Blair v Osborne & Tomkins
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WIDGERY,LORD JUSTICE MEGAW |
| Judgment Date | 12 November 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1112-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 1970 |
[1970] EWCA Civ J1112-3
In The Supreme Court of Judicature
Court of Appeal
Appeal of Plaintiff from order of His Honour Judge Corley, Luton County Court, on 2nd February, 1970
The Master of the Rolls (Lord Denning)
Lord Justice Widgery and
Lord Justice Megaw
Mr. R.A. STANLEY (instructed by Messrs. Watkins, Pulleyn & Ellison) appeared on behalf of the Appellant Plaintiff.
Mr. CHRISTOPHER WILSON-SMITH (instructed by Messrs. Machin & Co.) appeared on behalf of the Respondent Defendants.
This case raises a point of very considerable interest to architects. Mr. Underwood and Mr. Norris were two neighbours at Sherwood Avenue, near St. Albans. Each has a big garden. By each giving up a piece, they could together get a building plot for two houses. They hoped to get planning permission, and then either put up houses themselves or sell the plot with planning permission. They employed an architect, Mr. Blair, to prepare drawings so as to get outline planning permission. He accepted the engagement and told them that his terms would be in accordance with the R.I.B.A. scale. He gave them the little booklet. That was in February 1966. But, after a little while, he told them that it would be better to submit a full planning application. They agreed that that should be done. So he prepared a detailed plan for planning permission for two semi-detached houses. The detailed plan had considerable architectural merit. No doubt the copyright in it belonged to Mr. Blair. He submitted it to the local authority. He gave Mr. Underwood and Mr. Norris copies of the drawings on the 6th April, 1966. He said:
"I have now submitted the scheme you favoured for full planning approval. Enclosed are two copies of the drawing for your use. I confirm you understand the fee basis is to be in accordance with the R.I.B.A. scale of charges, and at this stage amounts to 1/6 of minimum full fees."
That is a reference to R.I.B.A. scale of fees, which says in Clause 3(2):
"For taking Client's instructions, preparing sketch designs sufficient to indicate the Architect's interpretation of the Client's instructions (but not in detail adequate to enable bills of quantities to be prepared), making approximate estimate of cost and making application for outline Town Planning approval the charge is on quantum meruit and shall not exceed one-sixth of the percentage due under Clause 1 or 2 (as the case may be) on the Architect's estimated cost of such works.
The application was approved. On the 3rd August Mr. Blair sent the certificate for full planning approval to Mr. Underwood and Mr. Norris. He enclosed his account, which came to some £70, and added significantly: "Wishing you all the very best in this venture." His account said:-
"To: Taking Instructions, Making Survey, Preparing Scheme, Obtaining full Planning Consent: … … … £70. 0s.0d.
Mr. Underwood and Mr. Norris paid the £70. They kept the copies of the plans which he had sent them. But they did not employ Mr. Blair to do the work. They sold the site to a building firm - P.W. Byrne Ltd. – and they handed over Mr. Blair's drawings to this firm. P.W. Byrne Ltd. Wanted to start work quickly before the Land Commission Act came into operation. They got hold of their own surveyors - Messrs. Osborne & Tomkins - and handed them the plans. These surveyors had to get approval under the building regulations. For this they used Mr. Blair's drawings and put in a lot more detail. They got building approval. And the houses were built by Messrs. P.W. Byrne Ltd., with the assistance of Messrs. Osborne & Tomkins.
Mr. Blair saw the houses. He believed that his plans had been used. He went to the local Council and found out that he was right. His plans had been used. Thereupon he claimed damages for infringement of his copyright. He claimed against Messrs. Osborne & Tomkins, the surveyors, who had used his drawings; and against Messrs. P.W. Byrne Ltd., who built the houses from them. The County Court Judge decided against Mr. Blair on the main point. He appeals to this Court.
It is quite plain that Mr. Blair was entitled to the copy-right in his drawings. He drew them himself, and that makes him prima facie the owner of the copyright in them. Furthermore, it is one of the R.I.B.A. conditions; "Copyright in all drawings and in the work executed from them will remain the property of the Architect.
As owner of the copyright, Mr. Blair was certainly entitled to stop people in general from copying his drawings, or building a house from them; but this is subject to this qualification:- he could not complain of anything for which he had given licence or permission. The question in this case is whether he had given a licence.
The R.I.S.A. conditions do not give any guidance on this question of licence. But they do contain a condition which is of some relevance:
"An engagement entered into between the architect and the client may be terminated at any time by eitherparty upon giving reasonable notice".
Suppose now that, after the architect has made the plans, a contract is made by the owner with a builder whereby the builder is to build the house in accordance with the plans: and then the architect says he will go on longer as architect for the work; and gives one month's notice. Can the architect refuse to let the owner and the builder use the plans and make the house from them? Surely not. At that stage, at any rate, when the owner has placed a contract for the work, the architect must be taken to have impliedly licensed the work to be done in accordance with the plans.
Now take it back to an earlier stage, when the architect has drawn plans and obtained planning permission on the faith of them, and been paid for them. Can the architect then withdraw from the work and refuse to let the owner use the plans? Surely not. That shows that, at that stage also, the architect must be taken to have impliedly licensed the building to proceed in accordance with the plans.
Those illustrations show to my mind that, when the owner of a building plot employs an architect to prepare plans for a house on that site, the architect impliedly promises that, in return for his fee, he will give a licence to the owner to use the plans for the...
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