A warning – understand your case

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Two recent cases demonstrate how essential it is to properly understand your case before you pursue a particular argument.

One case is a claim concerned with the alleged infringement of copyright in architect’s plans. The other is a defence concerned with the extent of a main contractor’s duty in respect of the negligence of its sub-contractor.
 

Signature Realty Ltd v (1) Fortis Developments Ltd (2) Beaumont Morgan Developments Ltd

Signature obtained planning permission to convert existing buildings into student accommodation. It failed to raise funds to develop the site and it was sold to the defendants, who completed the development.

To obtain planning permission Signature submitted architects’ drawings. The architects owned the copyright but granted a licence to Signature to use them. A condition of the planning permission was that the development must be carried out in accordance with the drawings. The application and the drawings were posted on the planning portal. The defendants downloaded the drawings and used parts of them for estimation and marketing purposes and, to some extent, for construction purposes.

Signature discovered that Fortis had bought the property and developed the site so it persuaded the architects to assign the copyright and the right to sue the defendants for damages. Signature then alleged that 1) it owned the planning permission; 2) the defendants were liable for copyright infringement; 3) the infringement was flagrant; and 4) it was entitled to an injunction against continued exposure on the internet and/or on Twitter of those drawings whose copyright had been found to be infringed.

The court found that many of the drawings did not infringe copyright, but some did. Signature’s costs in obtaining planning permission were said to be £360,000. The cost of the drawings was £20,000. In addition to the cost of the drawings, Signature claimed for planning costs, loss of opportunity to make profits, statutory additional damages based on the flagrancy of the defendants’ conduct and an injunction.

The claim failed on most counts because 1) planning permission did not belong to Signature and the drawings were in the public domain; 2) only part of the copyright in the drawings was infringed; 3) there was no finding of flagrancy in the defendants’ conduct; and 4) no legitimate interests in the copyrights were identified that required the imposition of an injunction.

Although there were some infringements, the court did not rule on quantum, but ordered an inquiry in the usual way. It noted, however, the force of the defendants’ arguments against claims for wasted expenditure, loss of opportunity to make profits and loss of opportunity to prevent construction while negotiating the impact of the infringements, but declined to say more.
 

Willmott Dixon Construction Ltd v Robert West Consulting Ltd

Willmott Dixon appointed Robert West to design (among other things) the underpinning of a gable wall shared with a neighbouring property. Robert West sought to defend itself from the allegation that its design was defective by asserting that Willmott Dixon had a non-delegable duty to procure the careful performance of the works by the independent sub-contractor who carried out them out. This was based on the assertion that the exception to the general rule that a main contractor is not liable for the negligence of its independent sub-contractor applied.

The court confirmed that the elements of the exception depend either on actual knowledge that the work was being done in a foreseeably dangerous way, and that it was condoned, or that there was a withdrawal of support by the owner of one property which causes damage to the adjoining property.

The court found that underpinning works were not exceptionally hazardous and/or inherently dangerous because, for them to be so, it would have to be shown that the works would have been exceptionally hazardous and/or inherently dangerous no matter what precautions had been taken. The court concluded that the withdrawal of support exception only arises between neighbouring landowners, and not between a landowner and a third party. The amendments had no real prospect of success and were “an ingenious but illegitimate attempt to render the main contractor vicariously liable for the acts or omissions of its independent sub-contractor.”

Comment

These two cases are examples of a failure to fully analyse a case from the outset. In Signature the claim appears to have been driven by the claimant’s aggravation at a failed development opportunity. In Willmott Dixon the defendant’s very late (less than a month before trial) attempt to shift liability to the claimant failed due to a misunderstanding of the elements required to establish a non-delegable duty.

Litigants beware – litigation is uncertain and neither claim nor defence should be embarked upon without a full investigation into the case you are arguing.

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