“4. In 2009 Mr Mitchell created the Software to help himself with options trading. The Software displays financial information about the performance of options in the market. It takes live (or historic) market data and presents it in the form of a table of “call” and “put” positions. These are displayed side by side with a graph showing the “risk profile”. 5. The two men went into business together in 2010/2011, setting up the LLP and entering into a suite of licence and partnership agreements. At a high level, the business model was that Mr Mitchell and his company, [THJ], would provide the Software for Mr Sheridan and his company, [SOM], to use in his mentoring business. In exchange, Mr Sheridan would advertise and promote the Software to his students and mentees. 6. The parties fell out in 2014/2015. Mr Mitchell sought to expel Mr Sheridan from the LLP, raising a wide range of complaints about alleged serious and persistent breaches of the parties’ agreements. The Claimants also terminated the Defendants’ licence to use the Software, and brought claims in passing-off and copyright infringement concerning alleged use of the Software by the Defendants after termination.”
“Mr Sheridan and SOM acted in breach of their respective obligations under the LLP Agreement and the SOM Software Sub-Licence Agreement between20 January 2010 and25 January 2016 by: a. Failing to advertise the Software in the stipulated manner (‘the Software Advertising Breaches’); b. Failing to ensure that appropriate copyright marks as set out in the SOM Software Sub-Licence Agreement and the THJ Software Licence Agreement were displayed in educational material produced or participated in by the Defendants including website content, webinars seminars and presentations containing images of the Software (the ‘Copyright Notice Breaches’);”
“4. It is declared that copyright subsists in the risk and price charts produced by the Software, an example of which is reproduced in the Annex to this Order, (the “Risk and Price Charts”) as graphic works withinsection 4(1)(a) of the Copyright, Designs and Patents Act 1988 of which Andrew Mitchell is the author and that such copyright is owned by the First Claimant. 5. It is declared that the two instances of display of the Risk and Price Charts particularised in paragraphs 40.1 and 40.2 of the Re-Re-Re-Amended Particulars of Claim constituted an infringement of the First Claimant’s copyright in the Risk and Price Charts.”
“By letter dated28 January 2016 , Browne Jacobson LLP identified at least seven occasions on which SOM continued to use images generated by the Software after termination of the SOM Software Sub-Licence Agreement on25 January 2016 without the licence of the Claimants or either of them. SOM was requested to cease and desist from activities previously authorised by the sub-licence and return copies of the Software in its possession. By way of example only, the Software and images generated by the Software were used in: 40.1. A presentation published on YouTube on27 January 2016 ; 40.2. An Earnings class hosted on Mr Sheridan’s website on27 January 2016 . Mr Sheridan’s presentation entitled, “Learn how to Trade Earnings: Understanding Greeks and Volatility around Earnings”, did not display the copyright mark on slides which contained images of the Software (pages 3, 5, 7,10, 11, 12, 13, 14 and 15) or on the slide which advertised the Software (page 16). The appropriate copyright mark was not used on other slides of the presentation, which instead used the mark “© THJ System Ltd” in obscured and illegible script (pages 4, 6 and 8).”
“‘…then the Defendants will be debarred from relying on any points of defence, disclosure, factual and/or expert evidence and/or otherwise defending the Advertising Breaches Inquiry and theCopyright Infringement Inquiry and the Defendants shall only be entitled to put the Claimants to proof on any points of claim in such Inquiries.’”
"Subject of course to its precise terms, a debarring order extinguishes any right the debarred defendant would otherwise have to participate in any way in the determination of all the issues which fall for determination at that trial". ii) If an order debars a defendant from defending the proceedings (like the one here), at the trial the defendant should not be permitted to adduce evidence, cross-examine the claimant's witnesses, or make submissions in defence of the claim. iii) Moreover, the defendant will usually be prevented not just from advancing a positive case, but also from making any submissions that challenge the claimant's case. In Michael v Phillips, Soole J at [19] rejected a submission to the contrary by counsel for the defendant: "
"In my judgment, there is no good reason to draw a distinction between issues of liability and quantum. The order debars the first and second defendants from defending the claim. A claim involves issues of both liability and quantum. I can see no principled distinction between the two. In some cases the issues of liability may be relatively straightforward whereas the issues of quantum are extremely complicated. It would not make sense if, notwithstanding a debarring order the defendant was nonetheless able to participate in what was really the meat of the claim". v) There appears to be a narrow, residual discretion or trial management power to permit a debarred defendant to take some part in the relevant proceedings. For example, if a debarred defendant considers that a judge is proposing to grant excessive relief based on a misunderstanding of the scope of the claim, the defendant may seek and potentially be granted permission to make submissions on the limited issue of the extent of the pleaded claim; similarly a debarred defendant should normally be able to address the court on the form of order to be made after the substantive decision on the trial has been made, and on the costs of the proceedings. vi) The court may also have regard to the nature of the pleaded defence of the debarred defendant for the purposes of understanding the nature and extent of the relevant claim. Indeed, to adopt the phrase adopted by Tomlinson LJ in the second decision of the Court of Appeal in Thevarajah, "
“142. I therefore accept the Claimants’ submission that, as at23 December 2015 , the failure to advertise the ONE software was: (i) A serious breach of clause 15.2.5 of the LLP Agreement which robbed THJ of a benefit it reasonably expected to receive under the LLP Agreement. (ii) A persistent breach which could not be remedied. (iii) A breach which was capable of being a ground for expulsion.”
“Mr Mitchell’s evidence in cross-examination was measured and precise. He answered the questions put to him by Mr Greager in a straightforward way without evasion or straying over into arguing the case. Mr Mitchell was very familiar with every detail of the case and every document.”
“In my opinion the assumptions which underlie the subscriber shortfall between 2010 and 2023 are reasonable and supported by the evidence provided in Mr Mitchells’ witness statement.”
“In my opinion the calculation of loss of£6,733,106 based on the assumptions outlined for subscriber growth is reasonable.”
“I consider that the authorities establish the following propositions. (a) The fact and, if so, the extent of the diversion of staff time have to be properly established and, if in that regard evidence which it would have been reasonable for the claimant to adduce is not adduced, he is at risk of a finding that they have not been established. (b) The claimant also has to establish that the diversion caused significant disruption to its business. (c) Even though it may well be that strictly the claim should be cast in terms of a loss of revenue attributable to the diversion of staff time, nevertheless in the ordinary case, and unless the defendant can establish the contrary, it is reasonable for the court to infer from the disruption that, had their time not been thus diverted, staff would have applied to activities which would, directly or indirectly, have generated revenue for the claimant in an amount at least equal to the costs of employing them during that time.”
“In that in the present case the diversion of the time of a significant number of the claimants’ employees, particularly their senior employees was set out in detail and adequately established, an in that there could be no sensible challenge to the conclusion that their business was thereby disrupted, indeed substantially so, I consider that the judge was entitled to draw the inference that the employees had been diverted from revenue-generating activities; and accordingly I see no error in his allowance within the damages for the costs of the employees referrable to the diversion.”
“THJ claims payment equivalent to its lost management time of 149.9 days to date and continuing (as recorded and calculated by Andrew Mitchell), resulting from the Defendants’ breaches of the Agreements. Management time has been calculated at the rate of£450 per day, amounting to at least£82,457.00 to date.£450 per day is the rate at which THJ typically charged Mr Mitchell’s services to clients prior to the inception of the LLP, and is the rate at which THJ’s services have been charged to the LLP for modifications to the ONE Software. The Claimants reserve the right to serve a more detailed schedule of loss.”
“(i) The award is discretionary, and there must normally be some special circumstances to justify them, such as profit: Pro Sieben Media AG v Carlton UK Television Ltd[1998] FSR 43 at [61] (Laddie J); ii) Flagrancy normally involves a calculated infringement. It need not be dishonest, but should be outside the norm: Ravenscroft v Herbert[1980] RPC 193 at 206, and New English Library Limited[1980] RPC 192 at [206] (Brightman J); iii) For this purpose, the infringement can either be reckless or deliberate, and a "couldn't care less" attitude will suffice: Nottinghamshire Healthcare National Service Trust v News Group Newspapers Ltd[2002] RPC 49 , at [52] and [54] (Pumphrey J); iv) Given the breadth of the discretion, all the circumstances should be considered: the court is also permitted to take into account other factors, such as injury to pride and dignity, distress, etc: Nottinghamshire v NGN at [33]; v) Where the defendant has been pursuing a profit, additional damages can take account of any benefit by the defendant: Nottinghamshire v NGN; vi) Another relevant factor is whether a defendant has attempted to destroy evidence of infringement: Nottinghamshire v NGN; vii) Also relevant are any attempts by the defendant to conceal the infringement through disingenuous correspondence: Peninsular Business Services Ltd v Citation plc[2004] FSR 17 .”
“287. Mr Sheridan’s performance as a witness was less impressive. His demeanour throughout was of someone who was somewhat distracted. He gave the impression of detached from many the events in question. It would be going too far to say he was evasive during cross-examination but he was very wary of even the simplest question and insisted on reading every e-mail or other document put to him very carefully before answering. He seemed unfamiliar with even the basic documents in the case such as the LLP Agreement itself and the pleadings. 88. To give one example, when Mr Sheridan was asked whether the reason why there was a shortfall in the overall number of webexes delivered was because Mr Mitchell had insisted that there should be no catch-ups, Mr Sheridan’s response was that he did not recall any such statement by Mr Mitchell. When he was taken to paragraph 11 of the Re-Re Amended Defence which contained this very allegation and to the statement of truth signed by him, he performed a volte face and unconvincingly said: “OK. I recall him saying this”. 89. His recollection of why certain things happened the way they did was generally very poor. His evidence was clearest when answering questions in general terms about how SOM operated.”