Pearce v Ove Arup Partnership Ltd

JurisdictionEngland & Wales
Judgment Date21 January 1999
Judgment citation (vLex)[1999] EWCA Civ J0121-3
Docket NumberCHANI 97/1238/B
CourtCourt of Appeal (Civil Division)
Date21 January 1999
Gareth Pearce
Ove Arup Partnership Ltd and Others

[1999] EWCA Civ J0121-3


Lord Justice Roch

Lord Justice Chadwick

Lord Justice May

CHANI 97/1238/B




Royal Courts of Justice


London WC2

MISS J CLARKE (Instructed by Messrs Landau & Cohen; Middlesex) appeared on behalf of the Appellant

DR HEATHER LAWRENCE (Instructed by Messrs Berrymans Lace Mawer, London WC2) appeared on behalf of the first Respondent

MR C FLOYD QC and MR R HACON (Instructed by Messrs Ashurst Morris Crisp) appeared on behalf of the second, third and fourth Respondents


This is the judgment of the Court.


The plaintiff, Mr Pearce, is an architect. In 1986, he completed his diploma in architecture at the Architectural Association School of Architecture in London. Between December 1985 and June 1986, he undertook an architectural project for his diploma in which he produced drawings, detailed plans and paintings of a design for a Town Hall for the Docklands Development in London. He claims, so far as is relevant to these proceedings, that he is the owner of United Kingdom and Dutch copyright in his Docklands plans.


Between 1990 and 1993, the City of Rotterdam, the fourth defendants, had constructed in Rotterdam a public building known as the Kunsthal. The first defendants, Ove Arup Partnership Limited, were appointed as civil engineer for the construction of the Kunsthal. The third defendants and their director Mr Koolhaas, the second defendant, were the architects who designed the building. In the Autumn of 1992, Mr Pearce visited Rotterdam as a tourist. He saw the Kunsthal in the course of construction and believed that features of its design had been copied from his Docklands plans. In these proceedings, he claims that each of the defendants has infringed his United Kingdom or Dutch copyrights. It is accepted on his behalf that a damages claim for infringement of his United Kingdom copyright would be statute barred, although the possibility of claiming an injunction is forensically retained. The main claim is for infringement of his Dutch copyright.


The first defendants are domiciled in the United Kingdom. Mr Koolhaas may be domiciled in the United Kingdom. The third and fourth defendants are domiciled in the Netherlands. Mr Pearce claims that the English courts have jurisdiction in relation to his claims against those defendants not domiciled in the United Kingdom under Article 6(1) of the Brussels Convention. This provides that a person domiciled in a Contracting State may be sued, where he is one of a number of defendants, in the courts for the place where any one of them is domiciled.


The plaintiff's writ and statement of claim were issued on 25 September 1996. The statement of claim was amended on 30 October 1996. The second, third and fourth defendants served a defence dated 13 November 1996 and the first defendants filed a defence dated 29 November 1996. Each of them denied infringement of the plaintiff's copyright. There were requests for particulars of the amended statement of claim and the plaintiff eventually, on 31 January 1997, served amended particulars of similarity, giving particulars of the similarities which he alleged between his copyright works and the defendants' plans. Meanwhile on 16 December 1996 the second, third and fourth defendants had issued a notice of motion seeking to strike out those parts of the amended statement of claim which concerned alleged infringements of Dutch copyright on the ground that these were not acts which constitute torts actionable under English law. The notice of motion also invited the court to strike out the whole of the amended statement of claim under its inherent jurisdiction on the ground that the plaintiff's allegations were speculative. The notice of motion also applied to strike out those paragraphs of the amended statement of claim which alleged breach of United Kingdom copyright on the ground that these allegations were statute barred. By summons dated 19 December 1996, the plaintiff applied to strike out allegations in each of the defences which asserted that infringement of Dutch copyright is not actionable as a tort under English law.


These matters came before Mr Justice Lloyd on 12 February 1997. In his judgment given on 7 March 1997, the judge declined to strike out the allegations of infringement of Dutch copyright on the ground that they were not justiciable under English law. But he upheld the defendants' submission that on the facts alleged the plaintiff's claim was bound to fail. He held that the degree of similarity between the plaintiff's Docklands design and the Kunsthal drawings was not sufficient to give rise to an inference of copying. He considered that the claim was based on speculation. He accordingly ordered the whole claim against each of the defendants to be struck out.


The plaintiff appeals, with leave granted on paper by Lord Justice Aldous, against the judge's decision that on the facts which he alleged his claim was bound to fail and should be struck out. The second, third and fourth defendants by respondents' notices contend that the judge's order should be affirmed on the additional ground that the alleged infringements of Dutch copyright against them are not actionable torts under English law. This judgment deals with each of these contentions.


Abuse of Process


The plaintiff's pleaded case relies on two limbs. He alleges, first, that the second and third defendants had an opportunity to take copies of his Docklands plans and he asks the court to infer that they did so. Secondly, he alleges that there are remarkable similarities between his plans and the Kunsthal drawings. From a combination of these facts, he says that it should be inferred that the second and third defendants used graphic copies of his plans as a basis for their design. In striking out the plaintiff's claim on the basis that it was speculative, the judge in essence decided that the claim was bound to fail because no court would ever be persuaded to draw the necessary inferences.


The plaintiff pleads that one of his tutors at the Architectural Association School of Architecture was Alexander Wall who also worked for the third defendants in 1986. The plaintiff says that, for approximately six weeks in the autumn of 1986, he was employed in London by the third defendants at the invitation of Mr Wall to complete the construction of a model. After he had been so employed for about a week, he was asked by Mr Wall to take his Docklands plans to work so that Mr Wall might show them to another employee of the third defendants. The plaintiff took his Docklands plans to the third defendants' London office. Mr Wall asked him to leave them there over the weekend, and the plaintiff agreed to do so. He retrieved his plans from the third defendants' offices on the following Monday morning, noticing that the detailed plans had been physically detached from the paintings and drawings. He cannot prove directly that they had been copied, but he alleges that the second defendant or an employee of the third defendant not only had the opportunity to, but did in fact, copy his plans over that weekend.


The second, third and fourth defendants plead that the third defendant is a Dutch Company incorporated in 1988 to continue the work of a Dutch partnership called "the Office for Metropolitan Architecture" based in Rotterdam ("OMA"). The second defendant was a partner in OMA, which had been founded in 1979, and is also a director of the third defendants. The second defendant was not a partner in a different firm, also called "the Office of Metropolitan Architecture", founded in 1975 in London. The two firms were separate and carried on separate work. The London firm and OMA were not the same legal person. Mr Wall worked on a freelance basis for the London firm and the defendants understand that for a short period in 1986 the plaintiff did temporary freelance work for the London firm. The defendants plead that they do not know or admit whether the plaintiff took his Docklands plans to the premises of the London firm and they have no knowledge of what he alleges may have happened to them. They deny that the second defendant or an employee of the third defendant copied the plaintiff's plans. It is pleaded that the second defendant had never seen the plaintiff's Dockland plans before the beginning of this litigation and had never heard of them before the plaintiff began to make allegations which are said to be untrue. So far as is within his knowledge, these pleaded matters are verified in an affidavit of Mr Koolhaas which was before the judge. In his judgment, the judge noted that there would be a dispute about the plaintiff's allegations that the second and third defendants had access to his drawings, but he assumed in the plaintiff's favour for the purposes of the matters before him that the plaintiff's allegations about access to the drawings was true. This was of course the correct approach, since striking out applications normally proceed on the basis that pleaded allegations are capable of being established. The assumption must extend to one that the second or third defendants had a practical opportunity to have access to the plaintiff's plans whatever the precise relationship may have been between the English and the Dutch OMA.


Since this part of the defendants' application was made under the courts' inherent jurisdiction, they were entitled (as they would not have been if the application had been only under Order 18 rule 19(1)(a)) to tender affidavit evidence. The application was supported by Ian...

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