Stovin-Bradford v Volpoint Properties Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE MEGAW |
| Judgment Date | 24 May 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0524-1 |
| Date | 24 May 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0524-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from judgment of Mr. Justice Graham on 28th July, 1970.
The Master of the Rolls (Lord Denning),
Lord Justice Salmon and
Lord Justice Megaw
Mr. RAPH LUNZER and Mr. WILSON (instructed by Messrs. Vizards) appeared on behalf of the appellant defendants.
Mr. MICHAEL FYSH (instructed by Messrs. Penningtons & Lewis & Lewis) appeared on behalf of the respondent plaintiff.
Mr. Stovin-Bradford is a Fellow of the Royal Institute of British Architects. He has many factories to his credit. Mr. Gordon and Mr. Aston are property developers who are interested in industrial buildings. They acquire sites, build factories and sell them. They have their own property company, Volpoint Ltd. which has its offices in Wraysbury. They have their own building company, called Gaston Builders Ltd., which has its offices at Salisbury. They have a drawing office there with their own draughtsmen, who make plans for their buildings. But they have not a qualified architect.
In 1966 Messrs. Gordon and Aston spotted an old factory at Colthrope Lane, Thatchom, near Newbury. A company called Uniment Ltd. manufactured concrete and breeze blocks there; but it was in a bad way, being in the hands of a receiver. Messrs. Gordon and Aston saw considerable potential in it. They decided to do as they had done elsewhere, namely, to acquire the company, get planning permission to put up a factory and sell it. All went well at first. They bought the shares in Uniment Limited. They applied, in the name of Volpoint Limited., for planning permission to put up seven large warehouse buildings. But the planning authority deferred the application. They did not like it. It was "too tight".
At this juncture Mr. Gordon and Mr. Aston sought the help of Mr. Stovin-Bradford. They had seen his work and knew that he was "extremely good in presenting a pretty picture". So they asked him to come and see them with the object of providing "a pretty picture for the benefit of the local authority". On 13th July 1966 MR. Stovin-Bradford went to Salisbury where he saw Mr. Gordon and Mr. Aston and their draughtsman. The result was that Mr. Stovin-Bradford agreed to produce a plan for work to the existing buildings. Two big structures were to beextended and made to look as one. The fee was discussed. Mr. Stovin-Bradford did some mental arithmetic. He thought it would take four days at 25 guineas a day, making 100 guineas. This figure was accepted. The Judge expressed the agreement as follows:
"The agreement reached between the parties was a very simple one and amounted to this: that the plaintiff would suggest architectural improvements to Mr. Gordon's existing plans for the modification and extension of the building in question for the purpose of trying to obtain planning permission, and that he would receive for this plan the sum of 100 guineas as his out-of-pocket expenses."
On 28th July 1966 Mr. Gordon sent his existing drawing to Mr. Stovin-Bradford: adding: "I am sure it will benefit from the Bradford treatment" - thus showing his appreciation of Mr. Stovin-Bradford's special skill.
In the next fortnight or so Mr. Stovin-Bradford prepared plans showing extensions to the existing building, but also containing a special and distinctive feature which was diamond shaped and gave a very pleasing appearance to the whole building. If the work had been done in accordance with the plan, the estimated cost would be in the region of £90,000.
On the 16th September 1966 Mr. Stovin-Bradford submitted his plan to the planning authority. But before knowing their decision, something happened which worried him. Much of it was hearsay, but no objection was taken to it, no doubt because of the Civil Evidence Act, 1968. Mr. Stovin-Bradford told the Court that in September of 1966 Mr. Aston asked him to design an extension to a factory at Bootle in Lancashire. Mr. Stovin-Bradford discovered that another architect had already been employed on it. In accordance with professional etiquette, Mr.Stovin-Bradford telephoned that other architect. That other architect told him that Messrs. Gordon and Aston had employed him to get planning permission. He had done it, but afterwards Messrs. Gordon and Aston said they themselves would do all the rest of the work, i. e., prepare working drawings, obtain estimates from sub-contractors and so on: whereupon that other architect had withdrawn his drawings and sent in his account. That other architect told Mr. Stovin-Bradford that the method they had adopted was to employ an architect to get their problems solved and thereafter make use, of the plans as they wished for the erection of the building.
As a result of that information, Mr. Stovin-Bradford determined to send in his account at once: and to make it clear that he had the copyright of his plan: and that Messrs. Gordon and Aston could not make use of it. His account was in these words:
"Monday
September 26th, 1966.
Statement No. 1
To professional services:
To making inspection, preparing sketch plans and design drawings in sufficient detail to obtain/apply for town planning permission. Work to existing building.
Agreed Nominal fee 100 gns
£105
Plus: chargeable out-of-pockets/printing
12
4
2
£117.
4.
2.
With compliments".
Then he added these words:
"The copyright of the design remains with the architect, and may not be reproduced without his prior written consent."
It is to be noticed that Mr. Stovin-Bradford underlined the words "Agreed Nominal Fee 100 gas." That is important. If Mr. Stovin-Bradford had charged the full scale fee up to that stage, it would have been calculated as one-sixth of the full fee for the whole work. Assuming that the estimated cost of the work would be £90,000, the full fee would be 6% of that sum, that is, £5,400. One sixth would be £900. So that the scale fee up to that stage would be £900, or at any rate a sum greatly in excess of 100 guineas. Mr. Stovin-Bradford very properly described 100 guineas as a nominal fee.
Mr. Gordon received the account. He did not trouble to read it, or if he did, it did not register on his mind at all. He sent a cheque for the amount. Mr. Stovin-Bradford received the account and sent it back.
At this point, the planning authority had not given their decision. Later on, in November 1966 there-was a meeting with the planning officer which was attended by Mr. Stovin-Bradford and Messrs. Gordon and Aston. The planning officer said he could not see how they could put up the building without an industrial development certificate. There was a discussion which left Mr. Stovin-Bradford dis-satisfied with the way in which the matter was being handled. On this account he decided to withdraw from the project altogether. He did no more for Messrs. Gordon and Aston.
Later on, on 8th December 1966, the planning authority did turn down Mr. Stovin-Bradford's application because there was no industrial development certificate. It appears that afterwards the defendants did make another application for planning permission, which was granted. Mr. Stovin-Bradford knew nothing of this. Many months later, in October or November 1967 he happened to be in the neighbourhood of the factory andpassed the site. He saw at once from the road that the defendants had incorporated in the building the distinctive diamond-shaped feature which he had put in his own plan. He at once instructed solicitors to claim damages for infringement of copyright. At that time Mr. Stovin-Bradford did not know whether the defendants had taken anything more of his plan in addition to the diamond-shaped feature. But it turned out at the trial that they did not use much of his plan. The one important thing which they did use was this diamond-shaped feature. The Judge found that there was an infringement of copyright and awarded £500 damages. The defendants appeal to this Court both on Infringement and on damages.
INFRINGEMENT of COPYRIGHT
Although nothing was said about the conditions of engagement, it is clear that both parties were familiar with the conditions issued by the Royal Institute of British Architects, then in the form of a little grey book, and may be assumed to have regard to them. (There has been a new issue since.) Those conditions in the little grey book were the same as this Court considered in the recent case of Blair v. Osborne and Tomkins. The defendants argued that that case is a decisive authority against the architect. The result of it was, said the defendants, that whenever an architect prepared plans so as to get planning permission, the client could use them for the building, as he liked, without further payment, even though he did not employ the architect for the work. I do not think that is a correct interpretation of Blair v. Osborne & Tomkins, or of the Australian case of Beck v. Montana Constructions Proprietary Ltd. ( Supreme Court of New South Wales Reports 1963 page 229). In view of the discussion which we have had, I think the law stands thus:
When an architect prepares plans at the request of a client, the copyright remains in the architect. The client cannot reproduce those plans or any substantial part of them, either in the form of another plan or in the form of the building itself, unless he has the license of the architect, express or implied. There is nothing in the R. I. B. A. conditions which gives him an express license. But when the architect charges the full scale fee for the work so far done, that fee in the ordinary way must be taken to include permission to use the plans for the building of that very house. That I think follows from the very...
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