Muir Dorrans V. The Shand Partnership And Others
| Jurisdiction | Scotland |
| Judge | Lord Kingarth |
| Date | 16 December 2003 |
| Court | Court of Session |
| Published date | 16 December 2003 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF LORD KINGARTH in the cause MUIR DORRANS Pursuer; against THE SHAND PARTNERSHIP AND OTHERS Defenders: ________________ |
Pursuer: Higgins; Simpson & Marwick, W.S.
Defenders: Logan; Russel & Aitken
16 December 2003
[1]The pursuer is an architect. In this action he seeks, inter alia, damages against a number of defenders for breach of copyright in certain drawings (consisting of a set of plans and elevation drawings) prepared by him relative to the development of a site at 12 Westgate, Crail, Fife.
[2]He avers (in Condescendence II) that in or about 1997 he became aware of the site, which he considered to be suitable for development. The site was owned by a Mr Hastie. The pursuer approached the directors of a local development company, Fraser Gray Holdings Limited ("FGH"), in order to ascertain whether they were interested in developing the site. FGH were interested in redeveloping the site for residential use. They approached Mr Hastie with a view to purchasing the site from him. FGH thereafter entered into an agreement with Mr Hastie, in terms of which a purchase price was agreed for the site, the said price being conditional upon the grant of planning permission for the construction of nine residential units on the site. FGH instructed the pursuer to prepare plans to be submitted to Fife Council Planning Department in support of the proposed planning application. The pursuer entered into an agreement in this regard with FGH in terms of letters dated 1 July 1997, 29 April 1998, 5 May 1998 and the R.I.B.A. Standard Form of Agreement for the Appointment of an Architect (SFA/92). It is averred that approval was obtained for a scheme in accordance with the pursuer's drawings. The pursuer admits that he invoiced FGH for the preparation of the plans and the planning consent, and that he was paid in full. Notwithstanding this, following the grant of planning permission, FGH withdrew from the agreement to purchase the site and the development was not proceeded with. Further it is averred that although in or about September 2000 the pursuer received an offer from Mr James Ryce, acting on behalf of Southglen Developments Limited, who were then proposing to develop the site in accordance with the planning permission, in the sum of £1,225 plus VAT (later increased to £1,500) for his copyright in the drawings, this offer was not accepted.
[3]In Condescendence III the pursuer claims that his copyright in the drawings has been breached. In particular he avers that he ascertained that a planning application in respect of the site was submitted in or about March 2001 and that proposals were underway to develop the site. Large scale plans showing the proposed new development were placed in the windows of disused garage premises. The pursuer inspected the drawings relative to an application for amendment of planning permission. He avers that these drawings represented substantial copies of his drawings. It is said that the local authority planning department have indicated to him that the new development was to be constructed in accordance with the plans submitted by the pursuer and using the original planning permission obtained in or about November 1998. The third defenders are said to be a property development company who instructed the first defenders, who are architects, to prepare the new drawings, and to submit them in support of the revised planning permission. The fourth defenders, it is averred, were contractors instructed by the third defenders to construct buildings on the site in accordance with the new drawings. The fifth defenders are said to be selling-estate agents for the new development who prepared and issued to the public particulars showing elevations of the buildings identical to those shown on the pursuer's drawings.
[4]In these circumstances it is averred that each of these defenders have infringed the pursuer's copyright. In particular it is averred, in Condescendence IV, that
"By making copies of the drawings the first defenders have infringed the pursuer's copyright therein. By authorising or instructing the first defenders to copy the drawings, the third defenders have infringed the pursuer's copyright therein. By constructing buildings on the site in accordance with the drawings the fourth defenders have infringed the pursuer's copyright in the drawings. By preparing and issuing to the public, possessing and exhibiting in public the said particulars, the fifth defenders have infringed the pursuer's copyright in the drawings."
It is, in particular, averred that no person has been given permission either by the pursuer or by FGH to use the planning permission or to use the designs and layouts that were used to obtain that planning permission. Although the first, third, fourth and fifth defenders aver in answer that Mr Hastie sold the property with planning consent to Thomas Mitchell Homes Limited; that Thomas Mitchell Homes Limited sold the property to the third defenders and that FGH gave certain plans to Mr Hastie or to Mr Ryce and that copies of these plans were subsequently provided, either by Mr Ryce or Thomas Mitchell Homes Limited, to the third defenders, the accuracy of these averments is said by the pursuer to be not known and not admitted.
[5]The pursuer concludes for damages of £10,000 against each of the first, third, fourth and fifth defenders. It is said that these sums "represent the licence fee which the respective defenders would have required to pay to the pursuer for the use of the drawings made by each of them". Further, having regard to "the whole circumstances, and in particular the flagrancy of the infringement and benefits accruing to the first ... defenders by reason thereof", the pursuer seeks additional damages against the first defenders. The sum sought by way of additional damages is £5,000.
[6]The action came before me on procedure roll. Counsel acting on behalf of the first, third, fourth and fifth defenders sought dismissal. Two main arguments were presented. First, it was submitted that there were no relevant averments of breach of copyright, the pursuer, in the circumstances, having impliedly licensed the third defenders, and those instructed by them, to use the drawings (in which the pursuer admittedly had copyright) in relation to the site. Secondly, there were, it was argued, no relevant or sufficiently specific averments to support any of the damages claims or the claim for additional damages against the first defenders.
[7]I propose to deal with the question of implied licence first.
[8]The argument advanced in this respect was based on the proposition that when an architect was engaged to prepare, and was paid a commercial rate for the preparation of, plans for the purpose of obtaining planning permission in respect of a property, he impliedly licensed any proprietor of that property, present or subsequent, in the event that planning permission was obtained in accordance with his plans, to use those plans in relation to the development of the property - unless such a licence was expressly excluded in the contract made by the architect when engaged.
[9]This proposition, it was argued, could in all material respects be derived from Blair v Osborne & Tompkins &c 1971 2 Q.B. 78 - a decision of the Court of Appeal which, it was said, was very much in point, both on the facts and the law. Counsel sought to derive assistance, in particular, from the opinion of Lord Denning M.R., and in particular from a passage at page 85 where he said:-
"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 building on that site. The copyright remains in the architect, so that he can stop anyone else copying his plans, or making a house from them; but he cannot stop the owner, who employed him, from doing work on that very site in accordance with the plans. If the owner employs a builder or another architect, the implied licence extends so as to enable them to make copies of the plans and to use them for that very building on that site: but for no other purpose. If the owner should sell the site, the implied licence extends to as to avail the purchaser also.
There is no authority in this country on this subject. But I am glad to find that there is a case in the Supreme Court of New South Wales. It is Beck v Montana Constructions Pty Ltd [1964-65] N.S.W.R. 229. I find the reasoning of Jacobs J. very convincing. He said, at p. 235:
'... the payment for sketch plans includes a permission or consent to use those sketch plans for the purpose for which they were brought into existence, namely, for the purpose of building a building in substantial accordance with them and for the purpose of preparing any necessary drawings as part of the task of building the building.'
I entirely agree."
[10]Counsel also referred to the full opinion of Jacobs J. in Beck v Montana Constructions Pty Limited. Matters might be different if the architect was paid only a nominal fee to prepare drawings for the purpose of attempting to obtain planning permission. Reference in that connection was made to Stovin-Bradford v Volpoint Properties Limited &c 1971 3 All E.R. 570. Blair v Osborne & Tompkins had been referred to with approval in Robin Ray v Classic F.M. Plc 1998 F.S.R. 622 and in the Sheriff Court in Scotland in Robert Allan & Partners v Scottish Ideal Homes 1972 S.L.T. Sh. Ct. 32. Although it had been referred to also in Pasterfield v Denham &c 1999 F.S.R. 168, the facts of that case were less obviously in point.
[11]Counsel accepted that the terms of the pursuer's engagement in this case were said to be covered by the 1992 R.I.B.A. Standard Form Conditions of Appointment and that Clauses 1.7.1 and 2.3.1 were of potential...
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