Courts n Stuff

[Donald Ramsbottom]

Now I know you are all going to say why is he posting cases again, but I
feel that this case does give some insight as to how the courts would deal
with some of the problems discussed on this list. In this case the "Anton
Pillar " order (a civil search warrant) was issued in an intellectual
property dispute between the parties. The order was served on a saturday
morning by the solicitor appointed for the purpose under the terms of the
order of the court. This was relevant as generally solicitors are not in
their offices on a saturday (or rather are but do not answer the phone). So
no help and assistance was available to the defendants.

Although it all came out right in the end, the first defendant had to go to
the High court  (in Chancery, not a cheap exercise or speedy one for that
matter), and the Court had to do some serious "distinguishing" to prevent
his commital to prison.

What is the point, well in this fairly obvious case, the first defendant
nearly went to prison for an "Honest mistake" in a civil action. Can you
imagine how a court would look at it under a proposed S:10 order in a more
serious matter or S:13 order, it does not bear thinking about, your word
against that of the LEA!

Incidently it also goes to show that in civil dispute cases orders can be
made which I would submit could amount to a S:10 order, and this can have
serious commercial/finamcial implications in disputes between competitors if
under the terms of an order access is granted to ALL protected information.

I suspect you will all be asleep by the time you reach the end so happy
Zzzedding.


Case Name:
ADAM PHONES LTD (Claimant) v (1) GIDEON GOLDSCHMIDT (2) OREN GOLDSCHMIDT (3) 
RAREWELL LTD (4) DIGITAL HOUSE INTERNATIONAL LTD (5) PARK LANE TELECOM LTD 
(Defendants) (1999) 

Court:
Ch.D (Jacob J) 9/7/99 

Subject:
CIVIL PROCEDURE - INTELLECTUAL PROPERTY - INFORMATION TECHNOLOGY 

Descriptors:
DELIVERY UP : BREACH OF COURT ORDER : CONTEMPT OF COURT : MOTION FOR COMMITTAL 
TO PRISON : "DOORSTEP PILLER" ORDERS : TECHNICAL BREACH : HONEST MISTAKE : 
APPROPRIATE ORDER ON MOTION : COSTS : COMPUTER PROGRAMS DELETED 

Summary:
The appropriate order on a motion to commit in respect of what was clearly 
only a "technical" breach of an earlier order was to dismiss the motion with 
the claimant to pay the defendant's costs. 

Text:
Claimant's application for the committal to prison of the first defendant
('D1') 
on the grounds of his alleged breach of an ex parte order for delivery up, 
in a copyright action, of certain allegedly offending computer programs. The 
claimant submitted that a conscious failure to comply, albeit attributable 
to an honest mistake, constituted a contempt which warranted an application 
for committal. The programs were stored on the hard discs of computers
belonging 
to D1 and his son, D2, who was also subject to the order for delivery up. In 
the context of the application and the terms of the order, it was accepted 
that D1 had correctly understood that he was required to copy the programs 
onto floppy disc for delivery to the claimant, and that he was then to delete 
the programs from his hard disc. The order was served first on D1 at his home 
in London, who was not willing to comply until he had read the papers and
obtained 
his own legal advice. He set about complying with the order (by making the 
required copies) whilst the serving solicitor went to serve D2, who was in 
Cambridge. D2 complied with the order. On learning of D2's compliance, and 
in the belief that the programs on the hard discs of both computers were
identical, 
D1 stopped the copying process and deleted the remaining programs on his hard 
disc. He informed the serving solicitor that he had done so and, on the
latter's 
return to London, D1 handed to him two floppy discs which contained all the 
information which he had copied up to the point of abandoning the copying
process. 
No adverse comment was made. It subsequently transpired that D1's version of 
a particular program ('the earlier version') was slightly different from a 
later version on D2's computer, but with the passage of time the earlier
version 
could not be retrieved. The claimant contended that provided that D1 intended 
to do what he did, that was sufficient to establish contempt. 

HELD: (1) By not making a copy of the earlier version but merely deleting it 
D1 was in error. However, that error was blameless, and probably would not 
have happened at all if there had been a supervising solicitor, or if the order 
had not been served on a Saturday. Accordingly, it could not be said that D1 
was deliberately flouting the authority of the court. (2) There was
irreconcilable 
authority as to whether it was necessary to establish a direct intention to 
disobey a court order: a line of first instance authorities held that it was 
not (see, inter alia, Spectravest v Aperknit (1988) FSR 161), but in Irtelli
v Squatriti & Ors (1992) 3 WLR 218 the Court of Appeal held that it was
necessary to show contumaciousness. 
(3) Free from authority, the judge would have preferred to follow Irtelli since 
it was an abuse of language to say that a person who had honestly tried to 
obey a court order, but made an honest mistake, was in contempt. However, the 
Spectravest line of cases was not cited to the Court of Appeal in Irtelli, 
described by the leading textbook as "doubtful", and therefore the first
instance 
authorities should be followed. There had been a technical breach of the order, 
but the mental element of contempt should be reconsidered by a higher court. 
There was no question of a penalty being imposed. There were cases in which 
if a technical breach was proved and the respondent had mens rea, the court 
could still dismiss the application with costs in favour of the respondent. 
(4) In the court's view the motion to commit served no purpose other than as 
an attempt to make D1 pay costs, since there was no evidence to suggest that 
the earlier version was in any way material to the claimant's case. (5)
Accordingly, 
the proper order was to dismiss the motion with the claimant to pay the D1's 
costs. 

Motion dismissed with costs. 

Appearances:
Mark Vanhegan instructed by Fox Williams for the claimant. Richard Arnold
instructed 
by Rakisons for the first to third defendants. The fourth and fifth defendants 
did not appear and were not represented. 

References:
LTL 9/7/99 : ILR 9/7/99 : TLR 17/8/99 
Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists