Forensic Telecommunications Services Ltd v (1) The Chief Constable of West Yorkshire Police (2) Stephen Hirst
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ARNOLD |
| Judgment Date | 09 November 2011 |
| Neutral Citation | [2011] EWHC 2892 (Ch) |
| Docket Number | Case No: HC09C01787 |
| Court | Chancery Division |
| Date | 09 November 2011 |
[2011] EWHC 2892 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Arnold
Case No: HC09C01787
Anna Edwards-Stuart (instructed by Peachey & Co LLP) for the Claimant
Jonathan Hill (instructed by Director of Legal Services, West Yorkshire Police) for the Defendants
Hearing dates: 19–21, 24 October 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON MR JUSTICE ARNOLD
MR JUSTICE ARNOLD :
Contents
| Topic | Paragraphs |
| Introduction | 1 |
| The witnesses | 2–11 |
| FTS's witnesses | 3–8 |
| Jonathan Clark MBE | 3 |
| Trevor Fordy | 4 |
| Dominic Kirsten | 5–8 |
| The Defendants' witnesses | 9–11 |
| Stephen Miller | 9 |
| Mr Hirst | 10 |
| Ronald van der Knijff | 11 |
| The missing witness | 12–15 |
| Factual background | 16–51 |
| Methods of extracting data from mobile phones | 16–19 |
| PM Abs addresses | 20–27 |
| FTS Hex and FTS's PM Abs Lists | 28–32 |
| The development of CLiVE and the Defendants' lists of PM Abs addresses | 33–42 |
| FTS's concerns and the 8 July 2008 meeting | 43–47 |
| DC Miller's July 2008 program | 48–49 |
| These proceedings | 50 |
| Pandora's Box | 51 |
| The legal context for the copyright and database right claims | 52–73 |
| International treaties | 53–57 |
| Berne Convention | 53 |
| TRIPS | 54 |
| WIPO Copyright Treaty | 55–57 |
| European directives | 58–64 |
| Software Directive | 58–60 |
| Database Directive | 61–62 |
| Information Society Directive | 63–64 |
| Domestic legislation | 65–68 |
| Interpretation of domestic legislation in the context of European directives | 69 |
| Interpretation of European directives | 70–73 |
| Copyright | 74–119 |
| Subsistence of copyright | 75–96 |
| Infringement | 97–107 |
| Derivation | 98–106 |
| Reproduction of a substantial part | 107 |
| Fair dealing defence | 108–115 |
| For the purposes of research | 109 |
| For a non-commercial purpose | 110 |
| Fair dealing 111–113 Sufficient acknowledgement | 114 |
| Conclusion | 115 |
| Liability of the Defendants | 116–119 |
| Innocence defence to damages | 118 |
| Conclusion | 119 |
| Database right | 120–128 |
| Subsistence | 121–123 |
| Infringement | 124 |
| Liability of the Defendants | 125–126 |
| Innocence defence to damages | 127 |
| Conclusion | 128 |
| Breach of confidence | 129–140 |
| The law | 130 |
| Necessary quality of confidence | 131–135 |
| Circumstances importing an obligation of confidence | 136–137 |
| Misuse | 138 |
| Liability of the Defendants | 139 |
| Conclusion | 140 |
| Summary of conclusions | 141 |
| Postscript | 142 |
Introduction
In these proceedings the Claimant ("FTS") claims that the Defendants have infringed its copyright, alternatively its database right, in certain tables of data referred to as "the PM Abs Lists" and have misused confidential information consisting of the data in those tables. The First Defendant is sued in his capacity of representing the West Yorkshire Police ("WYP"). The Second Defendant ("Mr Hirst") was formerly a detective constable employed by WYP.
The witnesses
The following witnesses gave evidence.
FTS's witnesses
Jonathan Clark MBE. Mr Clark is the founder, majority shareholder, Chairman and former Managing Director of FTS. He has worked in the telecommunications industry for the last 30 years. He founded FTS in 2000. He gave evidence regarding FTS's business and its licensing of FTS's FTS Hex software. He was a clear and careful witness.
Trevor Fordy. Mr Fordy is a former police officer who is employed by FTS as its Special Telecoms Advisor Manager. This role involves managing a group of former police investigators and liaising with law enforcement agencies. He gave evidence regarding FTS's dealings with WYP. As Mr Fordy himself emphasised, he is an investigator rather than a technical person, and he had a limited understanding of technical matters. Furthermore, some of his evidence was based on his reading of documents disclosed by the parties rather than first-hand knowledge. Subject to those caveats, he struck me as a reliable witness.
Dominic Kirsten. Mr Kirsten has worked in the telecommunications industry in a variety of capacities for 22 years. He was employed by FTS as Cell Site Engineer from January 2007 to June 2008. Since then he has been employed by FTS as its Research and Development Manager. He has considerable experience as an expert witness in criminal proceedings.
Some of Mr Kirtsen's evidence was factual evidence regarding the development of the PM Abs Lists. The greater part of his evidence, however, concerned the lists of PM Abs addresses complained of by FTS. In particular, Mr Kirsten compared those lists with FTS's PM Abs Lists, and drew attention to similarities and differences between them. Counsel for the Defendants submitted in his skeleton argument that the latter evidence was expert evidence. He further submitted that it was inadmissible because (a) Mr Kirsten was employed by FTS and (b) his witness statement did not comply with the requirements for the form of expert reports laid down by CPR r. 35.10, Practice Direction Part 35 – Experts and Assessors and the Protocol for the Instruction of Experts to Give Evidence in Civil Claims. In the event, however, counsel for the Defendants did not apply to have this evidence excluded, but on the contrary cross-examined Mr Kirsten upon it.
I agree with counsel for the Defendants that some of Mr Kirsten's evidence is properly categorised as expert evidence. In my assessment he is qualified to give that evidence. The mere fact that Mr Kirsten is employed by FTS does not debar him from giving expert evidence on its behalf. In my view, however, the fact that a witness is employed by a party makes it all the more important that the requirements of CPR r. 35.10, Practice Direction Part 35 – Experts and Assessors and the Protocol for the Instruction of Experts to Give Evidence in Civil Claims are adhered to. Accordingly, the relevant part of Mr Kirsten's evidence ought to have been contained in an expert report complying with those requirements. Having heard Mr Kirsten, however, I am satisfied that he approached his task in a manner that was consistent with the spirit of those requirements, albeit not the letter of them.
In his closing submissions counsel for the Defendants submitted that Mr Kristen's evidence was partisan. I do not accept that submission. I recognise, of course, that Mr Kirsten's position as an employee of FTS made it difficult for him to be wholly impartial and objective, and I have made allowances for that. In his witness statement, however, Mr Kirsten drew attention to differences as well as similarities and expressed himself quite neutrally. Furthermore, his oral evidence was balanced and fair. I do not consider it necessary to deal with all of the criticisms of Mr Kristen advanced by counsel for the Defendants, but I will comment on one by way of illustration. In his statement, Mr Kristen drew attention to certain small differences between the PM Abs Lists and the lists complained of, and expressed the opinion that these "could be explained by human error while manually copying data". Counsel for the Defendants criticised Mr Kirsten for not having mentioned in his statement that FTS's manuals were available in an electronic format from which it would have been possible to cut-and-paste the PM Abs Lists. In my view this is not a justified criticism. The existence of the differences identified by Mr Kirsten excludes the possibility of such electronic copying having taken place, while the availability of the electronic copies does not exclude the possibility of copying by manual means.
The Defendants' witnesses
Stephen Miller. Detective Constable Miller is and has at all material times been employed by WYP in its High Tech Crime Unit ("HTCU"). In addition, he has a degree in computing and experience as a computer programmer. DC Miller struck me as a reliable witness for the most part, but it was noticeable that (whether consciously or not) he distanced himself somewhat from Mr Hirst during the course of his oral evidence.
Mr Hirst. Mr Hirst was a police officer employed by WYP from 6 December 1993 to 2 September 2007. From at least July 2005 he was employed by the HTCU. He is not a programmer, and has relatively little technical expertise. I have to say that I found Mr Hirst unconvincing as a witness. In particular, as I shall explain below, his evidence on the key issue of derivation was implausible.
Ronald van der Knijff. Mr van der Knijff is a Scientific Investigator in the Digital Technology and Biometrics Department of the Netherlands Forensic Institute. The Defendants served an expert report from Mr van der Knijff. Counsel for FTS did not cross-examine Mr van der Knijff upon his report. As she submitted, it became clear from the evidence of DC Miller and Mr Hirst that some of the factual material upon which Mr van der Knijff's evidence was based was (through no fault of Mr van der Knijff) materially incomplete.
The missing witness
Seyton Bradford was employed by FTS from some time in 2003 to October 2009. He was the author of the copyright works relied upon by FTS. He was not called by either side to give evidence at trial. FTS relied instead upon the evidence of Mr Fordy and Mr Kirsten, both of whom had worked with Mr Bradford (and, in Mr Kirsten's case, was his line manager from June 2008 onwards). Their evidence was that Mr Bradford was not giving evidence for FTS because he had not left on good...
To continue reading
Request your trial
-
Technomed Ltd and Another v Bluecrest Health Screening Ltd and Another
...principles of interpretation of the UK legislation are clearly and helpfully set out by Arnold J in Forensic Telecommunications Services Limited v Chief Constable of West Yorkshire Police [2011] EWHC 2892 (Ch) at paragraphs 52 to 73. I need not repeat here Arnold J's comments, which I grat......
-
England and Wales Cricket Board Ltd and another v Tixdaq Ltd and another
...(the nearest is my very brief consideration of it in Forensic Telecommunications Services Ltd v Chief Constable of West Yorkshire [2011] EWHC 2892 (Ch), [2012] FSR 12 at [113]). Certainly none was cited to me. Nor was any decision of any other court of a Member State of the EU. Nor was an......
-
Health & Case Management Ltd v The Physiotherapy Network Ltd
...also qualify for copyright protection in addition to the sui generis database right (see discussion in Forensic Telecommunications Services Ltd v Chief Constable of West Yorkshire Police [2012] FSR 15 [83]–[90] per Arnold J). TPN does not maintain any claim that it owned a copyright in the......
-
Geophysical Service Inc. v. Encana Corp., 2016 ABQB 230
...cases involving mobile phone telephone lists ( Forensic Telecommunications Services LTD v Chief Constable of West Yorkshire Police , [2011] EWHC 2892 (Ch)); the improvement of a software program ( Delrina Corp. v Triolet Systems Inc. (2002), 58 OR (3d) 339 (CA) and Harmony Consulting Ltd v ......
-
IP Snapshot
...here. For the full text of the decision, click here. Forensic Telecommunications Services Ltd v West Yorkshire Police & Another [2011] EWHC 2892 (Ch), 9 November 2011 In a decision earlier this month, the High Court held that a table of data produced by Forensic Telecommunications Servi......
-
THE USE OF EXPERTS IN LEGAL PROCEEDINGS IN SINGAPORE INVOLVING INTELLECTUAL PROPERTY RIGHTS
...reversed the trial judge's finding of invalidity. In Forensic Telecommunications Services Ltd v Chief Constable of West Yorkshire Police[2012] FSR 15 at [7], a copyright infringement and breach of confidence case, Arnold J confirmed that “the mere fact that [the witness] is employed by [the......