Donal Toner V. Kean Construction (scotland) Limited+crgp Architects And Surveyors And Partners Thereof
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2009] CSOH 105 |
| Court | Court of Session |
| Year | 2009 |
| Date | 17 July 2009 |
| Published date | 17 July 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 105 | |
| OPINION OF LORD BANNATYNE in the cause DONAL TONER Pursuer; against KEAN CONSTRUCTION (SCOTLAND) LIMITED First Defenders: And CRGP ARCHITECTS AND SURVEYORS AND PARTNERS THEREOF Second Defenders: ________________ |
Pursuer: Mr Lake Q.C.; MacRoberts
First Defenders: Mr Henderson; Lindsays, W.S.
17 July 2009
Background
[1] This action came before me for procedure roll at the instance of the first defenders.
[2] The first defender's counsel sought to argue his first two pleas in law. These pleas in law challenged first the competency of the pursuer's action and secondly the relevancy and specification of the pursuer's action. The second defenders were not represented at the procedure roll.
[3] The pursuer who is an architect seeks damages from the first and second defenders for breach of copyright. The damages were sought against each defender in terms of a separate conclusion. No issue of joint and several liability on the part of the defenders was raised in the pleadings. The first defenders are developers and builders. The second defenders are architects. The pursuer was instructed by the first defenders predecessor in title as an architect in relation to the development of various sites including Glebe Street, East Kilbride. The pursuer prepared certain drawings in relation to Glebe Street (hereinafter referred to as "the drawings"). That the pursuer's employment in relation to the various developments was terminated by the first defenders. The pursuer maintained that he had copyright in the drawings. The first defenders then employed the second defenders as architects in relation to the various developments. The second defenders then lodged drawings in respect of a planning application relative to the development at Glebe Street (hereinafter referred to as "the development"). The first defenders constructed the development in conformity with the planning permission. The pursuer alleged breach of copyright in so far as the second defenders were concerned in that they had copied substantial parts of the said drawings which were then used in support of the first named defenders planning application. The alleged breach of copyright in relation to the first named defenders was that they had constructed the buildings within the development in conformity with said copied plans.
Submissions for the pursuer
Competency
[4] The pursuer's counsel's broad submission under this head was that the action so far as directed against the first defenders should be dismissed on the basis that the action was incompetent.
[5] The first line of argument. In development of that submission counsel for the first defenders reminded me that the pursuer sought damages for breach of copyright from two separate defenders. The action brought against the two defenders sought damages in relation to two distinct wrongs, in that he submitted the breach of copyright in relation to each defender was different. The pursuer did not at any point aver that there was any question of joint and several liability on the part of the defenders. Rather there were two separate conclusions; one directed against each defender, each seeking damages for £50,000.
[6] He asserted that as a general rule, it was incompetent to sue more than one defender in the same action with separate conclusions against each based on separate and independent grounds of debt.
[7] In support of that submission he referred me to Treadwell's Drifters v RCL Limited 1996 SLT 1048.
[8] In that case, the company owned the whole recording and performance rights of a group "The Drifters". Certain individuals and companies were managing and promoting a group known as "The Sound of the Drifters" allegedly as "The Drifters". The singer in "The Sound of the Drifters" had previously sung with "The Drifters" and had contracted with the company not to utilise the name "The Drifters". The company sought, in separate conclusions in the same action, first, an accounting of profits from passing off against the individuals and companies jointly and severally; secondly, damages for breach of contract against the singer; and thirdly interdict against the promotion of performance of "The Sound of the Drifters" as "The Drifters". It was argued that it was incompetent for a pursuer to sue more than one defender in the same action, with separate conclusions against each defender, based on separate and independent grounds of debt.
[9] Lord Osborne held in that action that it required to be dismissed as incompetent and at page 1059 he gave the following reasons for his decision:
"In the first place, in Western Bank Liquidators v Douglas, at page 497, Lord Justice Clerk Inglis indicated that, if various defenders in an action are sought to be subjected in liability on separate and unconnected grounds, inferring separate individual liability merely, such a proceeding would be so flagrant a violation of ordinary practice that the summons concerned would be at once dismissed, regardless of what might once have been historical practice, as described by him at 496. The principle to which he referred, which I conceive to have been justified by the court's concerns, that the defenders should not be forced to be involved in an action in which some material part of the subject matter is unconnected with them, or their actions, is stated thus by McLaren at page 388 of Court of Session Practice; 'It is incompetent...for a pursuer to sue more than one defender in the same action, with separate conclusions against each defender based on separate and independent grounds of debt.'"
[10] Lord Osborne went on to apply the said principle to the facts of the case before him and opined as follows at page 1059:-
"...in these two conclusions ((a) for an accounting and (b) for damages), the pursuers are seeking against different defenders two different remedies. So far as the "grounds of debt" are concerned, in relation to the first conclusion, the ground is the delict alleged against the first, second, fourth and fifth defenders of passing off in respect of which the remedy of accounting is sought. In relation to the second conclusion, the ground of debt is an alleged breach of the terms of the last paragraph of the contract... I see these grounds of debts as separate and independent. Although it is true that they both arise from a common sequence of events, according to the averments of the pursuers, the legal requirements which the pursuers would need to establish to succeed are different in each case, as are the legal origins of liability. In the case of the alleged passing off, the pursuers would require to establish the elements of a passing off, recognising the various authorities to which I have referred, however, in relation to the second ground of debt stated against the third defender, what would require to be established would be that the third named defender had, to quote the wording of the contract concerned, "utilized the name" 'The Drifters'".
[11] Counsel conceded that the circumstances of the instant case were not as extreme as those in Treadwell's Drifters v RCL Limited. Nevertheless it was his submission that the rule set forth in that case when applied to the circumstances of the instant case required me to hold that it was incompetent.
[12] It was his submission that the underlying rationale for the principle as set out by Lord Justice Clerk Inglis was: that a particular defender should not be a spectator for material parts of the case while matters which solely related to another defender were being dealt with. He submitted that in the instant case that would be the position so far as the first named defenders were concerned in that while the court was dealing with the issue of copying of the drawings by the second named defenders, the first named defenders would have no interest in this and would thus be mere spectators. It was his position that it was likely that a substantial part of the proof would be taken up with the pursuer seeking to establish this copying of substantial parts of the drawings by the second named defenders. For these reasons he submitted that, the action as averred fell four square within the said principle and was incompetent.
[13] Counsel's second submission under this head was a short and sharp one. It was to the effect that the action was either incompetent or irrelevant in that there were no averments setting out the basis either in terms of statute or at common law upon which the claim was made. For the purposes of this argument he assumed that the case against the first named defenders and the second was based upon a breach of the Copyright Patent and Designs Act 1988 (hereinafter referred to as "the Act").
[14] However, it was his position that (1) if that was the case, then there was no reference to the Act within the pursuer's averments; (2) there was no reference to the sections of the Act which were founded upon; (3) there was no reference within the pursuer's averments to what he described as "key words" for example, at no point was any work done averred to be by the pursuer or that it was original (see section (1)(1) of the Act) and therefore the pursuer was not offering to prove that the drawings were original or that the pursuer was the author thereof. It was thus his position that there were no pleadings from which the court could hold that the pursuer had enjoyed copyright in the drawings and that there thus had been a breach in the said copyright.
[15] By analogy with reparation actions prior to the Coulsfield reforms, he submitted that a personal injury action in which the pleadings lacked averments of a similar type eg. Setting out the statute and the sections thereof which were said to have been breached would have been held to have been incompetent or irrelevant et separatim lacking in specification.
[16] The third submission under the head of competency was concerned with a short...
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...ground and the case that was made against them jointly and severally was based on another, the action was incompetent. 30 In Toner v Kean Construction (Scotland) Ltd 2009 SLT 1038 an architect raised an action against developers and a firm of architects subsequently employed by them for bre......