Pinsent Masons Computer Law Reports
In-depth analysis of UK court rulings that impact on
the information, communications and technology industries from
Pinsent Masons' dispute resolution experts
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The case reports (most recent first)
I-Way v World Online Telecom
(2007)
Clauses prescribing the procedure by which a contract may be varied
are typical boilerplate provisions. There is no binding authority
on whether such clauses are effective – this case looked set to
consider the point but is ultimately inconclusive. Despite this,
the arguments advanced by each side may be of interest.
DPP v Lennon (2006)
The first reported criminal case in the UK relating to a denial of
service attack. The court, on appeal, found that that a denial of
service constituted an offence of unauthorised modification under
s.3 of the Computer Misuse Act 1990.
Vertex v Powergen (2006)
In this case a business process outsourcing service provider
responded to a notice of termination from its customer by seeking
an injunction to prevent the customer from terminating the contract
and from otherwise hindering the service provider's continued
performance.
Clearsprings v BusinessLinx
(2005)
A look at implied terms in a software licence in the context of
rights to use and resell the software.
Viasystems v Thermal Transfer
(2005)
A case which establishes (contrary to accepted opinion since the
1800s) that dual vicarious liability can apply in an employment
situation. This decision is potentially significant in outsourcing
contracts.
Dalkia Utilities v
Celtech (2004)
Can non-payment of invoices amount to material breach? The answer
depends on a number of factors, the most important of which is the
circumstances in which the breach arises. This case considered the
point in the context of a long term agreement where the defendant
failed to pay a contractor's invoices for three consecutive months.
Despite the agreement being for a term of fifteen years, a failure
to pay for three months was sufficient to constitute a material
breach.
Phoenix v Cobweb (2004)
This case considers a number of important issues concerning
contractual termination rights. In particular, it examines the
meaning of “irremediable” in the context of a clause requiring
notice to cure remediable breaches before the right to terminate
could be exercised.
Co-op v ICL (2003)
In a dispute as to the formation of an agreement for the provision
of services by ICL the judge provided directions on the conduct of,
and case management in, substantial project disputes, including
guidance on summary judgment, strike-out, and trial on a
preliminary issue.
Astea v Timegroup (2003)
This case provides guidance on the factors which a court may
consider when determining whether a party has complied with an
obligation to perform within a "reasonable time".
Hadley Design v Westminster Council
(2003)
A construction industry case which provides guidance on the meaning
of "written standard terms of business" under the Unfair Contract
Terms Act 1977.
IBS Technologies v APM Technologies
(2003)
In circumstances where the claimant sought in injunction to prevent
copyright infringement the injunction was not granted (but a speedy
trial ordered) because the effect of the injunction would be to put
a stop to the defendant's business.
BCT v Arnold Laver (2002)
In a case where the Claimant unsuccessfully argued that a right to
use software was dependent upon paying for support of that
software, the judge emphasised that express terms and conditions
agreed between the parties to a contract will take precedence over
standard terms.
Cable & Wireless v IBM
(2002)
In circumstances where parties to a global IT Services Agreement
had fallen into dispute, the court stated they were obliged to
participate in the ADR Procedure they had agreed and included in
the Agreement before proceeding with litigation.
Logistic Resources v Eastgate Group
(2002)
This case highlights the need for clear and unambiguous agreements
as to how parties will share in the fruits of software which is
developed for one purpose but may prove marketable to third
parties.
Reed v Reed (2002)
Use of a competitor’s name in invisible metatags may amount to
passing off or trade mark infringement.
Sam Business Systems v Hedley
(2002)
In considering the extent of a customer’s remedies following a
difficult implementation process the Court ruled that the
Defendant's exclusion and limitation clauses were effective, and
provided an indication of the approach of the Technology &
Construction Court to exclusion and limitation clauses following
the decision in Watford v Sanderson.
Sony Computer Entertainment v Paul
Owen (2002)
The Court outlawed the sale and installation of mod chips in Sony
PlayStation 2 consoles, which would allow the console owner to use
region coded software from any region, as well as pirated software.
The Court made it clear that it did not matter if there were legal
uses of the mod chips.
Spectra v Tiscali (2002)
This case considered whether a contract could be inferred from a
series of meetings about a joint venture concerning internet
televisions. The Court decided that it was the intention of the
parties in carrying out its discussions that was key to determining
whether the parties intended to be bound.
1-800 Flowers v Phonenames
(2001)
The Claimant tried to register an alpha-numeric telephone number as
a service mark. The Court found, as one of the grounds for refusing
the registration, that the mark did not have the requisite capacity
to distinguish, since it was no more than an encoded telephone
number.
Ansys v Lim (2001)
When a software company terminated a distribution agreement,
licence fees received by the distributor from the end users after
the date of termination were not held in trust for the software
company, but were received by the distributor in its own right,
subject to an ongoing implied obligation on the distributor to make
payments to the software company.
British Horseracing Board v William
Hill (2001)
The Court of Appeal has referred this matter to the European Court
of Justice for its interpretation of the directive on the legal
protection of databases.
British Horseracing Board v William
Hill (2001)
The first case to look at database right and to consider the
meaning of some of its expressions. An important case showing
the relevance of the new right for streaming data and the scope of
the protection it provides.
Holman v Sherwood (2001)
An insurance broker claimed that software supplied to it was
defective and had not delivered the expected business benefits. The
Court considered whether the Supplier's exclusion clauses could be
challenged as unfair contract terms and decided that they were
unfair and therefore ineffective.
Horace Holman v Sherwood (2001)
Having already given judgment on liability, this decision of the
Technology & Construction Court looks at the damages suffered
by a Group Company resulting from the failure to install a
computerised system. Third party costs, redundancy costs, wasted
management time and lost revenue opportunities are all
considered.
Easyjet v Tim Dainty (2001)
In this case, “easyRealestate.co.uk” was held to infringe the
Claimants’ rights in “easyJet” and its associated style and
presentation. A case for passing-off was made out and it was
appropriate to order the transfer of the web address to
easyJet.
Sir Elton John v Countess Joulebine
(2001)
A case that shows the perils of hosting a bulletin board type
website where confidential information was posted in breach of
obligations of confidence. The Defendant was found liable for
damages.
Loutchansky v Times Newspapers
(2001)
The Times sought unsuccessfully to challenge the meaning of
“publication” in the context of storing archive materials on the
internet. The traditional rule was upheld: a "publication" takes
place every time material is made available, and there is no
exception for materials kept on the internet.
Marks and Spencer v Craig Cottrel
(2001)
Judgment had been entered previously against the Defendant
preventing it from exploiting domain names, and using information
gathered for fraudulent purposes. The Defendant persisted and the
Court ordered that he be arrested and imprisoned for 12 months for
contempt of Court.
MBNA v Freeman (2001)
MBNA claimed that Mr Freeman was infringing its registered trade
mark by using the domain name mbna.co.uk. The Court
decided to hold a full trial to decide the issue, and ordered that
Mr Freeman must not sell the domain in the meantime.
MH Alshaya v Retek (2001)
Where a software licence agreement contained an arbitration
provision and a separate agreement to maintain that software
contained no such provision, it was right for the Court to
disregard the arbitration provision and to exercise jurisdiction
over disputes arising under both agreements.
Psychometric Services v Merant
International (2001)
A purchaser of IT systems sought to obtain the source code to those
systems when the relationship with its supplier broke down. Without
the source code the claimant would have been unable to continue
with its business and would have gone into liquidation; there were
also contractual terms supporting the assertion that the claimant
was entitled to the source code. The source code was awarded to the
claimant, and the importance of ensuring access to source code
emphasised.
Radio Taxicabs v Owner Drivers Radio
(2001)
In a dispute over the use of the registered domain name
radiotaxis.com it was shown that a domain name need not always be
treated as a trade mark, but may just describe a service and its
use therefore would be non-infringing.
Totalise v Motley Fool (2001)
An applicant for a ‘Norwich Pharmacal’ style order will normally be
required to pay the defendant’s legal costs, since it is for the
applicant to prove to the Court that he or she is entitled to an
Order for disclosure, rather than the defendant to make a
(potentially erroneous) decision as to whether to provide
disclosure.
Anglo v Winther Brown (2000)
A purchaser of a standard software package, as opposed to a bespoke
solution, was held to be under an implied duty to co-operate with
the software supplier so as to achieve as good a fit to the
purchaser’s requirements as possible. The purchaser was also
under an obligation to modify its expectations so as to accept
reasonable solutions to problems that arose.
Antiquesportfolio.com v Rodney Fitch
(2000)
An interesting case that looks at some of the copyright issues
involved in copying photographs for a website and is also one of
the few cases so far in the commercial disputes arena that can
arise in a website development agreement. Importantly, the court
did not regard every photograph as having copyright protection, and
not every picture derived from a photograph would be an
infringement.
Boots v Amdahl (2000)
This case considered whether consideration, a fundamental
prerequisite for a binding agreement, was given for a variation to
an exising contract. This case shows that consideration can
arise in many forms.
Britannia v Prangley (2000)
A case on "cyber-squatting". The Claimant sought summary judgment
of its claim for threatened passing off and infringement of trade
mark. The court did not accept the Defendant’s evidence that he
registered the domain name “britanniabuildingsociety.com” without
knowledge that the name represented a substantial British company.
The court granted an injunction.
DMA Financial Solutions v BaaN
(2000)
The court considered whether certain negotiations between the
parties were subject to contract and whether the parties had
reached sufficient consensus for the formation of a binding
contractual agreement, despite the parties anticipating but not
entering into a written agreement. In this case the Court found
that a binding contract had been concluded.
Efax.Com v Mark Oglesby (2000)
The Claimant sought an interim injunction preventing the Defendant
passing off his services as and for those of the Claimant by use of
the name “efax”. An injunction was not granted: any confusion
caused by the parties both offering the service under similar names
was as a result of the descriptive and generic nature of the word
and not any misrepresentation by the defendant.
Harbinger v GE Information Services
(2000)
The Court of Appeal gave guidance on the meaning of "in
perpetuity": where a contract provides for the continuation of such
an obligation "in perpetuity", the words must be given their
ordinary meaning and thus the obligation continues after the
contract has been terminated, until the other party no longer
requires it.
Pegler v Wang (2000)
Where a negotiated contract features standard exclusion clauses of
a particularly party those clauses could be held to be within the
provisions of the Unfair Contract Terms Act (UCTA) and therefore
unreasonable and unenforceable.
Regina v Graham Waddon (2000)
The court considered the question of “publication” on the internet
in the context of the Obscene Publications Act and held that this
could occur more than once. Publication occurred when images were
uploaded on to the web site by the website contributors and when
the images were subsequently downloaded by users.
Rubicon v United Paints (2000)
The Court of Appeal held that a contract to supply an IT system was
breached by installing a time-lock device in that system, on the
ground of breach of the warranty to give quiet possession.
Symbian v Juha Christen Christensen
(2000)
The Court of Appeal case reviews the operation of “garden leave”
clauses (whereby employees can be put on notice but not required to
work) and the duties of employees in that period, particularly
whether they can be prevented from working for competitors during
the period of garden leave, pursuant to clauses restricting
competition during the currency of the employment contract.
Watford Electronics v Sanderson
(2000)
An important case where the Court of Appeal considered
exclusions and limitations contained in a systems integration
contract in relation to UCTA.
Sony v Tesco (1999)
Sony obtained an injunction preventing Tesco from importing
Playstations from France. Granting the injunction, the judge
applied European case law relating to intra-Community parallel
imports of pharmaceutical products to the IT industry.
Spectrum v MCI Worldcom (1999)
An application for specific performance was granted in
circumstances where a large telecommunications company breaches a
contract with a small reseller, on the basis that since the small
company's business depended upon the contract, it was appropriate
to award specific performance of the contract for 3 weeks in effect
to allow the small company the opportunity to find an alternative
carrier.
Road Tech v Mandata (1996)
A business used the trademarks of a competitor in its website
metadata in order to attract search engine traffic. The Court found
that the defendant had infringed the claimant's rights and ordered
it to pay damages of £15,000.
