Ogunkoya v Harding [2017] EWHC 470 (IPEC)

Case No IP 2016 000152[2017] EWHC 470 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Venue Rolls Building, 7 Rolls BuildingsDate 10 th March 2017
London EC4A 1NL
Before
Miss Recorder Amanda Michaels
Between
ADENIKE OGUNKOYAClaimantCHARLES HARDINGDefendant
Miss Ogunkoya in person for in personMr Christopher Jacobs (instructed on direct professional access) for DefendantHearing Hearing dates: Tuesday 17 and Thursday 19 January 2017
JUDGMENTMiss Recorder Amanda Michaels:
[1]The complaint in this case is of plagiarism - that in writing his book “The Fascinating History of My Liberated Ancestors” the Defendant made unlawful use of elements of 3 chapters of a book written by the Claimant called “A Hundred Years of Freedom: the Smith Sisters of Sierra Leone 1860-1960.”[2]For the reasons which I set out in detail below, I do not consider that the claim of plagiarism is made out, whether in terms of an infringement of copyright or a breach of confidence.

Background

[3]Miss Ogunkoya describes herself as a specialist in the history of the Creoles and their diaspora along the coast of West Africa and in the Western Hemisphere. She studied Modern European history and African history at Birkbeck and at the School of Oriental and African Studies at the University of London. Whilst she was in full-time employment she became interested in the extended Smith family of Sierra Leone. In particular, she became interested in the lives of five sisters born between about 1860 and 1871 in Freetown in Sierra Leone, who were the daughters of a Mr William Smith Junior, a senior civil servant in Freetown, and his second wife, Anne Spilsbury. William Smith Jr had also had seven children, including daughters, by his first marriage, however the Claimant uses the term “The Smith Sisters” to refer only to the five daughters of his second marriage. The extended Smith family were part of the Creole elite or beau monde of society of Sierra Leone in the 19th century, as is shown for instance by the wide press coverage of members of the family in newspaper articles shown to me in the course of the proceedings.[4]The Claimant explained how after some years collecting information about the Smith Sisters she lectured about them in London during Black History Month in October 2004 and October 2005. She then decided to write a book about the Smith Sisters, to be called “A Hundred Years of Freedom: the Smith Sisters of Sierra Leone 1860-1960.” Her evidence is that she carried out very extensive research about them in a number of archives over a lengthy period. She started work on her book in about 1999 and has continued with it to date. Unfortunately, in the mid-2000s the Claimant's health began to deteriorate and this slowed down her research considerably. She had to cease full-time work. However, she continued to work on the book when her health allowed. She has written several chapters of the book, but it was clear from her oral evidence that the book is not finished, indeed, she is not sure how many chapters the book will eventually have.[5]In the course of her researches, in about September 2009 the Claimant made contact with Mrs Christine Harding, who is the mother of the Defendant. Mrs Harding practised at the Bar in Sierra Leone from 1966 to 1994, and then in England from 1994 to 2004. She is now 86 years old. Mrs Harding is the great grand-daughter of Mary Davies, née Smith, who was a daughter of William Smith Jr by his first wife Charlotte Macaulay. Mary Davies was therefore an older half-sister of the Smith Sisters. The Claimant asked Mrs Harding to provide any information she had about the Smith Sisters or the wider family. Mrs Harding’s evidence was that she provided her with information about all of William Smith Jr’s children and their remoter descendants and sent her some family photographs. She said that much of the information she had about the family came from her own mother, some from a family friend, the late Dr Davidson Nicol (whose remarkable career is described in the Defendant’s book), and further information from a book which has some significance to this case: “An African Victorian Feminist – the Life and Times of Adelaide Smith Casely Hayford” written by Adelaide M. Cromwell (“the Cromwell book”). The Cromwell book was published first in hardback in 1986, with a revised paperback edition being published in 1992. Ms Cromwell is described on the cover of the paperback as Director Emerita of the Afro-American Studies Center at Boston University. The book is a biography of the fourth of the Smith Sisters, Adelaide (1868-1960), who amongst other things founded the Girls’ Vocational School in Freetown, Sierra Leone, at which Mrs Harding was a pupil from the ages of 4 to 9. In the preface, Ms Cromwell thanked Dr Davidson Nicol for his help with her book, and mentioned that he had known Adelaide Smith well.[6]In about 2010, the Claimant decided to fund her research by offering a copy of the first three chapters of the book (“the 3 Chapters”) to a number of people who had some connection with the extended Smith family. She asked them to pay £24 for the 3 Chapters. That sum was intended to reflect the likely sale price of the completed book, and the Claimant agreed with the recipients that once the book was published they would get a copy of it without having to pay more. It is not disputed that in June 2010 the Claimant offered the 3 Chapters to Mrs Harding on that basis. Mrs Harding said in evidence that she thought that the book would deal with her own direct ancestors and so was interested to see it. She agreed to purchase a copy and on paying £24 to the Claimant received a copy of the 3 Chapters from her in late June 2010.[7]The parties agree that Mrs Harding’s copy of the 3 Chapters bore the following statement at the beginning and at the end:
“towards the Leeward Coast is an extract from the book 100 years of Freedom: the Smith sisters of Sierra Leone 1869-1960. It is based on the first three chapters and is named after the third chapter of the book. It is mainly for the descendants and friends of the Smith family. It is not be copied in part or whole without the permission of the author Adenike F Ogunkoya.”
[8]The Claimant disclosed documents showing that the same statement was included on copies of the 3 Chapters sent to other recipients. She said that 7 or 8 people bought the 3 Chapters on this basis, including Mrs Harding's cousin, Mrs Elizabeth Williams.[9]The Claimant said that she imposed a further obligation upon the recipients of copies of the 3 Chapters. In the affidavit which she made on 3 October 2016 in support of her application for an interim injunction, discussed below, she said that she had "added in very clear print that the information was(a) not be copied in print or any other form and not to be copied in part or whole(b) not to be given to anybody including family members who were not residing at her address." By the time of the case management conference the Claimant said that she had realised that she had been mistaken about this, and in her Amended Claim Form the Claimant stated that the additional requirement in (b) had not been printed on the copies of the 3 Chapters. Instead, she had made an oral agreement with Mrs Harding (as with other recipients) that the copy was to remain in Mrs Harding's household and not be taken away by anybody, even family members, who were not living her household. Mrs Harding denied that there had been any such oral agreement.[10]I have seen two versions of the 3 Chapters, including a photocopy of the copy sent to Mrs Harding which was returned to the Claimant in the course of these proceedings. The chapters sent to Mrs Harding were, in essence, an advanced draft; it seems clear that the Claimant has continued to update and refine those chapters whilst continuing to work on her book since that time. A number of passages in the copy sent to Mrs Harding had been marked with a line down the side of the page in pen or pencil or are underlined. One of the issues between the parties is who made those marks upon Mrs Harding’s copy of the 3 Chapters.[11]The Defendant also qualified as a barrister. He practised first in Sierra Leone and later came to England where he became a solicitor and practised as such for nearly 20 years. He says that he had a long-standing interest in his family history and the history of Sierra Leone and in about July 2009 he started to research his own family history in earnest. At about that time he purchased a copy of the Cromwell book. This helped him to prepare a family tree which he presented to his mother on the occasion of her 80th birthday in November 2009. He said that he carried out some initial research about his grandfather's family (the Bostons) through the Church Missionary Society, and supported that claim by disclosing email correspondence from 2009 with the CMS.[12]The Defendant spoke to the Claimant by telephone and wrote to her in October 2012, hoping that she might be able to supply him with some information about the parents of Charlotte Macaulay (William Smith Jr’s first wife and thus the Defendant’s direct ancestor). However, this branch of the family was not of much interest to the Claimant and it seems that the matter was taken no further at that time.[13]The Defendant said that he pursued his research more assiduously following his father's death in 2014, when he closed his solicitor's practice and concentrated upon researching his book. There was some further contact between the parties by telephone in 2015; the Claimant said that Mr Harding asked if her book was ready. She had in the interim spoken to Mrs Harding, as she was embarrassed not to have provided her with the book as promised. It is common ground that Mr Harding did not inform the Claimant that he too was writing a book.[14]Mr Harding disclosed various documents which in my judgment clearly show that he carried out research in 2015, for example in newspapers and journals such as the Sierra Leone Weekly News (“SLWN”) and The Colony and Provincial Reporter. At various points in his book he quotes extensively from the SLWN. Mr Harding produced emails which show that on 5 November 2015 he sought permission from the British Library to quote from articles in those publications which related to his great-grandparents and maternal grandmother; similarly, in 2015 Mr Harding sought permission to use documents which he had found in the Cadbury Research Library at the University of Birmingham. Mr Harding also produced his expired reader’s ticket for the SOAS Library, where he said that he found useful documents such as copies of the West African Review. Mr Harding gave evidence that in 2015 he found William Smith Jr’s will in the archives in Jersey. This led to him to the 1881 census, another useful source of information, and to William Smith Jr’s grave on the island, which he later visited with his mother and other family members.[15]Mr Harding's book was published by Sondiata Global Media and has been available on Amazon since 26 August 2016. It is some 400 pages long and set out in 11 chapters, tracing Mr Harding’s ancestors broadly from the 1700s to the present day. The Claimant’s complaints relate to two chapters which deal with the Smith family, using that term in a broad sense to include various in-laws and relatives. The book contains a lengthy bibliography listing a wide range of sources, and Mr Harding acknowledges help which he had from numerous people. There is no mention of the Claimant or the 3 Chapters.[16]It appears that in late September 2016 the Claimant learned about Mr Harding’s book from an advertisement on Facebook. She spoke to a friend who told her that the author was Mrs Harding’s son and was surprised as he had not told her that he was writing a book. She also learned that he was intending to hold a party on 8 October 2016 to launch the book and got the impression that it had been arranged in some haste. This all aroused her suspicions. She got in contact with Mr Harding by e-mail and spoke to him on 28 September. Mr Harding's unchallenged evidence was that she told him that she would seek an injunction against him. It is clear that she immediately feared that there had been an infringement of her rights, even before seeing a copy of his book.[17]Miss Ogunkoya arranged to meet the Defendant on 29 September at Euston Station. She had sent him a text message saying that she was thinking of buying a copy of his book, and he brought a copy with him for her to purchase. After looking through it, she bought the copy. The parties gave conflicting accounts of that meeting. However, the Claimant’s evidence was that her immediate view, on seeing the Defendant’s book, was that Mr Harding had used the 3 Chapters as a shortcut to enable him to write it, she described it as like looking at her own work. She was particularly suspicious of what she saw as the unusual speed with which she thought Mr Harding had managed to produce the book and concluded that he must have copied her work.

The proceedings

[18]On 2 October 2016, the Claimant emailed the Defendant complaining that he had plagiarised her work. Mr Harding replied, refuting her claim. On 4 October, she issued proceedings against Mr Harding in the Edmonton County Court. She did not have the benefit of legal advice at the time. In the claim form she stated that "I would like the Court to decide that part of his book The Fascinating History of My Liberated Ancestors up to 45 pages is a plagiarisation of my book or the manuscript of my book "A Hundred Years of Freedom: the Smith Sisters of Sierra Leone 1860-1960" especially the part of his book that refers to the Smith Sisters, the Smith family and the Davies sisters, the half nieces of the Smith Sisters." She wished to prevent Mr Harding from launching his book on 8 October 2016 and to stop sales of the book altogether.[19]It appears that there was a hearing at the Edmonton County Court on 6 October 2016 and the case was transferred to this Court. The claimant sought an interim injunction at a hearing before Carr J on 7 October in the Chancery Division general list. The interim injunction was refused, but Carr J ordered the trial of the claim to be expedited and heard in November or December 2016 in the IPEC. The Claimant had originally identified 45 instances of alleged copying and Carr J ordered the Claimant to serve upon the Defendant by 1 November 2016 a list of 10 similarities relied on which were to be "representative of her case of copying and/or misuse of confidential information."[20]I gave directions at a case management conference on 3 November 2016 with a view to the trial being held at the end of November. The Claimant produced her 10 representative examples, evidence was exchanged and skeleton arguments were filed. Unfortunately, the Claimant became unwell and the trial was adjourned to January. It is clear to me that both sides would have wished to put in more evidence and disclose additional documents had it been possible to do so given the time constraints upon them. On the first day of the trial I gave permission for the Defendant to adduce some parts of an additional witness statement which he had produced in order to respond to some new points raised by the Claimant just before the original trial date. Otherwise, however, I was not prepared to permit the parties to raise new evidence at the trial, including matters raised (in the case of the Claimant) in her updated skeleton argument. Nine of the ten representative examples of plagiarism identified pursuant to Carr J’s Order were pursued and considered at trial.

The witnesses

[21]I heard oral evidence from three witnesses: the Claimant, the Defendant, and his mother, Mrs Christine Harding. Much of the Claimant’s evidence related to the substantial amount of research she had carried out for her book, and her allegations of copying. She is undoubtedly convinced that all of the similarities which she has identified between the Defendant’s book and the 3 Chapters show that Mr Harding had access to her work, copied it and made extensive use of it. She believes that Mrs Harding gave her copy to Mr Harding. She therefore regards their denials of copying as dishonest, and did not hesitate to say so in trenchant terms. Where the Defendant used the same sources that she did, she thought he had copied her work or used it as a short-cut, and where he cited different sources, she thought he had found them after she had identified her allegations of copying, possibly with third party help. I have no doubt that this reflects her honest opinion of the position, but in my judgment her conclusions are no more than surmise, which I need to test in the light of all of the evidence.[22]The Claimant considered that the Defendant had written his book with suspicious speed, and could only have done so by using her work. This in my judgment reflected the enormous amount of time which the Claimant herself appears to have spent on researching her subject, in part because (as she said) she had laboriously gone through contemporaneous documents stored on microfilm, some of which had been digitised by the time the Defendant came to look at them. Mr Harding attributed the speed with which he had managed to write his book to the benefits of digitisation and to the fact that he dedicated much of his time to it once he closed his practice. The Claimant sought to challenge this evidence in cross-examination, but I accept the Defendant’s evidence as to the scope of his research, which was supported by numerous documents which he disclosed. In particular, he was able to produce copies of many source materials which he had used as the basis of the factual matters included in his book and which fell within the Claimant’s 10 examples of alleged plagiarism. The Claimant sought to argue that this was all achieved by “reverse engineering” done after she brought this claim, but I find no support for that assertion, which also seems to me to be contradicted by various copy emails from 2015 in which the Defendant sought permission to cite from various documents.[23]The Defendant was not a wholly consistent witness, but most of the matters on which there are differences between the evidence in his first witness statement, made for the interim injunction application, and his two later witness statements, in particular in the details given as to the sources he had used, can in my view be explained by the speed with which the Defendant had to prepare his first witness statement. His evidence was rather confused as to when he first started researching his family history and as to whether he had written his book whilst taking a sabbatical from his solicitor’s practise (as stated on the cover of the book and in his first witness statement) or after closing the practice, but I do not believe that he was seeking to mislead the Court, nor do I consider that his confused answers on the latter point in cross-examination indicate that the rest of his evidence was unreliable. I consider that he was in essence a truthful witness.[24]I found Mrs Harding to be a truthful witness, with a clear recall of the facts within her knowledge.[25]The Claimant’s evidence on two specific points clashed directly with that of the Defendant or his mother. First, she suggested that Mr Harding had tried to hamper her efforts to see his book, inferring that he was concerned that she would see that he had copied her work. Her evidence was that Mr Harding was reluctant to let her look at the book when they met at Euston station, and she had to ‘prise’ it from his hands in order to look at it, at which point she realised immediately that her work had been plagiarised. The Defendant did not accept that he had been reluctant to let the Claimant see his book. He produced a copy of a text message in which the Claimant had told him before they met that she wished to buy the book, so that he had brought a copy with him for her to purchase. Indeed, in her witness statement, the Claimant said that she had asked him for a copy of the book. As the parties agree that the Claimant had asked Mr Harding to bring her a copy of the book, and he not only agreed to meet her, but brought a copy of his book with him, I cannot accept that he then tried to stop the Claimant seeing it. Had he wished to prevent the Claimant from seeing the book, it seems to me that he would have refused to meet her, or failed to bring the book with him. I conclude that the Claimant’s recollection of the meeting is not accurate, but reflects her suspicion that the Defendant had taken and copied her work, and her view that he had not acted honestly. I accept the Defendant’s evidence that he believed that once she saw the book she would be reassured that he had not copied hers.[26]In addition, the Claimant pointed to some marks which had been made under or alongside certain passages in Mrs Harding’s copy of the 3 Chapters, which (she said) must have been made by Mr Harding when reading or copying her work. Mr Harding said that the pages were marked when first he looked at them a few months after the Claimant sent them to his mother. Mrs Harding’s evidence was that the pages had been marked by the Claimant to emphasise passages mentioning Mrs Harding’s side of the family. I see no reason why Mrs Harding would have lied about this, since she and the Defendant both admit that he read the 3 Chapters in about 2010, and the markings do not, in my view, support the allegation of plagiarism. I prefer Mrs Harding’s explanation for the markings.[27]I conclude that where there is a direct conflict of evidence, I prefer that of the Defendant and Mrs Harding to that of the Claimant. I consider that I should treat the Claimant’s evidence, where not admitted by the Defendant or his mother or supported by the documents, with some circumspection.[28]Mrs Harding exhibited to her witness statement a handwritten affidavit dated 16 November 2016 made by Mrs Elizabeth Williams, who had also bought a copy of the 3 Chapters. The Defendant did not apply for and did not have permission to adduce evidence from Mrs Williams, nor - as Mrs Williams was not called as a witness - did the Claimant have the opportunity to cross-examine her. In the circumstances, I have not relied upon the contents of Mrs Williams’ affidavit.

Nature of the claim

[29]The Claimant has acted in person throughout these proceedings, although she had some professional help provided via the IP Pro Bono Unit in drafting her skeleton argument for the adjourned trial. Initially, she expressed her claim as being for "plagiarism" rather than as a claim either for infringement of copyright or for breach of confidence. In the skeleton argument she said, variously:
“The claim made out by the Claimant is for plagiarism of the Claimant’s manuscript that was sent to a very limited set of individuals known to the author … with personal interest in the subject matter of the manuscript, but with no commercial interest in it. … The Defendant has cast this as copyright infringement and breach of confidence, but in fact, the claim is more nuanced than that. … The claim, as is stated above, is for plagiarism … the claim is really for use by the Defendant of private research product, without permission, payment or acknowledgement, for commercial purpose. The references in the Claimant's manuscript have been carefully noted by the Defendant, conclusions made by the Claimant have been copied, portions have been copied. Numbers of the conclusions made by the Claimant are entirely new over earlier works, yet are included in the Defendant's work. That is no coincidence.”
[30]The skeleton argument went on "The Claimant's manuscript is valuable, private research. It would be expected that anyone wishing to use such work for commercial purposes would have to pay the author for that research and seek formal permission. Its key value to such a person is in its thoroughness and reliability, but also that it provides a shortcut to doing research themselves."

The law

[31]No legal basis was given in the skeleton argument for the claim put in this way. Counsel for the Defendant approached the claim on the basis that it was either a claim for copyright infringement or for breach of confidence. It seems to me that a claim of "plagiarism" would more naturally be seen as a claim for infringement of copyright, whilst the more nuanced claim put in the skeleton argument would be more likely to be seen as some sort of breach of confidence. I shall consider the claim on both bases.[32]As far as copyright is concerned, there is no issue between the parties as to the subsistence of copyright in the 3 Chapters sent to Mrs Harding. The issue is whether there was infringement of such copyright by copying. The 1988 Act defines copying as doing that act in relation to the copyright work as a whole or any substantial part of it. The Act is to be construed in conformity with Directive 2001/29, the Information Society Directive. In Case C-5/08, Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569, the CJEU held that it is possible for relatively short parts of a longer work to be protected from copying where those parts of themselves form an expression of the author's intellectual creation. In SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482, [2014] RPC 8 Lewison LJ held at [38] that, following Infopaq, the test for determining whether a restricted act has been done in relation to a substantial part of the work is whether that part contains elements which are the expression of the intellectual creation of the author of the work.[33]The position is helpfully summarised in paragraph 7-11 of Copinger and Skone James on Copyright, 17th ed: “(1) For the right to be infringed, two elements have to be established,(a) a sufficient degree of objective similarity between the copyright work and the alleged infringing work and(b) that this was the result of the copyright work having been copied, i.e. that there is a causal connection between the two; (2) The exclusive right relates not only to the entire work but also to any substantial part of it, that is to any part that contains elements that are the expression of the intellectual creation of the author of the work;"[34]Counsel for the Defendant referred me to Baigent v Random House Group Ltd [2007] EWCA Civ 247, [2007] FSR 24, in which the allegation was of infringement by taking the central themes of the claimant's book, rather than of direct "textual copying.” The case was decided prior to Infopaq, but Mummery LJ’s comments are nevertheless helpful. Counsel referred me to paragraph 124, where Mummery LJ enumerated a number of issues likely to arise for decision in a case of alleged infringement of literary copyright, and relied in particular upon these questions:
“(1) What are the similarities between the alleged infringing work and the original copyright work? Unless similarities exist, there is no arguable case of copying and an allegation of infringement should never get as far as legal proceedings, let alone a trial. The 1988 Act confers on the owner the exclusive right “to copy the work” either directly or indirectly (s.16). This is not an exclusive right to prevent the publication of a work on a similar subject or a work which happens to contain similar material, thematic or otherwise. (2) What access, direct or indirect, did the author of the alleged infringing work have to the original copyright work? Unless there was some evidence from which access can be directly proved or properly inferred, it will not be possible to establish a causal connection between the two works, which is essential if the claimants are to prove that the defendant's work is a copy. (3) Did the author of the alleged infringing work make some use in his work of material derived by him, directly or indirectly, from the original work? (4) If the defendant contends that no such use was made, what is his explanation for the similarities between the alleged infringing work and the original copyright work? Are they, for example, coincidental? Or are they explained by the use of similar sources? If the latter, what are the common sources which explain the similarities? How were the sources used by the authors of the respective works? (5) If, however, use was made of the original copyright work in producing the alleged infringing work, did it amount, in all the circumstances, to “a substantial part” of the original work? The acts restricted by the copyright in a literary work are to the doing of them “in relation to the work as a whole or any substantial part of it”
. See s.16(3)(b) of the 1988 Act. (6) What are the circumstances or factors which justify evaluating the part copied in the alleged infringing work as “a substantial part” of the original copyright work?”[35]Mummery LJ went on:
“145. It is more sensible to ask whether there exist in this case the necessary and sufficient conditions for characterising the parts copied from the original work as “a substantial part” of the original work. The decided cases help in identifying the relevant necessary and sufficient conditions for substantiality. Thus, it is not necessary for the actual language of the copyright work to be copied or even for similar words to be used tracking, like a translation, the language of the copyright work. It is sufficient to establish that there has been substantial copying of the original collection, selection, arrangement, and structure of literary material, even of material that is not in itself the subject of copyright. 146 It is not, however, sufficient for the alleged infringing work simply to replicate or use items of information, facts, ideas, theories, arguments, themes and so on derived from the original copyright work. … 155 Of course, it takes time, effort and skill to conduct historical research, to collect materials for a book, to decide what facts are established by the evidence and to formulate arguments, theories, hypotheses, propositions and conclusions. It does not, however, follow, as suggested in the claimants' submissions, that the use of items of information, fact and so on derived from the assembled material is, in itself, “a substantial part” of HBHG simply because it has taken time skill and effort to carry out the necessary research. 156 The literary copyright exists in HBHG by reason of the skill and labour expended by the claimants in the original composition and production of it and the original manner or form of expression of the results of their research. Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about.”
[36]In order to substantiate a breach of confidence claim, first of all there must be information which is confidential. The claimant must show that the defendant is under an obligation not to use or disclose that information, whether by virtue of a pre-existing relationship, or because the defendant has an understanding that the information is confidential or was disclosed to him in breach of a confidential obligation. The claimant must then show that the defendant has used or disclosed the information in breach of the obligation. These elements of an action for breach of an equitable obligation of confidence were set out in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, where Megarry J said at p 47:
“In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself … must “have the necessary quality of confidence about it.”
Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”[37]Megarry J went on:
“However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. But this must not be taken too far. Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain.”
[38]Similarly, Hirst J, in Fraser v Thames TV [1984] QB 44 said at page 66 that in order to be capable of protection the idea must "have some significant element of originality not already in the realm of public knowledge." Laddie J said in Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] R.P.C. 289 at page 374 “It is a commonplace that valuable and novel ideas may be produced by the judicious selection and combination of a number of items which, separately, are in the public domain. No one would suggest that such ideas are incapable of being the subject of an obligation of confidence. But, to adopt Megarry J.'s words, there must be some product of the skill of the human brain. A mere non-selective list of publicly available information should not be treated as confidential even if putting it together involves some time and effort. No relevant skill is employed.”[39]The information must not only have the qualities identified above, but be confidential because it is not public knowledge. Sharing the information with a limited number of persons will not necessarily destroy the confidential nature of the information; whether it amounts to publication destroying confidentiality is a question of degree, see Associated Newspapers v Prince of Wales [2007] 3 WLR 222.[40]As for the second element identified in Coco, the duty of confidence arises when confidential information comes to the knowledge of a person in circumstances where he is on notice that the information is confidential. Whilst an obligation to treat information as being confidential is frequently imposed by agreement, it may also be imposed upon indirect recipients of the confidential information: see Primary Group (UK) Ltd v The Royal Bank of Scotland plc [2014] EWHC 1082, [2014] RPC 26 (Arnold J) at [223]:
“an equitable obligation of confidence will arise not only where confidential information is disclosed in breach of an obligation of confidence (which may itself be contractual or equitable) and the recipient knows, or has notice, that that is the case, but also where confidential information is acquired or received without having been disclosed in breach of confidence and the acquirer or recipient knows, or has notice, that the information is confidential. Either way, whether a person has notice is to be objectively assessed by reference to a reasonable person standing in the position of the recipient.”
[41]Lastly, there must have been unauthorised use of the confidential information without lawful excuse.

The pleaded examples of plagiarism

[42]I discuss next the 10 examples of plagiarism listed by the Claimant in accordance with Carr J’s Order. It will be seen that most of these (and, indeed, most of the original longer list of alleged instances of plagiarism) do not include any allegation of direct copying of language, but relate to the choice of incidents or facts which are mentioned in both books and, in some cases, to use of the same source materials. (1) Children of Philippa Spilsbury (née Smith) At page 127 of his book, the Defendant said that Thomas and Philippa Spilsbury had “at least two children, William and “Goodie.” The Claimant alleged this came from her page 11:
“Phillipa married Dr Thomas Hamilton Spilsbury and they had at least two children a son William and a daughter Goodie." The Defendant denies copying from the Claimant and says that, had he copied, he too would have misspelled Philippa's name. He said that he suggested that there were "at least" two children, because whilst he was aware of the names Goodie and William from his mother, he had found a reference in a law report to Thomas Spilsbury leaving two children, William and Anne, so had not been sure whether there had been more than two children, or whether Goodie was another name for Anne. The Defendant produced a copy of the law report and newspaper article which he said he had used as sources for this point in his book. In her oral evidence, the Claimant complained that whilst the Defendant might have looked at contemporary sources, he had been led to them by the references in her work. However, there is no reference on her page 11 to any source of the information about the number or names of the Spilsbury children. The Claimant gave evidence that her information came from the will of Judge Smith, but this is not specified in the 3 Chapters. (2) Hannah Smith’s marriage At page 134 of his book, the Defendant referred to Hannah Smith’s marriage to Peter Awoonor Renner being “not generally a happy one” for a number of reasons which he then set out. The Defendant said that this was information he got from Denise Awoonor Renner, a direct descendant of Hannah. The Claimant alleges that this reflects page 75 of the 3 Chapters where she wrote of Hannah having an opportunity to discuss her unhappy marriage with her sisters Adelaide and Emma. The Claimant apparently got her information about the unhappiness of the marriage from Adelaide's memoirs in the West African Review, but she did not identify this as her source in the version of the 3 Chapters given to Mrs Harding. (3) Grieving over the death of Hannah Smith One of the Smith Sisters, Annette, married a Dr John Farrell Easmon, who became the Chief Medical Officer of the Gold Coast. The Defendant explained at pages 155 to 156 of his book that when Dr Easmon was relieved of those duties, he went on leave to England with his wife and two children. The Claimant had also dealt at some length with Dr Easmon's difficulties. At page 109 of her manuscript, she described Dr Easmon and his family visiting Adelaide and Emma in Jersey, saying "This was an opportunity for Nettie to grieve with her beloved sisters over the loss of Hannah …" She complained that at page 156 of his book the Defendant wrote "Nettie had the opportunity of being with her sisters Emma and Adelaide to grieve for the recent loss of their dear sister Hannah and to seek comfort and rest after what she and her family had gone through in Accra." (4) The death of Dr Joseph Spilsbury At page 131 of the Defendant's book, he referred to the death of Dr Joseph Spilsbury Smith, the oldest brother of the Smith Sisters. He gives the date of death as 4 February 1894. The Claimant alleged that this information came from page 94 of the 3 Chapters, where she said that Dr Smith had died of fever in 1894. Her information appears to have come from an article in the SLWN from 1894. The Defendant said that he had taken his information about the date of death from page 34 of the Cromwell book, where the date is given as 1894. In her skeleton argument for trial, the Claimant challenged the Defendant's evidence on this point, quoting an extract from the Cromwell book which did not give a date of death, and suggesting that he must have used her reference to 1894 and to the SLWN as a shortcut. There was, however, a simple explanation for this: whilst the hardback copy of the Cromwell book used by the Claimant did not give the year of death, the paperback copy of the book with which I was provided by the Defendant did give it. The Claimant’s complaint falls away once one can see that the Cromwell paperback book contained the necessary information for the Defendant to trace the exact date of death. (5) The wedding of Alice Maud Davies At pages 173-175 of the Defendant's book, he describes at length the wedding of Alice Davies, his great grandmother’s sister, to the Hon. J A McCarthy in 1894. The Claimant complained that this was copied from pages 86 to 88 of her book, where she too described the wedding, in similar terms, though not at the same length. She gave a reference to the SLWN of 14 April 1894, where the wedding was reported in detail. The Defendant explained that he too had taken his description of the wedding from the SLWN. His evidence was that he had spent a great deal of time going through the digitised editions of that newspaper at the British Library, doing searches by reference to the name of family members. I note that there are numerous other references in his footnotes to articles in the SLWN, regarding matters about which the Claimant makes no complaint. The Defendant produced a copy of the newspaper, from which it is clear that any coincidence of language comes from the fact that both parties used the same primary source. Indeed, the Defendant cites extensive passages from the newspaper. (6) The wedding of Laura Davies Laura Davies was the Defendant's great-grandmother. She married Claudius Wright on 1 December 1894, again in Freetown. The Defendant described the wedding in great detail at pages 176-180 of his book. The Claimant complained that this had been taken from pages 95-97 of her book, where she too described the wedding in detail. Her text includes footnotes referencing two articles in the SLWN. The same articles from the SLWN appear in the footnotes to the Defendant's book. In cross-examination, the Claimant accepted that Mrs Harding had sent her some pages from a book relating to this wedding, yet oddly, in my view, she insisted that the Defendant had copied directly from her book, rather than from an independent source. The Defendant did produce a copy of some pages from John Peterson’s book “Province of Freedom – a History of Sierra Leone 1787-1870” which commented upon the same wedding, although he did not cite this as a source in the footnotes. I am not sure whether the Peterson book was the source of the document sent to the Claimant by Mrs Harding. (7) Influences in Adelaide Smith obtaining employment Both parties described (the Claimant at page 85, the Defendant at page 144) how Adelaide Smith (Casely Hayford) returned to Freetown from Europe (where she had been educated) and obtained a part-time teaching post at a Wesleyan School run in a house owned by her mother, as well as another part time post at the Annie Walsh school. Both parties comment (albeit from slightly different perspectives) that her family connections would have helped Adelaide to get the Wesleyan School position. Ms Cromwell had also dealt with this at pages 49 to 51 of her book, as the Claimant acknowledged, but the Defendant did not. (8) Emma Charlotte and Alice as founding members of Jersey Ladies College Both parties dealt with the fact that younger members of the Smith family attended the Jersey Ladies College, when William Smith Jnr and his family were living in Jersey in the 1880s. The Claimant did not pursue this instance of alleged plagiarism. She did not say why, but I note that, as in the previous example, these facts are covered in the Cromwell book. (9) ‘Mallata’ or ‘Mulatto’ Smith William Smith Junior was of mixed race and known either as “Mallata” or “Mulatto”
Smith, “Mallata” being the Creole version of the word “Mulatto.” The Defendant uses both versions in his book (at pages 92 and 401 respectively). The Claimant complained that he had used “Malatta” by copying pages 5 - 6 of her 3 Chapters. She seeks to draw an inference of copying from the inconsistent spelling used by the Defendant. The Claimant’s information came from the obituary of Elizabeth Awoonor (or Awunor) Renner (née Smith) in the SLWN; the Defendant said his information came from Dr Davidson Nicol, who used the name when giving a speech at the Defendant’s wedding in 1989 (described at page 401 of his book). (10) Disbarring of Peter Awoonor Renner Both parties deal with the fact that Mr Renner, Hannah Smith’s husband, was disbarred for mortgage fraud. Again, both parties say that they obtained this information from the same source but the Defendant says that he interviewed members of the Awoonor Renner family for confirmation of these events and the Claimant denied that the family knew this.

Merits of the claim of copyright infringement

[43]It is accepted that copyright subsists in the 3 Chapters. It is also clear that Mr Harding had access to his mother’s copy of the work; heand his mother both accepted that he had looked at the Claimant’s work, although Mrs Harding described them as having "flipped through it" rather than having read it with care. Her explanation for this was that she had been disappointed when she received it to find that so little of the work related to her own direct ancestors, and had put it to one side. She denied having given it to her son and denied that he had taken it away with him, and I believe her. Nevertheless, plainly the Defendant had and took an opportunity to read the Claimant's work.[44]Mr Harding’s evidence was that he did not copy the Claimant’s work. I have already mentioned his evidence as to his lengthy interest in his family history, and the family tree which he presented to his mother in 2009, with the result of his researches at that point. This document seems to me plainly to be the forerunner of the family tree which is included in the Defendant's book. It traces Mrs Harding's family back six generations on both sides, as well as showing Mrs Harding's children and grandchildren. The only child of William Smith Jr who is identified in the family tree is Mary Davies, née Smith, Mrs Harding's great-grandmother. The document supports Mr Harding's evidence that he had been researching his family history for some time prior to November 2009. It does not show, however, whether he had carried out any research at that stage in relation to Mary Davies' half-sisters, the Smith Sisters.[45]Mrs Harding gave evidence that she knew about all of the children of William Smith Jr and their descendants, and had discussed their family history with her sons and grandchildren. She said that she had information about the family from Dr Davidson Nicol, who Ms Cromwell said had known Adelaide Smith Casely Hayford. In addition to information about family members provided by his mother and remoter relatives, the Defendant’s book contains direct references to a number of primary sources such as censuses and wills, a substantial bibliography and numerous footnotes referring to the Cromwell book, other books, such as A History of Sierra Leone by Christopher Fyfe, and many newspapers and journals. I note that Ms Cromwell had also clearly gleaned a great deal of information from the SLWN, a source cited by both of the parties to these proceedings. Anyone reading her book would have appreciated that the SLWN would be a valuable source of information about Sierra Leone in the 19th and 20th centuries and I think it clear that both of the parties used and cited the SLWN, sometimes at length, such as in relation to the wedding of Laura Davies.[46]Looking at the 10 examples of alleged plagiarism which I have analysed above in the light of that background, it seems to me that there is no evidence that the Defendant made use in his work of material derived either directly or indirectly from the Claimant’s work. I do not consider that any inference can be drawn from the similarities of incident or source identified by the Claimant. In most of the examples, the Defendant has identified and produced copies of credible, independent and publicly accessible sources of his information.[47]Where there is similarity of language, it is generally not significant. For example, both parties quoted extensively from the same newspaper articles to describe the Davies sisters’ weddings. Both referred to "Annette" Smith as "Nettie," but the Cromwell book makes it clear that this was the diminutive used by the family, as does an online family history of the Easmons which the Defendant gave as a source. The use of “Mallata” as well as “Mulatto” seems to me no more than a case of inconsistent spelling by the Defendant. The sole exception, in my view, is in the language used in example 3, where there is similarity between the comments made by both parties about the meeting of the three surviving sisters after Hannah’s death. This might suggest that there was copying, but in all the circumstances it seems to me more likely simply to be a coincidence.[48]Where the alleged similarities relate to comments, such as about the unhappiness of Hannah’s marriage, or the circumstances in which Adelaide Smith gained her first teaching job, it seems to me that the Defendant has given a credible explanation of his views.[49]I have considered whether it is credible that the Defendant would not have looked with at least a reasonable degree of interest at the Claimant's 3 Chapters, when he had decided that he wished to include references to some of the Smith Sisters in his book. However, the 3 Chapters in the form sent to Mrs Harding were (and appeared to be) an advanced draft of those chapters, not a finished article. That would, it seems to me, have made it less appealing to the Defendant to use the Claimant’s work as a source of information, and still less appealing to copy directly from it. I do not, therefore, consider that this is a reason to doubt the credibility of the Defendant’s account of the limited extent of his interest in the 3 Chapters, nor to doubt his denial of copying.[50]If I am wrong, and the Defendant made some use of the Claimant’s work in producing his work, in my judgment this did not amount to copying a substantial part of the Claimant’s work or her expression of her intellectual creation. The only point in which the Defendant could be said to have copied the expression of the intellectual creation of the Claimant is, in my view, in relation to example 3, but it seems to me that the coincidence of language is too slight to amount to an infringement of copyright.[51]In the circumstances, I make no finding of infringement of copyright.

Merits of the claim to breach of confidence

[52]Most of the content of the 3 Chapters was produced by the Claimant’s research of publically available sources. I accept that she put a great deal of work into researching and writing those chapters and I think it possible that her work included some element of originality not already in the realm of public knowledge. However, the Claimant did not identify any particular part or parts of the 3 Chapters as being original, but claimed that the whole was confidential. I am far from convinced that this can be right, given that elements of the 3 Chapters (including passages relied upon as examples of alleged plagiarism) are derived directly from third party sources which are in the public domain, but for the reasons I give below, I need not take this point further.[53]I must consider whether a duty of confidence was imposed upon Mrs Harding by agreement, or whether the confidential nature (if any) of the 3 Chapters was or should have been clear to Mrs Harding and, in turn, to the Defendant. The Claimant gave evidence that she had asked the recipients of the 3 Chapters to agree not to permit the manuscript to be taken from the recipient's home by any relative who was not living with them. In her claim form she said that this had been done in writing, but by the time of the case management conference she had realised that she had not included that point in writing and said that she recalled that she had done this orally, so as not to seem overly aggressive. The purpose of this additional term was, she said, because she thought it would make it more difficult for a younger relative of the recipient to copy her work, if they were not able to take it away from the recipient's home. She did not say that this meant that the manuscript had been provided in confidence or that the agreement imposed a duty of confidence. The Claimant said that she had made an oral agreement to that effect with Mrs Harding, who was adamant that she had not entered into any such oral agreement.[54]Given the uncertainty of the Claimant’s recollections and the clarity of Mrs Harding’s evidence, I prefer Mrs Harding's evidence on this point. I find that Mrs Harding was not asked to and did not agree that she would not permit her copy of the 3 Chapters to be removed from her home. In any event, Mrs Harding denied that she had permitted anyone to take her copy away from her home. Again, I accept her evidence on this point. I find that there was no duty of confidence imposed on Mrs Harding by the alleged agreement.[55]Even if I am wrong on that point, in my judgment the purpose for which the alleged agreement was sought, and the effect of any such agreement was essentially only to reiterate the existing copyright notice on the manuscript. The additional requirement (had it been agreed) would not have imposed an obligation of confidence upon the recipient, or given the recipient notice that the contents of the 3 Chapters were to be treated as confidential. The terms of the oral agreement alleged by the Claimant would not have prevented the recipient of the 3 Chapters from discussing its contents with anybody or otherwise making use of the information in the manuscript, for instance, so as to go to the publically available sources which the Claimant had identified. I conclude that there was nothing in the circumstances in which the 3 Chapters were supplied to Mrs Harding would (or should) have indicated to her that the Claimant considered the work to have been given to her in confidence.[56]It was submitted in the Claimant's skeleton argument that the 3 Chapters were a "private research product" but in my view that is not an accurate description of them, especially as they were sold by the Claimant to Mrs Harding and the other recipients. The Claimant did not suggest that at the time when she supplied copies of the 3 Chapters to the recipients she informed them that they were only in the form of a working draft which was in some way to be kept private. The position here where copies of the chapters were sold to descendants and friends of the Smith family, can be contrasted with the facts in Associated Newspapers v Prince of Wales where copies of the Prince of Wales’ diary were sent to his friends marked Private & Confidential.[57]It does not seem to me that putting a copyright notice on the copies of the Chapters, even in the extended form used by the Claimant, would have suggested to the recipient that the contents of the Chapters were private. I accept that the notice is in wider terms than a standard copyright notice and I have considered carefully whether, by including the phrase "It is mainly for the descendants and friends of the Smith family," the Claimant gave the recipients notice that the contents of the 3 Chapters were confidential. I have concluded that she did not do so. That phrase would be taken as no more than indicating the likely audience for the book. In my judgment, the extended copyright notice was of no wider effect than any standard copyright notice. It did not amount to an express provision preventing (or purporting to prevent) the recipients of the 3 Chapters from using them in the same way that any published historical work could be used, and as both parties in these proceedings used the Cromwell book, and other history books, as a source of information, inspiration, and potentially lines of inquiry to source materials.[58]In the circumstances, in my judgment, Mrs Harding was not put under any express duty of confidence by the Claimant either by the copyright notice or by the alleged oral agreement. Taking into account all of the circumstances, and in particular the fact that Mrs Harding paid the Claimant for the copy of the 3 Chapters, I conclude that no express duty of confidence was imposed upon Mrs Harding, and no equitable duty of confidence would have been imposed upon a reasonable person standing in the position of Mrs Harding, or upon Mr Harding, when looking at his mother's copy of the 3 Chapters, and knowing that it had been sold to his mother.[59]For these reasons, I reject the Claimant's allegation that by publishing his book, Mr Harding acted in breach of her confidence (if any) in the 3 Chapters.[60]Moreover, in the light of the conclusions I have reached above as to the allegations of copying and plagiarism, it seems to me that even if I am wrong and Mr Harding was under some obligation of confidence, he did not breach any such confidence, if the Claimant’s case is broadly that he used her work to identify useful sources of information for his book.[61]In my view the claim for breach of confidence must also fail.