Technomed Ltd and Another v Bluecrest Health Screening Ltd and Another
| Jurisdiction | England & Wales |
| Judge | David Stone |
| Judgment Date | 24 August 2017 |
| Neutral Citation | [2017] EWHC 2142 (Ch) |
| Docket Number | Case No: HC-2016-000257 |
| Court | Chancery Division |
| Date | 24 August 2017 |
[2017] EWHC 2142 (Ch)
David Stone
(sitting as a Deputy High Court Judge)
Case No: HC-2016-000257
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jonathan Hill (instructed by Beale & Company) for the Claimants
Ms Madeleine Heal (instructed by Perrin Myddelton) for the Defendants
Hearing dates: 17, 18, 19, 20, 21 July 2017
David Stone (sitting as Deputy High Court Judge):
In these proceedings, the claimants Technomed Limited and Technomed Telemedicine Limited (whom I shall collectively call "Technomed" as nothing now turns on the distinction between them) claim that the defendants, Bluecrest Health Screening Limited ("Bluecrest") and Express Diagnostic Limited trading as Cardio Analytics ("Express") have infringed their database right and their copyright in their electrocardiogram ("ECG") analysis and reporting system known as ECG Cloud.
This judgment relates only to the allegations of database right and copyright infringement. Bluecrest's counterclaim for breach of contract has been split from the intellectual property claim and stayed pending the resolution of this aspect of the dispute.
At trial, Mr Jonathan Hill appeared for Technomed and Ms Madeleine Heal appeared for Bluecrest and Express. I am grateful to counsel and to those instructing them for their assistance.
The witnesses
The following witnesses gave evidence.
Technomed's witnesses
Mark Hashemi
Mr Hashemi is the founder and managing director of Technomed and of parent company, Technomed (Group) Limited. Mr Hashemi has worked in the cardiac rhythm diagnosis and management industry since 1988 in sales, clinical support and senior management roles. He is not medically trained, but has through practice acquired a good working knowledge of ECGs in a clinical setting. As part of Technomed's opening statement at the trial, Mr Hashemi gave a PowerPoint and live demonstration of Technomed's ECG Cloud system, and later confirmed the truth of that presentation. Mr Hashemi also gave written and oral evidence of the development of ECG Cloud and Technomed's relationship with Bluecrest. Ms Heal criticised Mr Hashemi's oral testimony (but not his presentation), suggesting that he "dissembled, played for time and would not answer questions initially when they were put to him". I do not accept that criticism. Whilst, as is accepted by Mr Hill, Mr Hashemi was occasionally combative in his responses, I accept that he gave a truthful account of both the development of ECG Cloud and Technomed's relationship with Bluecrest.
Robin Fuller
Mr Fuller is employed by Technomed as a web-systems developer, a position he has held since 2010. He is also a shareholder of the second claimant. He gave evidence as to the development of ECG Cloud and the relationship with Bluecrest. He also assisted with Mr Hashemi's demonstration of ECG Cloud. He was a clear and careful witness.
Dr Mark Sopher
Dr Sopher is a consultant cardiologist based at the Royal Bournemouth Hospital since 2005. He is an experienced cardiologist, with a sub-speciality interest in cardiac rhythm management. In addition to his full-time clinical role, he acts as a free-lance consultant to Technomed, through a company, providing an auditing service for ECGs reported by cardiac physiologists using ECG Cloud. He is also a shareholder of the second claimant. Dr Sopher gave evidence of his work with Technomed and the development of ECG Cloud, including its further development for the purposes of Technomed's relationship with Bluecrest. Dr Sopher was put forward as a witness of fact. I found Dr Sopher to be a cogent and helpful witness.
Christopher Dickson
Mr Dickson is the principal of Framley Limited, a software engineering practice. He has over 25 years' experience of designing and writing software. Mr Dickson gave expert evidence in relation to Technomed's ECG Cloud software, Express's software ("EAnalyse"), and his opinion on the comparison of the two. In addition to his witness statement, Mr Dickson also co-authored a Joint Statement of Experts together with Mr Nigel Young, the defendant's expert on this subject. There was a large degree of agreement between Mr Dickson and Mr Young, and no criticism was made of Mr Dickson's evidence. He was a careful and frank witness.
Bluecrest's and Express's witnesses
Peter Blencowe
Mr Blencowe is the managing director of Bluecrest. His background is in marketing – he is not medically trained. He gave evidence as to the relationship between Technomed and Bluecrest, and between Bluecrest and Express. Mr Hill submitted that Mr Blencowe's oral testimony could not be relied on, saying that it was evasive. Mr Hill described Mr Blencowe as "often giving long speeches about irrelevant matters". I agree with that criticism. Whilst Mr Blencowe no doubt believed himself to be assisting the court to the best of his ability, I found his evidence to be made up of repetitive restatements of Bluecrest's case, rather than answers to the questions put to him. Where Mr Blencowe provided in his oral evidence his interpretation of documents from 2013 and 2014, I prefer to accept the documents for what they say, rather than the gloss Mr Blencowe placed on them in his evidence.
Ian Jarvis
Mr Jarvis has been a director of Express for 20 years. His background is in accounting – he is not medically trained. He has many years of practical experience of ECG interpretation and reporting. As part of the defendants' opening statement, he gave a presentation by PowerPoint and video of Express's EAnalyse system, and later confirmed the accuracy of that presentation. He also gave evidence about EAnalyse, and the relationship between Express and Bluecrest. Mr Hill also criticised Mr Jarvis's oral evidence. With one caveat, I do not accept those criticisms. Whilst Mr Jarvis occasionally strayed from matters that were within his knowledge, he accepted this when it was put to him. Mr Jarvis was asked in cross-examination about the meaning of documents from December 2013 and January 2014. I do accept that the gloss Mr Jarvis attempted to put onto those documents was not accurate, and prefer to accept that the documents mean what they say.
Nigel Young
Mr Young is a computer consultant, put forward as an expert witness. He gave evidence of his technical investigation of ECG Cloud and his comparison with EAnalyse. As noted earlier, in addition to his witness statement, together with Mr Dickson he provided a joint statement of experts, recognising significant agreement between them. Mr Young's evidence did not adequately follow the rules and guidance applicable to expert witnesses, but I do not consider that this is something for which he can be criticised. I found his answers to questions put to him to be clear and cogent.
Professor Harry Mond
Professor Mond is a Specialist Physician in the Department of Cardiology at the Royal Melbourne Hospital and medical director of Cardioscan Pty Limited ("Cardioscan"), a company which provides ECG monitoring services. He was presented as an expert witness. He gave his opinion on Technomed's materials in a brief six paragraph witness statement. Professor Mond's cross-examination was hampered by technical difficulties that resulted in a planned video-link with Australia being substituted for by use of an ordinary mobile phone on speaker placed in the middle of the courtroom. Whilst this was by no means optimal, I am satisfied that Professor Mond's cross-examination proceeded in a satisfactory manner, and neither Mr Hill nor Ms Heal suggested otherwise. However, early in cross-examination, it became apparent that Professor Mond's company Cardioscan was in commercial discussions with the second defendant, Express. When asked, Professor Mond immediately, and quite properly, agreed that he had a common interest with one of the defendants in this case. I was told from the bar table, and I accept, that this was the first Ms Heal had heard of it. It also became clear in cross-examination that the manner in which Professor Mond was instructed as an expert was unusual, and not as set out in his written report. His written report states that he was instructed by the defendants' solicitors, and sets out at paragraph 6 a typical declaration under Part 35, including a statement "I know of no conflict of interest of any kind". When questioned, it became apparent that Professor Mond's instructions had in fact come from an officer of Cardioscan and two members of the board of that company, not from the defendants' solicitors. He was provided with some materials, and, if there was any explanation of those materials it was, in his words, "extremely brief and of no real help". He then prepared a letter, which took him half an hour. That letter was later turned into his report.
Both Mr Hill and Ms Heal addressed me in detail in closing submissions on Professor Mond's evidence. Mr Hill described Professor Mond's evidence as "wholly valueless" for the reasons including those I have set out above. Ms Heal explained that Professor Mond had been instructed for some time as an expert witness in the counterclaim. She submitted that it was open to me to find that Professor Mond's evidence was tainted by the issues I have identified, and that it would now be inappropriate for Professor Mond to give expert evidence in the counterclaim. Nevertheless, she submitted that I ought to rely on Professor Mond's written and oral evidence in this part of the case. She referred me to page 1098 of the White Book and the cases cited there, and, after the close of the trial, to The Governors and Company of the Bank of Ireland and Anor v...
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