“[T]o accept that the functionality [as opposed to the source and object code, for example] of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.” “… [T]he main advantage of protecting computer programs by copyright is that such protection covers only the individual expression of the work and thus leaves other authors the desired latitude to create similar or even identical programs provided that they refrain from copying.”
“54. By purporting to agree to the terms of the L.E. License Agreement when it had no present intention to comply with those terms, WPL fraudulently obtained access to the SAS Learning Edition in a manner which, among other things, failed to result in the creation of a meeting of the minds necessary to form an agreement. WPL’s putative assent to the terms of the LE License Agreement, through the actions of its individual employees and/or agents when it had no intention of abiding by those terms, was a false representation or concealment of a material fact, reasonably calculated by WPL to deceive and made by it with an intent to deceive. It did, in fact, deceive SAS and has resulted in injury to SAS inasmuch as WPL’s use of the fraudulently obtained SAS Learning Edition software allowed WPL to develop its competing WPS software.”
“nemo debet bis vexari pro una et eadem causa”: as it was put by Lord Diplock in Vervaeke v Smith[1983] AC 145 at p.160A-B, G. A more modern version was given by Lord Bingham in Johnson v Gore Wood[2002] 2 AC 1 at p.31A-B in the context of the Henderson doctrine: “Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.”
“…While the exact relationship between the principle expounded by Sir James Wigram V-C [in Henderson] and the defences of res judicata and cause of action and issue estoppel may be obscure, I am inclined to regard it as primarily an ancillary and salutary principle necessary to protect the integrity of those defences and prevent them from being deliberately or inadvertently circumvented… …they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation.”
“… There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”
“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue.”
“(1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”
“… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points on which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time …”
“The rule in Henderson v Henderson … requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the courts so that all aspects of it may be finally decided…once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion, but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.”
“These are illustrations of the principle of abuse of process. Any such abuse must involve something which amounts to a misuse of the litigational process. Clear cases of litigating without any honest belief in any basis for doing so or litigating without having any legitimate interest in the litigation are simple cases of abuse. Attempts to relitigate issues which have already been the subject of judicial decision may or may not amount to an abuse of process. Ordinarily such situations fall to be governed by the principle of estoppel per rem judicatam or of issue estoppel (admitted not to be applicable in the present case). It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse.”
“It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 …. While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression. In Brisbane City Council v Attorney General for Queensland[1979] AC 411 , 425 Lord Wilberforce explained that the true basis of the rule in Henderson v Henderson 3 Hare 100 is abuse of process and observed that it “ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation”
“It may very well be, as has been convincingly argued … that what is now taken to be the rule in Henderson v Henderson [(1843) 3 Hare 100] has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: …. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. ….”
“46 - Although a deceit claim could have been introduced by the Club alongside the negligence claim before the trial of that claim, it cannot properly be said that such a deceit claim should have been so introduced – i.e. on pain of losing any later opportunity to plead a case in deceit, no matter what further evidence pertaining to fraud might emerge. The pleading of fraud or deceit is a serious step, with significance and reputational ramifications going well beyond the pleading of a claim in negligence. Courts regard it as improper, and can react very adversely, where speculative claims in fraud are bandied about by a party to litigation without a solid foundation in the evidence. A party risks the loss of its fund of goodwill and confidence on the part of the court if it makes an allegation of fraud which the court regards as unjustified, and this may affect the court's reaction to other parts of its case. Moreover, as Birss J observed in Property Alliance Group v Royal Bank of Scotland[2015] EWHC 3272 (Ch) at [40], allegations of fraud "can cause a major increase in the cost, complexity and temperature of an action." For these reasons parties are well-advised, and indeed enjoined according to usual pleading principles, to be reticent before pleading fraud or deceit. Although the Club could have pleaded deceit before trial of the negligence claim, in my view it behaved reasonably and entirely properly in deciding not to do so on the speculative and inferential basis which would have been necessary at that stage.”
“… By purporting to agree to the terms of the [Learning Edition] Licence Agreement when it had no present intention to comply with those terms, WPL fraudulently obtained access to the [Learning
“Under North Carolina law, a party can establish a claim for fraud by showing a (1) false representation or concealment of a past or existing material fact, (2) reasonably calculated to deceive, (3) made with the intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the other party. … Thus, the plaintiff must show that the defendant made the false representation with the intention that it should be acted upon by the plaintiff, and that the representation was reasonably relied upon by the plaintiff.”
“Fraud generally requires that the misrepresentations or omissions at issue relate to facts and not opinions, sales talk, or promissory statements. … (“As a general rule, a mere promissory representation will not be sufficient to support an action for fraud.”) … a “promissory misrepresentation may constitute actionable fraud when it is made with intent to deceive the promise, and the promisor, at the time of making it, has no intent to comply."”
“Here, plaintiff’s fraud claim is based on an alleged duty owed to the defendant – not to deceive plaintiff into providing it access to the Learning Edition software – that is separate and distinct from any duties it owed plaintiff under the license agreement for the Learning Edition software. Moreover, the claim involves the aggravating element of fraud. In sum, the alleged damages plaintiff suffered as a result of defendant’s alleged fraud do not all flow solely and directly from defendant’s alleged breach of the license agreement, but are separate and independent from the breach.”
“[B]y purporting to agree to [the terms of the Learning Edition License Agreement] when it had no present intention to comply with [those terms], WPL fraudulently obtained access to the SAS Learning Edition in a manner which, among other things, failed to result in the creation of a meeting of the minds necessary to form an agreement. WPL’s putative assent to [the terms of the Learning Edition License Agreement], …. when it had no intention of abiding by [those terms], was a false representation or concealment of a material fact, reasonably calculated by WPL to deceive and made by it with an intent to deceive. It did, in fact, deceive SAS and has resulted in injury to SAS inasmuch as WPL’s use of the fraudulently obtained SAS Learning Edition software allowed WPL to develop its competing WPS software.”
“what and where were the relevant terms of the contract contained in the Learning Edition License Agreement?”
“WPL … agreed to abide by the terms of [the LE License Agreement …. WPL has failed to comply with the terms of the LE License agreement.”
“the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which he judged to be reasonably credible and which appeared to justify the allegation”
“ …as a matter of justice, there is much to be said for the opinion so expressed by Spencer Bower and Turner ; and, especially since Arnold v. National Westminster Bank Plc. [1991] 2 A.C. 93, in which your Lordships' House evinced a readiness to adopt a less technical approach than has been adopted in the past to this most technical subject, it may very well be recognised that what Spencer Bower and Turner call a cross-estoppel may be pleaded in answer to a plea of estoppel per rem judicatam. Moreover such an approach appears to be consistent with the view of Spencer Bower and Turner, at p. 13, that the principle of estoppel per rem judicatam is no more than a rule of evidence … I strongly suspect that, in practice, the point seldom arises, except where in litigation the principle of estoppel per rem judicatam is not invoked and the party who might have taken it but does not do so thereby waives his right to rely upon it; and that this is the explanation for the dearth of authority on the matter.”
“Republic of India v. India Steamship Co. Ltd. was, of course, a case where a foreign judgment was founded on as creating a bar per rem judicatam to proceedings in England by a plaintiff relying on the same cause of action. But similar principles must fall to be applied where the domestic court is dealing with two competing foreign judgments. If there are circumstances connected with the obtaining of the second judgment which make it unfair for the party founding on the first to seek to enforce it, then it may be proper to refuse to allow him to do so. It is not alleged by the respondent in the present case that there are any such circumstances here…. …..the court will not refuse to set aside the registered judgment unless there exists some good ground for so refusing. Such grounds would no doubt be present if the earlier judgment was vulnerable to impeachment by virtue of one of the matters specified in article 6(1)(a), or if there were present an estoppel by representation the possibility of which was recognised in Republic of India v. India Steamship Co. Ltd. [1993] A.C. 410.”
“where an estoppel per rem judicatam meets and estoppel by representation”
“A foreign judgment is impeachable on the ground that its enforcement or, as the case may be, recognition, would be contrary to public policy.” b) Briggs Civil Jurisdiction and Judgments, 5th ed. 7.72: “If its recognition would conflict with English public policy, a foreign judgment will not be recognised as res judicata in England.”
“…In general, foreign judgments which enforce contracts which an English court would have found to be illegal or contrary to public policy are unlikely to be recognised, for it cannot be right that on such fundamental questions the policy of English law can be circumvented by first obtaining a foreign judgment. No doubt judgments ordering the payment of bribes or kidnappers’ ransoms will be refused recognition in England on grounds of public policy ... The broad point must be that if the judgment is based on a cause of action which could itself be contrary to English public policy, recognition will be refused.”
“ 50 The Court observes that, from the wording of that provision, it is clear, first, that a licensee is entitled to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program. 51 In this respect, Article 5(3) of Directive 91/250 seeks to ensure that the ideas and principles which underlie any element of a computer program are not protected by the owner of the copyright by means of a licensing agreement. 52 That provision is therefore consistent with the basic principle laid down in Article 1(2) of Directive 91/250, pursuant to which protection in accordance with that directive applies to the expression in any form of a computer program and ideas and principles which underlie any element of a computer program are not protected by copyright under that directive. 53 Article 9(1) of Directive 91/250 adds, moreover, that any contractual provisions contrary to the exceptions provided for in Article 5(2) and (3) of that directive are null and void.”
“3. The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.” v) Article 9 of the Software Directive (headed “Continued application of other legal provisions”) provides for the interrelationship between the Directive and areas of the law not covered by it. Article 9(1) provides that: “1. The provisions of this Directive shall be without prejudice to any other legal provisions such as those concerning patent rights, trade-marks, unfair competition, trade secrets, protection of semiconductor products or the law of contract. Any contractual provisions contrary to… the exceptions provided for in Article 5 (3) shall be null and void.”
“If a judgment is pronounced by a foreign Court over persons within its jurisdiction and in a matter with the propriety of the proceedings in the foreign Court, English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice Where no substantial justice, according to English notions, is offended, all that English Courts look to is the finality of the judgment and the jurisdiction of the Court. If the court had jurisdiction in this sense and to this extent, the courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed.”
“(1) A judgment to which this section applies shall not be registered underPart II of the Administration of Justice Act 1920 orPart I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 and no court in the United Kingdom shall entertain proceedings at common law for the recovery of any sum payable under such a judgment. (2) This section applies to any judgment given by a court of an overseas country, being— (a) a judgment for multiple damages within the meaning of subsection (3) below; (b) a judgment based on a provision or rule of law specified or described in an order under subsection (4) below and given after the coming into force of the order; or (c) a judgment on a claim for contribution in respect of damages awarded by a judgment falling within paragraph (a) or (b) above. (3) In subsection (2)(a) above a judgment for multiple damages means a judgment for an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by the person in whose favour the judgment is given.”
“… the Court finds that a clear demarcation between compensatory and non-compensatory damages will aid in the execution of this judgment. Under Section 5 of the United Kingdom Protection of Trading Interests Act of 1980, “no court in the United Kingdom shall entertain proceedings at common law for the recovery of any sum payable” under a judgment “for multiple damages”… “Multiple damages” includes a “judgment for an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by a person in whose favour the judgment is given.”
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the jury finds the defendant World Programming Limited fraudulently induced plaintiff SAS Institute, Inc. to enter into the SAS Learning Edition License Agreement; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the jury finds that defendant World Program [sic] Limited’s fraudulent conduct was in or affecting commerce and such conduct was a proximate cause of plaintiff SAS Institute Inc.’s injury, in violation of North Carolina’s Unfair Deceptive Trade Practices Act, N.C. Gen Stat. §75-1.1; IT IS FURTHER ORDERED ADJUDGED AND DECREED that plaintiff shall have and recover the sum of…$26,376,635.00 in compensatory damages on its fraudulent inducement to contract claim, and the sum of$26,376,635.00 in compensatory damages on its claim for violation of North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. §75-1.1. Where each award of damages arises from the same injury, plaintiff shall be entitled to collect$26,376,635.00 only once. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that interest shall be at the legal rate, accruing from October 16, 2015 until paid; IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that plaintiff shall have and recover the additional sum of$52,753,270.00 on its claim for violation of North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. §75-1.1, which sum, in addition to the compensatory amount specified above, represents the trebling of plaintiff’s damages as required by law, N.C. Gen. State §75-16. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that interest shall be at the legal rate, accruing from
“By section 5 no foreign judgment is enforceable in this country inter alia if it is a judgment for multiple damages. This is aimed directly at judgments in antitrust actions and goes to the whole of the judgment not merely the multiple or penal part of it.”
“In my view, the proper approach to the 1980 Act is to recognise that it represents a statutory exception to the broad principle of recognition and enforcement for foreign judgments observed for several centuries in this country under the common law, at first in the name of comity, but later under the “doctrine of obligation” … Thus, the position is that, provided a foreign court has jurisdiction to give the judgment according to the English rules of conflict of laws, that judgment is conclusive in England, unless it is impeachable for reasons of fraud, public policy or the like.”
“ the same purposive reasoning leads to the conclusion that the genuinely compensatory elements of an award subject to multiplication should be equally recoverable… take a case like the present, where the claimant chooses to claim the benefits of multiplication. Why should that fact now deprive him of enforcing the genuinely compensatory element? The only reason for doing so would be to express disapproval, to the extent of removing what was otherwise a plain entitlement. That would in my view smack of a penalty, and would require clearer words than appear in the statute to justify its imposition. I do not think that the wording is sufficiently clear. The purpose of the Act is plainly to prevent something in the nature of a penalty (the multiple damages); it is not at all plain that that should be at the expense of imposing another one. I hold that it does not do so.”
“Section 5(1) is clear in its terms. It prohibits the statutory registration of a judgment which falls within s.5(2), or common law proceedings for the recovery of sums payable under such a judgment.”
"An Act to provide protection from requirements, prohibitions and judgments imposed or given under the laws of countries outside the United Kingdom and affecting the trading or other interests of persons in the United Kingdom."
“(1) This section applies where a court of an overseas country has given a judgment for multiple damages within the meaning of section 5(3) above against … (b) a body corporate incorporated in the United Kingdom … (…a “qualifying defendant”) and an amount on account of the damages has been paid by the qualifying defendant … to the party in whose favour the judgment was given … (2) … the qualifying defendant shall be entitled to recover from the party in whose favour the judgment was given so much of the amount referred to in subsection (1) above as exceeds the part attributable to compensation; and that part shall be taken to be such part of the amount as bears to the whole of it the same proportion as the sum assessed by the court that gave the judgment as compensation for the loss or damage sustained by that party bears to the whole of the damages awarded to that party.”
“a judgment for an amount arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damage sustained by the person in whose favour the judgment is given.”
“…gives the qualifying defendant the right to recover against the party in whose favour the judgment was given, in effect, that part of any sum paid which represents the excess over compensation. In antitrust actions therefore, a qualifying defendant is entitled to recover against the plaintiff two-thirds of any amount which he may have paid.”
“s.6 enables a defendant, such as a citizen of the United Kingdom or a person carrying on business in the United Kingdom, who has paid multiple damages, to recover from the payee by legal process in the United Kingdom the excess over what would have been compensatory damages.”