Redrow Homes Ltd and Another v Bett Bros plc and Another [1998] 1 All ER 385
| Date | 01 January 1999 |
| Pages | 252-253 |
| Published date | 01 January 1999 |
| DOI | https://doi.org/10.1108/eb025889 |
| Author | Stanley Lai |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 6 No. 3 — Intellectual Property
BRIEFINGS
INTELLECTUAL PROPERTY
Redrow Homes Ltd and Another v Bett Bros plc
and Another [1998] 1 All ER 385
Stanley Lai
CASE NOTE
Originating from a Scottish action, this seminal
House of Lords decision rules on the narrow ques-
tion of awarding 'additional damages' under
s. 97(2) Copyright, Designs and Patents Act 1988
(hereinafter referred to as CDPA), in a situation
where an account of profits was sought by a pur-
suer.
In this action the pursuers were builders and
developers of residential homes, who proceeded
against the defenders for copyright infringement
taking the form of design replication in the course
of building and construction. The pursuers
claimed an account of profits for the infringement,
the payment of a sum equivalent to such profits,
and additional damages under s. 97(2) CDPA,
which states:
'... The court may in an action for infringement
of copyright having regard to all the circum-
stances, and in particular to — (a) the flagrancy
of the infringement, and (b) any benefit accru-
ing to the defendant by reason of the infringe-
ment, award such additional damages as the
justice of the case may require.'
No claim for ordinary damages was made. The
defenders argued that on a true construction,
s. 97(2) CDPA did not entitle the pursuers to
claim for additional damages in conjunction with a
claim for an account of profits where no claim for
ordinary compensatory damages was made. The
pursuers on the other hand argued that s. 97(2)
provided a sui
generis
and independent remedy,
which could be awarded regardless of whether a
claim for the account of profits was made.
For this the pursuers relied heavily on Laddie J's
judgment in Cala Homes (South) v Alfred McAlpine
Homes (East) (No. 2) [1996] FSR 36, which was
the only case to date directly in point. Laddie J
took the following view (at pp. 40, 43):
'Section 97(2) is quite separate from section 96
and is concerned with the court's power to
award "additional damages as the justice of the
case may require". That is to say damages addi-
tional to the relief ordinarily available under
section 96(2). It follows that if the justice of the
case so requires, the statutory additional dam-
ages under the subsection may be ordered
whichever form of financial relief under section
96(2) the plaintiff chooses ... it follows that in
so far as the defendant seeks to deny the plain-
tiffs additional damages by tying them to dam-
ages under section 96(7) because both are
"compensatory" and must therefore be dealt
with in tandem, its arguments are not supported
either by the wording of section 97(2) or its
legislative history.'
After reviewing the legislative history of s. 97(2)
CDPA, including its forerunner, s. 17(3) Copy-
right Act 1956, as well as the Gregory Committee
and Whitford Committee Reports (Cmd 8662
(1952) and Cmnd 6732 (1977) respectively), Lord
Jauncey took the view that s. 17(3) Copyright Act
1956 provided that additional damages could only
be awarded when normal compensatory damages
were being assessed, and this position was not
materially altered by s. 97(2) CDPA. In his Lord-
ship's view the lower court was correct in deciding
that a claim to additional damages does not lie
Page 252
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