly regarded company specialising in the training of commercial pilots for the Airline Transport Pilots Licence (“ATPL”) then under the auspices of the UK Civil Aviation Authority (“CAA”) . [5] IDC was set up by Mr Cownie and his wife in 1996 at a time when he was still an RAF Officer. He was hoping to negotiate a contract with the RAF to convert its training documents to electronic format. But his bid to the RAF was unsuccessful. In 1997 Mr Whittingham and Mr Cownie met for the first time when Mr Cownie attended a classroom based course at BGS’s premises in Bristol. There are some minor differences of recollection between them about the circumstances of their meeting but they are not matters of any significance for the purposes of the preliminary issues. Mr Cownie suggested to Mr Whittingham that BGS’s existing training manuals could be converted into an electronic format with animated diagrams. The two companies worked together and later entered into an agreement dated1 September 1999 (“the 1999 Agreement”). The agreement formalised the existing arrangement between BGS and IDC. IDC was to create static artwork paid for by BGS and copyright vested in BGS. The technical manual produced as a result of the collaboration was sold to students by BGS. IDC received£50 for each copy of the manual sold. [6] In 2000 there were significant changes to the training of commercial airline pilots and responsibility for training was moved from a domestic to a European level, with responsibility given to the JAA [i.e. Joint Aviation Authorities – representing the civil aviation authorities of a number of EU states]. During 2000, BGS produced material for the new JAA ATPL course and IDC began work on [a] new computer programme which would display the JAA material as well as providing a questionnaire for the users. On19 January 2001 BGS and IDC entered into a new agreement (“the 2001 Agreement”). The application, called the JAA Multimedia Revision Aid (“JALS”) began to be sold by BGS in 2001 and IDC was paid£200 per copy sold. [7] From 2001 to 2009 IDC continued to supply static artwork to BGS. It is common ground that from August 2002, IDC did not make any further charge to BGS for the supply of static artwork. Between 2001 and August 2002 a charge had been made where the artwork had been prepared for IDC by an external contractor, but no charge had been made where the artwork was prepared in-house by IDC. Where such work was invoiced by IDC, it was charged at cost. [8] In 2009 Mr Whittingham and Mr Cownie fell out. Considerable efforts were made to try to patch up their differences with both companies employing the services of external consultants to assist in that process. Regrettably it did not prove possible to reach an accommodation and ultimately these proceedings were commenced in 2011.”
“Development 1. [IDC] agrees to produce for [BGS] vector artwork for any and all diagrams necessary for the ATPL technical syllabus notes. The costs of these artworks will be borne by [BGS]. 2. [IDC] agrees to produce animated versions of artworks for inclusion in the electronic document. The cost of these animations will be borne by [IDC]. 3. [BGS] agrees to supply all the necessary textual content for the electronic document. The cost of producing the textual content will be borne by [BGS]. Production 4. [IDC] agrees to produce a Windows compatible application of marketable quality, capable of displaying the ATPL technical syllabus within a suitable Windows style environment. Design and functionality will remain the sole responsibility and prerogative of [IDC]. Publication 5. The electronic document will be jointly published by [BGS] and [IDC]. The costs of production will be equally shared between the two parties. Marketing 6. The electronic document will be jointly marketed by the two parties … 9. The marketing strategy will be jointly determined by both parties and will be based on the underlying principle of sharing profits equally between both parties. Copyright 10. [BGS] owns and retains the copyright to its textual material and to the static artworks produced by [IDC] for inclusion in the syllabus document, with the exception of the artworks owned by Rolls Royce plc and licensed to [IDC] for its use. 11. [IDC] owns and retains the copyright on animated diagrams and graphics. 12. [IDC] owns and retains the Intellectual Property rights and/or any relevant copyrights on the design of the application and any underlying source code written by [IDC]. Licensing 13. Both parties retain, in perpetuity, a license to use, copy and distribute the application as a means of distributing the electronic version of the ATPL technical syllabus only to students of [BGS].”
“Definitions 1.1 “Licensor” means [IDC]. 1.2 “Licensee” means [BGS]. 1.3 “Application” means the software application produced as a multimedia revision aid to accompany [BGS’s] JAA ATPL printed course study material. 1.4 “Student” means a client of [BGS] registered as a student with [BGS] for the purposes of satisfying the theoretical training requirements for the JAA ATPL as laid out in JAR FCL 1. Purpose of this letter 2.1 This letter of agreement outlines the obligations, rights and responsibilities for both [BGS and IDC] in relation to the development, production, publication and marketing of the Application. Pre-Development Work 3.1 [IDC] agrees to produce for BGS vector artwork for any and all diagrams required to be included in the JAA ATPL printed notes. The cost price of these artworks will be borne by BGS. 3.2 [IDC] agrees to produce animated versions of artworks where these are deemed by [IDC] to be practicable and appropriate. The animations will be incorporated in the Application. The cost of producing the animations will be borne by [IDC]. 3.3 [BGS] agrees to provide all necessary textual content for inclusion in the Application. The cost of producing textual contents will be borne by [BGS]. Development of the Application 4.1 For a nominal fee of£5,000 [IDC] agrees to produce a Microsoft Windows compatible Application of marketable quality, which will display text, graphics and self-assessed question material in a suitable Microsoft Windows environment … Publication 5.1 The Application will be jointly published by [IDC and BGS]. [IDC] agrees to bear the publication costs for the Materials detailed in paragraph 5.1.1 [below]. All other publication costs will be borne by [BGS] … 5.3 CD-ROMs/CD-R will be provided by [IDC] on a sale or return basis. Marketing 6.1 The Application will be jointly marketed by [IDC and BGS]. 6.2 [IDC and BGS] may not independently market the Application to any third party without the prior permission of the other party. 6.3 [IDC and BGS] will market the Application to the best of their abilities. Copyright 7.1 [BGS] owns and retains the copyright to its textual material and to the static artworks produced by [IDC] for inclusion in the syllabus document, with the exception of those artworks owned by Rolls Royce plc which are currently licensed to [IDC]. 7.2 [IDC] owns and retains the copyright on animated artworks. 7.3 [IDC] owns and retains the copyright on any soundtracks produced to accompany animated artworks or other teaching material. 7.4 [IDC] owns and retains the copyrights and intellectual property rights on the design of the application and any underlying source code written by [IDC]. 7.5 The copyright for other software incorporated in the Application and used under licence by [IDC] will remain with the holders of the intellectual property rights … Cost of the Licence and other Accounting Measures 8.1 [IDC] agrees to License the Application to [BGS] for a fee of£200 per CD-ROM or CD-R sold to each Student. 8.2 [BGS] will settle outstanding accounts with [IDC] monthly in arrears. The Licence 9.1 The Licence permits: 9.1.1 [BGS] to distribute one copy of the Application to each Student … Technical Support 10.1 [IDC] agrees to provide technical support by e-mail to staff and Students for the duration of this agreement. 10.2 Technical support will be limited to addressing issues directly concerning the installation of the software and operation of the Application and its associated security authorisation software … Continuing Development and Rectification 11.1 [IDC] agrees to undertake further minor development and enhancement of the [A]pplication, including additional animated artworks for a period of 12 months from the date of first delivery of the Application … Duration of the Agreement 12.1 This agreement will remain in force for a period of not less than five years commencing from the date of signature of this document …”
“Objective Process (i) Construction (or as I would prefer to call it interpretation) is, in relation to any point at issue, the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (ii) For that purpose, even though the point in issue may be a narrow one, the interpretation of the relevant provision depends upon an understanding of its context within the agreement as a whole. (iii) The court's function is to ascertain the meaning of the agreement rather than to seek to improve upon it, or put right any inadequacies of meaning. Nonetheless the court recognises that draftsmen may make mistakes, may use occasionally inappropriate language and may fail expressly to address eventualities which may later occur. Implied terms (iv) The implication of terms is no less a part of the process of ascertaining the meaning of an agreement than interpretation of express terms. Implication addresses events for which the express language of the agreement makes no provision. (v) In such a case the usual starting point is that the absence of an express term means that nothing has been agreed to happen in relation to that event. But implied terms may be necessary to spell out what the agreement means, where the only meaning consistent with the other provisions of the document, read against the relevant background, is that something is to happen. (vi) Although necessity continues (save perhaps in relation to terms implied by law) to be a condition for the implication of terms, necessity to give business efficacy is not the only relevant type of necessity. The express terms of an agreement may work perfectly well in the sense that both parties can perform their express obligations, but the consequences would contradict what a reasonable person would understand the contract to mean. In such a case an implied term is necessary to spell out what the contact actually means. Commercial common sense (vii) The dictates of common sense may enable the court to choose between the alternative interpretations (with or without implied terms), not merely where one would “flout” it, but where one makes more common sense than the other. But this does not elevate commercial common sense into an overriding criterion, still less does it subject the parties to the individual judge's own notions of what might have been the most sensible solution to the parties' conundrum.”
“The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.”
“[18] During the past 40 years, the House of Lords and Supreme Court have laid down the correct approach to the interpretation, or construction, of commercial contracts in a number of cases starting with Prenn v Simmonds[1971] 1 WLR 1381 and culminating in Rainy Sky SA v Kookmin Bank[2011] 1 WLR 2900 . [19] When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions. In this connection, see Prenn, at pp 1384–1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as H E Hansen-Tangen)[1976] 1 WLR 989 , per Lord Wilberforce, Bank of Credit and Commerce International SA v Ali[2002] 1 AC 251 , para 8, per Lord Bingham of Cornhill, and the survey of more recent authorities in Rainy Sky, per Lord Clarke of Stone-cum-Ebony JSC, at paras 21–30.”
“[34] The only terms on which I insisted were that BGS should always retain the copyright of the text and the static images produced by IDC and used in its manuals with the exception of one or two complex diagrams licensed from Rolls Royce which we had considered easier to licence than to redraw. The reason for this agreed retention of copyright by BGS was that, should the relations between the parties ever break down, I considered that it was imperative that BGS still owned the copyright to our core product, the training material in the manuals. As I explain earlier … the static art referred to in the Agreement was editable vector art wherever possible. This too was important because the agreed retention of copyright in these files meant that, should relations between the parties break down, BGS could edit and change the art when required and not be stuck with a bitmap that could not be edited … [50] Clause 7.1 [of the 2001 Agreement] provided that BGS was to own and retain the copyright in the static artworks produced by [IDC]. This clause was a verbatim repeat from the Agreement of 1999 and the only clause I insisted on. As before, with the equivalent clause in the 1999 Agreement, I wanted to ensure that should relations between the parties ever deteriorate BGS would still retain its core product, the training manuals and the intellectual property rights in their content, allowing BGS to continue to develop both …”
“If static artwork was first produced by IDC for inclusion in other materials it has provided, and is subsequently provided for inclusion in ATPL Digital (or its predecessors), is such static artwork excluded from the provisions of clause 7.1 regarding ownership of copyright in static artworks?”
“2.6.1 It is not disputed that so far as originality was added by IDC for the purpose of inclusion in the printed notes, the copyright belongs to BGS not IDC. 2.6.2 Insofar as the added work in question was added by IDC for third party purposes the issue is as for [Issue] 2.5 above. 2.6.3 Originality issues will be left to the inquiry.”
“I prefer the evidence of Mr Whittingham on the subject of merger … BGS was, and remained, the major partner with IDC playing a supporting role, albeit an important one”. (iv) In line with that evidence, Mr Whittingham’s evidence in [68] of his 8th witness statement (for the trial before me) was that he agreed that the Cownies should have an increased share in the event of a sale, on the basis set out in Mr Cownie’s email dated11 September 2009 : “I had always felt morally bound to create the ATPL(A) multimedia material in return for the original ask of 35% because that was how I originally justified to you the increase in our share from 25%”. (v) By email to Mr Whittingham dated15 June 2009 , Mr Cownie stated “ATPL Digital 5.3, containing Air Law is almost ready for release … I think Jill [Cownie] and Graham [Cartmell] plan to release it at the end of the week or early next week”. (vi) The fact that this release included the new multimedia Air Law section appears from a document entitled ATPL Digital Development Path which refers to “Addition of multimedia Air Law” against the entry “Mid June 2009”. (vii) On17 June 2009 , Mrs Cownie, together with Mr Cartmell, visited Mr Whittingham at BGS’s premises and sought to negotiate an increase in the licence fee from£200 to£300 “to compensate for what she anticipated would be falling sales and to allow IDC to fund the enhancement of the multimedia aspects of the course” (see Mr Whittingham’s 8th witness statement at [112]). (viii) By email to Mr Whittingham dated20 June 2009 , Mr Cownie stated “I’ve stopped work on multimedia content and switched to other projects until we resolve the issues surrounding it”. (ix) Following this the relationship between the parties broke down. Negotiations continued over the summer of 2009 but did not result in a concluded agreement despite the involvement of Mr Rod Wren and Ms Gill Clarke. Heads of Terms were drawn up, but by email to Mr Wren dated5 November 2009 Mr Cownie wrote “My lawyer has advised me not to sign anything until he’s looked it over”
“Invoices 2919, 2921 & 2944 appear to be for images of helicopters. You will recall that you have prevented me from accessing the Helicopters Principles of Flight subject and all associated artwork in breach of our 2001 Agreement”
“I have an order for an amount of ATPL material that requires the text of Helicopter Mass & Balance, Performance and Principles of Flight to be supplied with the ATPL(H) interim DVD and a further enquiry from a different customer for the same product. You will recall that you are withholding from me, in breach of our 2001 agreement the text and images relating to Principles of Flight for Helicopters. Whether by accident or design you have also restricted my access to the images for Helicopter Mass & Balance and Performance”.I consider that it is unlikely that Mr Whittingham would have written in these terms unless he genuinely believed that “Helicopters Principles of Flight” was subject to the 2001 Agreement. Moreover, as Mr Whittingham is an intelligent man, and was vigilant to protect BGS’s interests at all times, I consider that it is unlikely that he would have formed any such belief without good reason. On my reading of this email, however, Mr Whittingham’s complaint about the other helicopter materials is different: it is that access to them is being denied, but not in breach of the 2001 Agreement. (iii) Moreover, there was no direct rebuttal of that assertion from either Mr or Mrs Cownie, as might have been expected if the assertion lacked foundation. The email in reply to Mr Whittingham’s email sent at 11.19, sent by Mrs Cownie at 13.52 on the same day, stated: “2919, 2921 do relate to helicopter images found in the helicopter principles of flight material Graham has written. As you should be aware our lawyers are in the process of arranging mediation to resolve the future use of this material”
“Since you redefined the access permissions on your network I can no longer see the Helicopter P of F files you referred to below. Could you make them available again, please?”
“[135] … With regard to a joint tortfeasor, the authors state that "the underlying concept is that the joint tortfeasor has made the infringing act his own". With regard to company directors, they state: "Directors are not liable as such for infringements committed by their company without their sanction or involvement; but they are liable if they procure the infringement by the company or the company acts pursuant to a common design to which they are a party; in essence, liability arises if it would arise regardless of the fact that the relationship is one of director and company." [136] A number of cases are cited as authority for these propositions. In one of these, MCA Records Inc v Charly Records Ltd[2002] FSR 26 , Chadwick LJ (with whom Tuckey LJ and Simon Brown LJ agreed) identified the following propositions at [48] to [53]: "First, a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the governance of the company – that is to say, by voting at board meetings. … Second, there is no reason why a person who happens to be a director or controlling shareholder of a company should not be liable with the company as a joint tortfeasor if he is not exercising control through the constitutional organs of the company and the circumstances are such that he would be so liable if he were not a director or controlling shareholder. … Third, the question whether the individual is liable with the company as a joint tortfeasor – at least in the field of intellectual property - is to be determined under principles identified in CBS Songs Ltd v Amstrad Consumer Electronics Plc[1988] AC 1013 and Unilever Plc v Gillette (UK) Limited[1989] RPC 583 . In particular, liability as a joint tortfeasor may arise where, in the words of Lord Templeman in CBS Songs v Amstrad at page 1058E to which I have already referred, the individual "intends and procures and shares a common design that the infringement takes place". Fourth, whether or not there is a separate tort of procuring an infringement of a statutory right, actionable at common law, an individual who does "intend, procure and share a common design" that the infringement should take place may be liable as a joint tortfeasor. …" [137] A further helpful analysis of the relevant case law and principles is set out by Kitchin J at paragraphs 103 -111 of his judgment in [Twentieth Century Fox Corpn v Newzbin Ltd[2011] EWHC 608 (Ch) ]. At paragraph 108 he said: "I derive from those passages that mere (even knowing) assistance or facilitation of the primary infringement is not enough. The joint tortfeasor must have so involved himself in the tort as to make it his own. This will be the case if he has induced, incited or persuaded the primary infringer to engage in the infringing act or if there is a common design or concerted action or agreement on a common action to secure the doing of the infringing act."”. "Directors are not liable as such for infringements committed by their company without their sanction or involvement; but they are liable if they procure the infringement by the company or the company acts pursuant to a common design to which they are a party; in essence, liability arises if it would arise regardless of the fact that the relationship is one of director and company." "First, a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the governance of the company – that is to say, by voting at board meetings. … Second, there is no reason why a person who happens to be a director or controlling shareholder of a company should not be liable with the company as a joint tortfeasor if he is not exercising control through the constitutional organs of the company and the circumstances are such that he would be so liable if he were not a director or controlling shareholder. … Third, the question whether the individual is liable with the company as a joint tortfeasor – at least in the field of intellectual property - is to be determined under principles identified in CBS Songs Ltd v Amstrad Consumer Electronics Plc[1988] AC 1013 and Unilever Plc v Gillette (UK) Limited[1989] RPC 583 . In particular, liability as a joint tortfeasor may arise where, in the words of Lord Templeman in CBS Songs v Amstrad at page 1058E to which I have already referred, the individual "intends and procures and shares a common design that the infringement takes place". Fourth, whether or not there is a separate tort of procuring an infringement of a statutory right, actionable at common law, an individual who does "intend, procure and share a common design" that the infringement should take place may be liable as a joint tortfeasor. …" "I derive from those passages that mere (even knowing) assistance or facilitation of the primary infringement is not enough. The joint tortfeasor must have so involved himself in the tort as to make it his own. This will be the case if he has induced, incited or persuaded the primary infringer to engage in the infringing act or if there is a common design or concerted action or agreement on a common action to secure the doing of the infringing act."”
“The intention is to set up a new school using mostly freshly written texts but illustrated with images from IDC’s catalogue. Because many of these images are wrongly believed by Alex to belong to him, we need to be extremely careful … We’ve come up with the plan below (with thoughts on possible defences) and need your careful and considered advice on its legal merits! … We intend to transfer to the holding company the rights to each and every image which we claim to own … We intend to use [various images] … We intend to exclude from our claim to ownership and therefore not to use [other images] … We intend not to use or claim ownership of copyright of [still further images] … We intend to use the three sections of text written by me (but with no written agreement on copyright) which currently form part of Alex’s printed and digital content … We assume that the above will provoke a fierce legal challenge from Alex. Can we protect the holding company and ground school from becoming involved if we leave IDC outside the formal group structure until the dust has settled? Or will the other two companies be subject to injunctions regardless …”
“Finally, [Counsel] relied upon Southern Foundries v Shirlaw[1940] AC 701 for the proposition that it is a breach of contract for a party to it to do anything of his own motion to put an end to a state of circumstances under which, alone, the contract can be operative. At page 717, citing Cockburn CJ in Stirling v Maitland (1864) 5 B & S 840, at 852, Lord Atkin said that the existence of such an implied obligation was well established law. Lord Atkin preferred to describe it not as an implied term, but as a positive rule of the law of contract that: "Conduct of either promisor or promisee which can be said to amount to himself "of his own motion" bringing about the impossibility of performance is itself a breach."” "Conduct of either promisor or promisee which can be said to amount to himself "of his own motion" bringing about the impossibility of performance is itself a breach."”
“[30] There is little authoritative guidance on the appropriate notice for termination of exclusive agencies or (as lawyers sometimes prefer to call them) distributorships. One possible view is that the reasonable notice period should equate to the time needed to find an alternative supplier and get a new product approved. Another view is that it need only reflect the time required for an orderly winding down of the distributorship. The only common ground between the parties was that, in the absence of any express term, the question, of what notice of termination is to be taken as reasonable, must be determined as at the time of termination … [31] … One result of not having any formal written contract [in this case] was that [the agents] were entirely free to sell products of other suppliers to their customers even if those suppliers were competitors of [the manufacturer]. No doubt not all products so supplied could be described as competitive products but the fact is that [the manufacturer’s] business only accounted for 20% of [the agent’s] overall turnover. This is an indication that a lengthy notice of period should not be implied. [32] … a distributor may have to spend or invest considerable capital at an early stage of the relationship to build up the business which may thereafter run with moderate annual expenditure. This would militate in favour of a lengthier notice period in the earlier years of the relationship and perhaps a lesser period once the business is up and running. No doubt it is right to lay some stress on the length of the relationship but I would not myself regard that as, in any way, critical, since businessmen expect to run risks in the ordinary course of business … It follows from this that while initial capital investment and business expenses out of the ordinary run of things may well be relevant to the amount of notice, ordinary and recurring expenditure is unlikely to have much relevance. [33] … The concept of a party to a contract being obliged to use his best endeavours to promote the products of the other party after notice of termination has been given (by whomsoever it may be given and in whatever circumstances) is a difficult one and must also militate in favour of a shorter rather than a longer period of notice. [34] …The reasonable notice period will have to apply to both amicable and vitriolic partings of the way … [36] We were not referred to any English authority apart from Martin-Baker Ltd v Canadian Flight and Murison[1955] 2QB 556 and Decro-Wall v Practitioners in Marketing Ltd[1971] 1 WLR 361 . The first case concerned the distributorship in Canada of ejector seats from aircraft which had been manufactured and patented by Mr Martin Baker. The main issue was whether the agreement, which was in writing and provided that the distributor could not sell products of other suppliers which might compete with those of the supplier, was terminable by any notice at all or was intended to be permanent. It is not surprising to modern eyes that McNair J decided that it was terminable on reasonable notice; he held that such reasonable notice was a period of 12 months. Decro-Wall was much relied on by the judge in the present case and was a case of a distributorship of French tiles in which the Court of Appeal held that a twelve month notice was appropriate. But there are three major distinctions between that case and the present. First, as in Martin-Baker, there was an express provision that the distributor was not to sell any goods competing with those of the supplier; secondly, the French tile business constituted 83% of the distributor's turnover, unlike the 20% of turnover in the present case; thirdly, although (as in the present case) there was substantial initial investment ("expensive spadework") in launching and promoting a new product in the United Kingdom, the agreement was terminated only three years after it began before any real reward for the initial expenditure could be reaped. In this case, there had been ample opportunity for the reward of initial investment to be earned. One way of regarding cases such as Decro-Wall might be to treat them as belonging to a category of case in which there is an implication that the agreement must exist for a reasonable time before any notice can be given. That would, however, not be open to us in this case.”
“Q: When in response to what she believed was an attempt by you to reverse engineer the MRS code, she switched the global MRS database off, your substitute MRS database was immediately able to be deployed and switched on? A: It was not immediately. Within an hour or so. … Q: I am just asking you whether or not switching off the MRS global database interfered with the operations of the schools and the students? A: It is effective interference. The effect of that action was minimal because we had managed to prepare for it.”
“Given that you do not intend to honour your promises to us, it is now inevitable that all products and services which have been provided to you free of charge in reliance of (sic) your promises may henceforth be withdrawn. You may continue to receive them but they must now be subject to newly negotiated written contracts. This includes (but is not limited to) all the artwork provided to you since the publication of JALS 3.0 – the point at which the “development phase” referred to in the 2001 Agreement ended. We are not being unreasonable and for the moment we will continue to support our current products subject to negotiating new terms. However there is no obligation on us to release this artwork for your new publications. If you wish to use any artwork created or enhanced after March 2004 you will first have to agree terms with us”
“Does IDC have a defence based on BGS’s alleged breaches?”
“there is no general doctrine of "good faith" in English contract law, although a duty of good faith is implied by law as an incident of certain categories of contract: see … [the YSP case] at paragraphs 120-131. If the parties wish to impose such a duty they must do so expressly.”
“emphasised that "what good faith requires is sensitive to context", that the test of good faith is objective in the sense that it depends on whether, in the particular context, the conduct would be regarded as commercially unacceptable by reasonable and honest people, and that its content "is established through a process of construction of the contract": see paragraphs [141], [144] and [147].”
“A number of expressions have been used to describe what amounts to a repudiatory breach. Two tests commonly applied are whether the breach is such as to "go to the root of the contract" or to deprive the innocent party of "substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain" from the obligations then remaining unperformed": see Chitty on Contracts (31st edn), Vol 1, paras 24-018 and 24-041.”
“[39] The first question that Diplock LJ posed in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd was how to decide whether the occurrence of an event discharged the parties to a contract from further performance of their obligations, where the contract itself was silent. The answer he gave at the outset of his judgment was: “The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same thing: does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings? This test is applicable whether or not the event occurs as a result of the default of one of the parties to the contract, but the consequences of the event are different in the two cases. Where the event occurs as a result of the default of one party, the party in default cannot rely upon it as relieving himself of the performance of any further undertakings on his part, and the innocent party, although entitled to, need not treat the event as relieving him of the further performance of his own undertakings.”… [44] There are three points which emerge from this. First, the task of the court is to look at the position as at the date of purported termination of the contract even in a case of actual rather than anticipatory breach. Second, in looking at the position at that date, the court must take into account any steps taken by the guilty party to remedy accrued breaches of contract. Third, the court must also take account of likely future events, judged by reference to objective facts as at the date of purported termination. [51] Whatever test one adopts, it seems to me that the starting point must be to consider what benefit the injured party was intended to obtain from performance of the contract. … [52] The next thing to consider is the effect of the breach on the injured party. What financial loss has it caused? How much of the intended benefit under the contract has the injured party already received? Can the injured party be adequately compensated by an award of damages? Is the breach likely to be repeated? Will the guilty party resume compliance with his obligations? Has the breach fundamentally changed the value of future performance of the guilty party's outstanding obligations? … [72] As Lord Wilberforce said in Woodar Investment Development Ltd v Wimpey Construction UK Ltd[1980] 1 WLR 277 , 283 “Repudiation is a drastic conclusion which should only be held to arise in clear cases of a refusal, in a matter going to the root of the contract, to perform contractual obligations”
“[120] I was sufficiently alarmed by the correspondence of July 2009 to return to the UK to consult solicitors. I also started a back-up of all the master InDesign files, the source code for ATPL Digital and the MRS and all the master art files from IDC’s servers onto my own servers at BGS. [121] In doing this I did not enter into any areas of IDC’s network where Graham had not given me access. The artwork and InDesign files were in their designated folders and the MRS and ATPL Digital 5.3 source code were, I think, on the main server directory. I do not believe that Graham was aware that I had done this and, as I was hoping for a peaceful solution, I certainly did not tell him that I had done so. I firmly believed at that time, and I do now, that because of Graham’s clear statements BGS was at least part owner of both items of software and I was therefore entitled to hold copies of the source code and because of the Agreement of 2001 and our subsequent conversation in 2003 I was in no doubt that BGS also owned the static artwork and the text files…”
“[173] My major concern at this time was that Graham had control of the MRS software which in turn controlled all communication between the students and BGS, and between our client schools and their students. Graham had in the past been very quick to suggest ‘switching off the MRS’ for schools whom he thought might breach our copyright or not pay bills and I was acutely aware that if he chose to cut off the service, as in fact he later did,the ensuing chaos of several thousand customers’ computer programs all failing simultaneously, and without a fix, would bring BGS commercially to its knees. That he was also aware of this is I believe apparent from his disclosed communication with his lawyers dated18 March 2010 in which he stated, inter alia: “When it suits us (just before launch of the new school) we intend to withdraw all products and services provided outside of the 2001 agreement with the minimum possible period of notice. This includes: 5.3 Permission to use the management and reporting system which is jointly owned by IDC and ATPOnline Ltd. (A complete show stopper for Alex)” [174] In order to mitigate the damage caused when this occurred (and I was sure it would) it seemed to me essential that we should have an operating version of the MRS ready to take over when Graham turned his MRS off. I remembered that I had a backup of the source code of the MRS from the previous year so around March 2010 I engaged Mark Hall of i612 Limited (who is my then wife’s cousin and on her recommendation) to carry out a feasibility study into building a working copy of the MRS software. [175] On20 May 2010 Mark reported to me that this was complete and that he had the ability to create a working version of the software. This meant that BGS could, when Graham acted against us, theoretically take back control of the www.bristol.gs address which Graham was holding and install our own version of the MRS software on the site to restore the service. At this stage, though, there were still two outstanding problems. The first was that there would be an inevitable gap (possibly of several days) between Graham’s hostile action and BGS restoring the service, and secondly any historic student data would be in Graham’s database at the time of switchover, and would not be recoverable by BGS (although part of this was later recovered by order of Judge Birss dated27 July 2011 ). [176] In early September 2010 Iouri Prokhorov, the CEO of Helastel Limited, a software house based in Bristol, who was just starting to work on the replacement software for ATPL Digital 5.3 which was eventually to become ATP Digital 6 explained an idea that had. He knew that when software searches for a website it really looks at what is called a DNS name, which is not the same as a domain name like www.bristol.gs, and that the domain owner has the ability to direct a DNS name request to a different server. Accordingly he suggested that we use the DNS system to first direct MRS traffic to our servers, where the data was then copied in two directions, one to our MRS which we called the ‘interceptor MRS’, the second to Graham’s MRS. This meant that we could first of all obtain a copy of all MRS data from the point the system started running and secondly that we could switch over to our operating MRS with a delay of only minutes if my suspicions of Graham’s and Jill’s hostile intent were proved correct. Because Graham’s MRS data would continue to flow uninterrupted this had the additional benefit of not alerting Graham to our capabilities and therefore not precipitating any additional hostile action. [177] I introduced Iouri to Mark Hall, and they worked together on the system together with other sub-contractors. Testing continued with various degrees of success until around the end of March 2011 when the interceptor MRS went live. I refer to an email from Iouri dated25 March 2011 stating his intention and to one of7 April 2011 saying that the system was live. The interceptor system did not operate faultlessly from this point on, and was to cause problems later …” “When it suits us (just before launch of the new school) we intend to withdraw all products and services provided outside of the 2001 agreement with the minimum possible period of notice. This includes: 5.3 Permission to use the management and reporting system which is jointly owned by IDC and ATPOnline Ltd. (A complete show stopper for Alex)”
“[178] About three months earlier, in around early June 2010 I had first met with Iouri Prokhorov to discuss software development. This progressed into at least one other meeting at which I gave him the Elearnity consultancy report, a copy of ATPL Digital 5.3 and the backed up source code of that and the MRS and asked him to comment on the existing software and come up with proposals for developing a replacement system. By mid July 2010 Iouri had developed a project overview transmitted to me on the21 July 2010 and by8 September 2010 had developed a project roadmap. A draft supply contract dated1 October 2010 was provided by Helastel, but I do not believe that it was ever signed. Helastel were however verbally engaged from around September 2010 to produce the new ATP Digital 6.0 software. [179] Helastel eventually produced the new ATP Digital 6.0 software and it was first distributed after4 May 2011 . I shall describe the circumstances later. ATP Digital 6.0 contains no components or design features from either ATPL Digital 5.3 or from the old MRS. [180] As a result of the investigative work that we had done, and of the project to create the interceptor MRS, our contractors had by the end of 2010 also created at least partially working copies of both the existing MRS and the ATPL Digital 5.3 software. This was not done not (sic) for commercial use, and there was no intent to distribute the software without Graham’s and Jill’s consent. It was done only so that the contractors could understand the current system and so that we could either forestall or mitigate the hostile action which I believed was on the horizon. In the event, this was fortuitous …”
“[208] Privately, by22 April 2011 I was convinced that Jill and Graham had permanently withdrawn technical support for the ATPL Digital 5.3 program and certain that they would not supply any more copies of the ATPL Digital 5.3 software. Her email to Nick Sogias the day before had specifically said: Until the matter is resolved to our satisfaction no further products will be activated or issued to Bristol Groundschool and she was still refusing to supply the ten DVDs we had ordered a few days before. [209] I was acutely aware that our income stream would be sharply cut off if we had no software to sell, and for that reason it was crucial to get ATP Digital 6 on the market as soon as possible. Equally I was aware that Helastel would find it extremely difficult to provide technical support for the thousands of existing copies of ATPL Digital in use, being comparatively unfamiliar with the software. Provision of technical support for the existing versions of ATPL Digital would certainly require an activation mechanism, as activation or re-activation was required not only on purchase but also half way through the course on starting the second module of work and when installing the software on a new computer, and also when the customer changed their hardware configuration. In fact the requirement for activation is specifically referred to in clause 10.2 of the Agreement of 2001: “Technical support will be limited to addressing issues directly concerning the installation and operation of the Application and its associated security authorisation software.” [210] I was also very aware of the timing of Jill’s actions, her precipitous action on the day before, the previous breaches of contract and evidence of hostile intent and of the fact that she and Graham had an alternative product that they were promoting. I thought it was very likely that their actions were intended to force BGS out of business, or at least damage its reputation and business critically so that ProPilot could take over our market. In my view BGS had to do everything that it could to survive the next few weeks and limit the PR damage as much as possible. [211] Also on22 April 2011 I telephoned Iouri Prokhorov, the CEO of Helastel, and told him what had happened, and asked what we could do. He said that ATP Digital 6.0 was nearly ready to go, but obviously had not been tested, but if his programmers worked over the weekend he thought it likely that, by some time in the following week, we would be able to offer copies of ATP Digital 6 to customers that had been provided with ATPL Digital 5.3 that IDC had refused to activate, and to new customers. He also said that as a short term fix Helastel had the capability to build a copy of the part of ATPL Digital 5.3 that required activation and, using that, activate the students’ software for them. I instructed him to go ahead with both plans simultaneously. In the event ATP Digital 6.0 was not released until just after4 May 2011 but we were able to take orders from individuals from around Monday25 April 2011 by advising them that there would be a short delay getting the product to them … [215] In the course of providing technical support for ATPL Digital 5.3 Helastel produced several versions of the executable or .exe file that responded to their activation rather than IDC’s. Its purpose was to provide technical support, not to market ‘pirate’ versions of ATPL Digital 5.3. We did not need to do that, we had our own ATP Digital 6.0 software with content that matched the new syllabus, whereas ATPL Digital 5.3 content was still addressing the ‘old syllabus’ for which the exams were to be withdrawn in less than a year. An example of the use of such a ‘patch’ is in correspondence between Iouri and Fabien Leroux on25 May 2011 . Fabien had an old version of ATPL Digital, version 5.2, rather than trying to fix his old software the easiest thing to do was to upgrade him to version 5.3 using the patch. [216] At this stage the Cownies had been asked for, and refused to provide, copies of technical support records held in the MRS database. This made it particularly difficult for Helastel to be sure that students asking for support that were customers of our client companies, rather than our own students, were actually legitimate customers. One measure of protection was to ask for the ‘disc number’, a unique number marked on each DVD case. [217] As to the acts complained of by the Defendants in this part of the matter which are specified in paragraph 60 of the Defence and Counterclaim. The Defendants complain first in paragraph 60 that: “Further or alternatively, from a date presently unknown to the Defendants, but prior to about July 2011, the Claimant published a patch for ATPL Digital 5.3 which allows the software to run without the First Defendant’s licence key, which would normally be required and which is provided to licensed users by the First Defendant. The said patch has been made available by the Claimant by email, and by publication at www.atpforum.eu, together with instructions for applying the patch. Such acts constitute a flagrant infringement of the right ins.296 Copyright, Designs and Patents Act 1988 (circumvention of a technical device), and also amount to a criminal offence unders. 296ZB Copyright, Designs and Patents Act 1988 .” [218] We certainly published a patch for ATPL Digital 5.3 and published it in the manner specified but Graham had told me in his email of July 2009 that we now share (in proportions yet to be calculated) the IPR in ATPL Digital - the shell application and I relied on that statement. Because of it I believed that BGS was just as entitled as IDC was to publish a ‘patch’ for the program for the purposes of technical support, the First Defendant having previously withdrawn technical support without notice and in breach of clause 10.1 of the Agreement of 2001. [219] The Defendants continue paragraph 60 with an alternative pleading: “Further or alternatively, the Claimant has published on the said forum a “cracked” version of ATPL Digital 5.3 which amounts to a further infringement of copyright in the source codes for ATPL Digital 5.3, and in the Flash code therein, further circumvention of technical devices and technological measures, and further criminal offences”
“by11 September 2007 all the code contained within the MRS Server, MRS Client and the ATPL Digital applications had been written by Mr Kevin Brown” and Kevin Brown was a contractor to ATPL Online Limited, not to the Defendants. [221] The Claimant’s actions with respect to ATPL Digital 5.3 caused the 1st Defendant no damage and no pecuniary advantage was obtained by the Claimant. Their purpose was merely to mitigate the damage being caused to us by Graham and Jill’s actions …”
“[1] It is frequent in matrimonial disputes for one party (in this case the wife) to suspect that the other party is about to destroy documents, or conceal information which is, or may be, relevant to the proceedings, and to do so with a view to preventing her from obtaining from the court the financial provision to which she claims to be entitled. While the law provides for court orders to be made for the preservation and obtaining of evidence for the purpose of future legal proceedings, claimants, or potential claimants, sometimes resort to measures of self-help, by copying, seizing, or attempting to access digital copies of documents. The other party in such a case, in this case the husband, has rights, including privacy, confidentiality and legal professional privilege, in relation to relevant documents. The rights of privacy and confidentiality (but not any right of privilege) may be overridden by the competing public interest that any trial should be conducted on full evidence where the documents are relevant. But unless a document or information is relevant to the actual or intended proceedings in question, the rights of privacy and confidentiality will not be overridden at the instance of the potential or actual claimant, here the wife. These measures of self-help therefore give rise to legal difficulties. [2] The difficulties that measures of self-help give rise to in this context include the danger that the husband's rights will be overridden, when they would not be overridden if the matter had been the subject of an application for a preservation or search order made to the court. Rights of confidentiality, and legal professional privilege, have long been protected by the common law. Measures of self-help could in the past involve the commission of civil wrongs, such as trespass, breach of confidence and breach of copyright. In the last 20 years or so the legal protection of information has been greatly increased. This has in large measure been in response to the development of computers and their use for word processing and sending of electronic messages. The amount of information that can be stored on a laptop is vast, and techniques for copying are quick and simple for experts. So the potential fruits of self-help are of a different order from those of former days. These developments have given rise to the question of the extent to which measures of self-help are also in breach of the criminal provisions of the law designed to protect the databases contained in digital form in computers.”
“[90] … where, as in this case, information is surreptitiously downloaded from a computer, there may also be criminal offences under theComputer Misuse Act 1990 … [91] On behalf of Mr Imerman, it is contended that, in addition to infringing his rights of confidence, the defendants, or some of them, in accessing his computer records without his consent, … committed crimes under the provisions of the 1990 Act …”
“[92] Section 1(1) of the 1990 Act provides that it is an offence for a person to "cause ... a computer to perform any function with intent to secure access to any program or data held in any computer", where "the access ... is unauthorised" and "he knows at the time .... that that is the case". By virtue of section 17(2), securing access includes taking copies of any data, or moving any data "to any storage medium", or using such data. Section 17(8) provides that an act is "unauthorised, if the person doing [it] ... is not [and does not have the authority of] a person who has responsibility for the computer and is entitled to determine whether the act may be done". [93] On the basis of the arguments that have been, relatively briefly, presented to us on the issue, there does seem to be a real possibility that those defendants responsible for accessing Mr Imerman's computer records stored on the server in early 2009 were guilty of an offence under section 1 of the 1990 Act. There may conceivably be a defence based on the proposition that they believed that they had (or that they actually had) authority to access Mr Imerman's documents stored on server, within the meaning of the Act, because they had, to his knowledge, physically unrestricted access to the server. [94] It is, in principle, undesirable and, in practice, difficult to make an unambiguous finding, at an interlocutory stage in civil proceedings, as to whether or not a crime was committed. In addition, even if it was established that a crime has been committed, it by no means necessarily gives rise to a civil cause of action. Accordingly, at this stage, while we properly can, and do, conclude that there is a real possibility that an offence under the 1990 Act was committed when Robert Tchenguiz obtained copies of Mr Imerman's documents downloaded from the server in early 2009, it is not possible and not necessary to reach a final conclusion on that issue …”
“[105] So far as concerns a claim in tort, and leaving aside all questions of copyright, it would seem that where confidential papers are surreptitiously copied, even in situ, without the knowledge of the owner, the inevitable if minimal asportavit may give rise to an action in trespass to goods … It is also clear that in some cases the conduct may amount to the tort of conversion … There is, however, no need for us to explore these questions any further ... We have been invited to proceed, and agree that we can proceed, on a much narrower front, by reference to the equitable principles exemplified by such cases as Lord Ashburton v Pape[1913] 2 Ch 469 .”
“[107] Are the courts to condone the illegality of self-help consisting of breach of confidence (or tort), because it is feared that the other side will itself behave unlawfully and conceal that which should be disclosed? The answer, in our judgment, can only be: No. [117] … The tort of trespass to chattels has been known to our law since the Middle Ages and the law of confidence for at least 200 years, yet no hint of any defences of the kind now being suggested is to be found anywhere in the books. Self-help has a narrow and jealously policed role to play, for example, in the form of the right in certain circumstances to abate a nuisance, but it is far too late to suggest that self-help should be extended into the territory we are here concerned with. After all, legislative prohibition of self-help, enforced with criminal penalties, dates back to the Statute of Marlborough of 1267. Section 1, which is still on the statute book, after providing that "all persons, as well of high as of low estate, shall receive justice in the King's court", prohibits anyone taking "revenge or distress of his own authority, without award of the King's court" and provides for the punishment of offenders by fine. We do not suggest that this provision is directly applicable in a case such as this; rather we point to it as illustrative of the law's long-standing aversion to unregulated self-help. [128] … An important and relevant remedy for a wife, even though it seems to have fallen into desuetude in this area, is the court's power to grant search and seize, freezing, preservation, and other similar orders, to ensure that assets are not wrongly concealed or dissipated, and that evidence is not wrongly destroyed or concealed. Such orders are not infrequently sought, normally without notice, in the Queen's Bench Division and Chancery Division, where a claimant alleges, or has reason to believe, that, for instance, a defendant is seeking to make himself judgment-proof, has misappropriated money or other assets and is intending to conceal or dissipate the proceeds, has obtained confidential information from the claimant which he is intending to use, has articles which infringe the claimant's intellectual property rights, or (particularly germane here) has documents which are relevant to a dispute with the claimant which documents he intends to conceal or destroy ... [135] Of course, such orders, particularly search and seize orders, can be expensive to obtain and execute, and we accept that, particularly in cases where the amount at stake is not substantial, the cost-effectiveness, or proportionality, of seeking such an order may be questionable. But in many cases where a wife has reason to be concerned that her husband may be in the process of concealing assets or documents, or the like, seeking ex parte peremptory relief would be both appropriate and effective. It is the course almost routinely taken when a claimant, in a case involving commercial breach of confidence, passing off or breach of intellectual property rights, believes that the defendant is concealing or destroying infringing items, incriminating material or relevant documents … [136] Had that course been taken in this case, there would have been no question of any breach of confidence, tort, or statutory crime having been committed through accessing and copying Mr Imerman's electronic documents. So, too, there would have been no question of his rights of confidence being invaded … [Matters] would have been determined, supervised, regulated and approved by the court, and any such exercise, having been approved by the court, would be lawful, both in domestic law, and in the eyes of the Strasbourg Court: Chappell v United Kingdom(1989) 12 EHRR 1 . As pointed out by Tugendhat J in L v L[2007] EWHC 140 (QB) ,[2007] 2 FLR 171 , para [93], this would be far more satisfactory than an unauthorised, inequitable, tortious, and quite possibly criminal, accessing, copying, dissemination and proposed use, of the documents, as happened in this case from6 January 2009 .”
“The individual is expected to attain the standard which would be observed by an honest person placed in those circumstances. It is impossible to be more specific. Knox J captured the flavour of this, in a case with a commercial setting, when he referred to a person who is "guilty of commercially unacceptable conduct in the particular context involved": see Cowan de Groot Properties Ltd v Eagle Trust plc[1992] 4 All ER 700 , 761. Acting in reckless disregard of others' rights or possible rights can be a tell-tale sign of dishonesty. An honest person would have regard to the circumstances known to him, including the nature and importance of the proposed transaction, the nature and importance of his role, the ordinary course of business, the degree of doubt, the practicability of … proceeding otherwise and the seriousness of the adverse consequences to [the rights or interests of others]. The circumstances will dictate which one or more of the possible courses should be taken by an honest person … Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct. Likewise, when called upon to decide whether a person was acting honestly, a court will look at all the circumstances known to the third party at the time. The court will also have regard to personal attributes of the third party, such as his experience and intelligence, and the reason why he acted as he did.”
“I would be shocked. There was an element of trust here. But I did not do that to them either”. (iv) It is clear from the judgment in the YSP case (at [135]-[140]) that good faith extends beyond, but at the very least includes, the requirement of honesty. (v) The relevant test is that of conduct that would be regarded as “commercially unacceptable” by reasonable and honest people in the particular context involved: that this is the test for dishonesty appears from Royal Brunei Airlines Sdn v Tan[1995] 2 AC 378 , and Beatson LJ appears to have used the same test for good faith more generally in the Mid Essex case at [150]. (vi) The decision of the Court of Appeal in Imerman v Tchenguiz (a) reflects the general antipathy of the law to unregulated self-help, for strong and obvious practical and policy reasons, (b) supports the view that although the commission of a crime may not give rise to any civil remedy, in the event that the self-help in question involves committing a crime, or even gives rise to a real possibility that a crime has been committed, this is not irrelevant when deciding whether that self-help should be condoned, and (c) supports Mr Onslow’s submission that, if Mr Whittingham had concerns as to what IDC was doing or threatening to do, BGS’s proper course was to seek relief from the court – this would have protected IDC’s rights, and protected BGS against accusations of wrongdoing. (vii) While I am loathe to decide, even to the civil standard, and even following a full trial in which a decision was taken not to invoke a claim to privilege against self-incrimination, whether any crime has been committed, it seems to me that (a) on his own evidence, Mr Whittingham caused IDC’s computer to perform functions with intent to secure access to at least some data (i.e. animations) that was, and that he knew to be, unauthorised, and (b) accordingly, all the elements of the offence undersection 1 of the Computer Misuse Act 1990 are made out. (viii) There was no breach of section 296 of the CDPA for the reasons submitted by Mr Hicks. (ix) Further, I am not satisfied that the claim for breach of confidence is made out, or, if it is, that it adds anything to IDC’s other grounds of complaint. Both on IDC’s pleaded case and in argument, the breach of confidence is said to arise from the alleged “hacking”
“[5] Boston Deep Sea Fishing is a leading authority for some of the basic principles governing dismissal of an employee for gross misconduct: (a) where an employee is guilty of gross misconduct, he may be dismissed summarily, even before the end of a fixed period of employment; (b) dismissal may be justified by reliance on facts not known to the employer at the time of the dismissal, but only discovered subsequently, even after the proceedings began; and (c) the dismissed employee is not entitled to any wages or salary for the broken period of employment immediately preceding his dismissal, because his entitlement had not accrued by then.”
“[39] The general law did not release the company from its contractual liability on the only ground relied on by the company in this action, namely that it acquired knowledge after it had terminated the contract under clause 11.5, which would have entitled it to terminate it outside that clause and summarily without liability for pay in lieu. Boston Deep Sea Fishing and Ice Co v Ansell(1888) 39 Ch D 339 did not go as far as to say that after-discovered misconduct provided an employer with a defence to an action for payment of an accrued debt. The principle for which that case stands is that an employer can defend a claim for damages for wrongful dismissal by using at trial, in its defence of justification, evidence of misconduct by the employee that was not known to the employer at the time of dismissal. In this case the company was not seeking in the proceedings to justify its dismissal of Mr Cavenagh.”
“[44] It must be borne in mind that all that is required for acceptance of a repudiation at common law is for the injured party to communicate clearly and unequivocally his intention to treat the contract as discharged: see Vitol SA v Norelf Ltd[1996] AC 800 , 810G–811B, per Lord Steyn. If the contract and the general law provide the injured party with alternative rights which have different consequences, as was held to be the case in Dalkia Utilities Services plc v Celtech International Ltd[2006] 1 Lloyd's Rep 599 , he will necessarily have to elect between them and the precise terms in which he informs the other party of his decision will be significant, but where the contract provides a right to terminate which corresponds to a right under the general law (because the breach goes to the root of the contract or the parties have agreed that it should be treated as doing so) no election is necessary. In such cases it is sufficient for the injured party simply to make it clear that he is treating the contract as discharged … If he gives a bad reason for doing so, his action is none the less effective if the circumstances support it. That, as I understand it, is what Rix LJ was saying in Stocznia Gdanska SA v Latvian Shipping Co[2002] 2 Lloyd's Rep 436 , para 32, with which I respectfully agree.”
“Was it an infringement of copyright or misuse of confidential information to download the materials from IDC’s system in 2009?”
“Does the “patch” in relation to ATPL Digital 5.3 amount to a breach ofsection 296 of the Copyright, Designs and Patents Act 1988 ?”