Point Solutions Ltd v Focus Business Solutions Ltd
| Jurisdiction | England & Wales |
| Judge | JUDGE KIRKHAM |
| Judgment Date | 16 December 2005 |
| Neutral Citation | [2005] EWHC 3096 (Ch),[2005] EWHC 2873 (Ch) |
| Court | Chancery Division |
| Docket Number | HC 04C No. 03870,Case number: HC 04C 03870 |
| Date | 16 December 2005 |
[2005] EWHC 2873 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Court 10
Technology & Construction Court
133–137 Fetter Lane
London
EC4A 1HD
Her Honour Judge Kirkham
HC 04C No. 03870
MR G FERNANDO and MS A EDWARDS-STUART (instructed by Messrs Withers LLP) appeared on behalf of the Claimant
MR P COLLEY (instructed by Moore Solicitors) appeared on behalf of the Defendants
RULING
Thursday, 24th November 2005
APPROVED Ruling
: On this point, Mr Fernando, in cross-examining Mr Thelwell yesterday, spent a fair amount of time asking Mr Thelwell detailed questions about the disclosure exercise (and I put that in the broadest of terms) which the defendants have undertaken in relation to this case.
Mr Colley has submitted this morning that there is misunderstanding or confusion because, in reality, he says there have been three phases of the disclosure exercise. He says that where matters have gone off the rails is that the second, what should have been the second phase, any further disclosure after the claimants had answered the defendant's Part 18 request was not undertaken by the defendants at that stage.
My Lady, I am terribly sorry to do this. Could you just say that to me again. If that is your Ladyship's understanding of my submission, I have made myself not clear. I am really sorry about this. I am very sorry.
: Mr Colley, when you were making your submissions to me you identified phase 2 as—what I wrote down was this, "When we should have done a supplemental list explaining that there were no new relevant documents to disclose."
My Lady, yes, but the point which I think either I have not made or your Ladyship—
: Item 2 was the subsequent search after the Part 18 request.
Of which there was one.
: Of which there was one.
I am obliged, my Lady. I am terribly sorry.
: In his evidence yesterday, Mr Thelwell was taken extensively by Mr Fernando to the steps which he, as the person responsible for liaison with solicitors, for seeing correspondence that went out and dealing with disclosure, signing statements of truth and so on, had done in relation to disclosure.
Mr Colley submits that a confusing and, using my words, possibly misleading picture will have been presented because those questions were not put within the correct procedural context.
Mr Colley submits that the defendant's disclosure exercise falls into three phases. The first was a search which led to the defendant's original disclosure list. The second was a search made after the claimant responded to the defendants' Part 18 request. The third relates to the claimant's request for specific disclosure. The relevant phase, in respect of the ruling Mr Colley now seeks, is in relation to phase 2, ie after the claimants had answered their Part 18 request, a further search was done and it was concluded that no further documents were to be disclosed.
Two points arise. The first is how Mr Colley should deal with this in re-examination of Mr Thelwell, because we are part-way through Mr Thelwell's evidence, and, secondly, he wishes to produce a supplemental disclosure statement which he is proposing Mr Murray should be asked to deal with in order to explain what the defendants did in relation to phase two of the disclosure process, in order to assist and to prevent misunderstanding. He submits that this is a matter of fundamental fairness to the defendants.
The claimants, on the first day of trial, were considering pursuing an application for an order for specific disclosure and it was decided not to pursue that application. The questioning of Mr Thelwell yesterday was, it seemed to me, in part, was against the background that the claimants took the view that sufficient disclosure had not been given. I reminded Mr Fernando during the session yesterday that this was not to be a back door attempt by the claimant to make an application for further disclosure. Either they make it or they do not make it, and trying to deal with that through cross-examination of a witness was not necessarily going to be an appropriate way forward.
It seems to me that this is largely a question of form and not substance. The defendant says that all documents have now been produced, by whatever means, and are in. If there has been a procedural failure to explain a second stage in the disclosure process, then that, it seems to me, is a procedural mishap which is the fault of the defendants and not of the claimant.
The question of whether remedying that procedural mishap is going to assist me at all in relation to the issues which I have to try in this case, is one on which I have to say that I have some doubt. The issues in this case are going to go to the question of copying/non-copying, relating to the declaration that the claimant is seeking, and will involve the court in dealing with the claimant's pleaded claim as to assertions made, all as they have pleaded in detail.
It seems to me that Mr Colley must deal with his re-examination of Mr Thelwell as best he can on the basis of the questions which have been put and the available material. If the defendant's solicitors wish to set out in a document to be given to the claimant what they say the position is with respect to the disclosure exercise, then of course there is nothing to prevent them doing so. As to whether it is necessary for that exercise to be specifically confirmed in evidence, I have some doubt because it seems to me that this is, as I said at the beginning, largely a question of form and not substance.
However, if there are issues of fact which have not been made sufficiently clear and should be clarified so that the court has the full picture in order to do justice on both sides, any misapprehensions as to matters of fact should be corrected. If there are issues of fact which need to be corrected, then they will necessarily have to be supported by a witness. The defendant has, as I understand it from Mr Colley's submission, chosen Mr Murray to deal with this. As to whether Mr Murray can genuinely speak to this or not, well, that is a matter which remains to be seen.
In those circumstances, it seems to me that if there are issues of fact as to searches of documents which the defendants consider are relevant and important, and should be clarified, then it seems to me that they should do so.
But I say that against the background, firstly, as I have said, that the evidence which Mr Thelwell has already given, given the substantial opportunity he was given in cross-examination yesterday to explain the disclosure process for which he was responsible, and, secondly, that if one is simply trying to correct a mishap in the procedural process, then that seems to me to have little, if any, merit in terms of dealing with the issues between the parties.
I would certainly not wish to put the claimant into any difficult position so far as cross-examination of witnesses with respect to this issue is concerned. But I am anxious that, while it is an issue which may not be of central importance within it is nevertheless taking on a greater significance than it should have in relation to the issues here.
So far as Mr Thelwell is concerned, Mr Colley should deal with re-examination in the normal way. So far as any supplemental disclosure explanation is concerned, that can be done. I give permission to Mr Colley and Mr Moore to speak to Mr Murray to ask him if he is able to put his name to a supplemental disclosure statement.
[2005] EWHC 3096 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Her Honour Judge Frances Kirkham
Case number: HC 04C 03870
Mr Giles Fernando and Miss Anna Edwards-Stuart of Counsel (instructed by Withers) for the Claimant
Mr Peter Colley of Counsel (instructed by Moore) for the Defendants
Date of hearing: 21, 22, 23, 24, 25 and 30 November 2005
Date of draft judgment: 12 December 2005
I am obliged to Mr Fernando, Miss Edwards-Stuart and Mr Colley for their assistance with this matter.
Contents
Paragraphs 1–15 Introduction
Paragraphs 16–49 Background
Paragraphs 50–58 Focus' advice to sales force 2002/2003
Paragraphs 59–61 Expert evidence in the proceedings
Paragraphs 62–69 The Law
Paragraph 70 The Issues
Paragraphs 71–76 Has there been sufficient assertion? 9 October 2002 letter and subsequent correspondence
Paragraphs 77–87 Swiss Life
Paragraphs 88–94 The Exchange
Paragraph 95 Point's defence
Paragraphs 96–114 Has Point proved that it did not copy Focus' source code?
Paragraphs 115–121 Utility
Paragraphs 122–131 Discretion
Paragraphs 132–138 Conclusions
Introduction
The claimant, Point, has been established since about 1995. It carries on business as a provider of computer software services for financial service institutions. It develops, writes and supplies software for use by companies in that sector. The second defendant owns the entire issued share capital of and controls the first defendant. For the purposes of this action, there is no material difference between the two defendants and I refer to them, collectively, throughout as Focus. Focus was also established in about 1995. They are substantial players in the provision of computer software and services in the financial services sector.
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Point Solutions Ltd v Focus Business Solutions Ltd
...is owned and controlled by the second. 2 The relief sought in those proceedings was unusual. As the judge put it in her judgment, [2005] EWHC 3096 (Ch): “I am being asked to make a declaration that software, which I have not seen, does not infringe any copyright in another software product......