Full case report

Cembrit Blunn Ltd & Anr v Apex Roofing Services LLP & Anr

Reference [2007] EWHC 111 (Ch)
Court Chancery Division

Judge Kitchin J

Date of Judgment 5 Feb 2007


Summary

Copyright – Subsistence – Infringement – Breach of confidence – Defences – Contract – Satisfactory quality – Sale of Goods Act 1979, s.14(2)


Facts

ARS installed fibre-cement roof slates made by CB at two building sites. ARS complained that the slates were not of satisfactory quality. CB denied that it was their fault that the slates had lifted, claiming that ARS hadn’t installed them properly and that the degree of curl was quite normal. ARS obtained, copied and circulated a copy of an internal letter from the executive vice president of CB’s parent company, D, to two directors of CB, which discussed possible settlement of the legal action threatened by ARS. CB and D claimed that this copying and circulating of the letter constituted copyright infringement and a breach of confidence. They also sought an order requiring disclosure of the identity of ARS’s source. ARS said that the disclosure of the letter was justified as it showed that CB knew that the slates were defective, and that it was necessary to avoid unnecessary litigation. It counter-claimed against CB that the slates were not of satisfactory quality.


Issue

(1) Whether the slates were of satisfactory quality within the meaning of s.14(2) of the Sale of Goods Act 1979;

(2) Whether disclosure of the letter infringed the D’s copyright;

(3) Whether disclosure of the letter was a breach of confidence;

(4) Whether D and CB were entitled to disclosure of the identity of ARS’s source.


Held

(1) Some of the slates were not of satisfactory quality;

(2) The letter was an original literary work written by employees of D. Copyright subsisted in it and belonged to D. ARS’s copying of the letter amounted to infringement. ARS did not copy the letter to criticise it, so there was no fair dealing defence.

(3) The information in the letter was confidential: it was clearly intended to remain in D’s group of companies and went further than what had been published before. It was communicated in circumstances importing an obligation of confidence: ARS’s source knew it was a confidential letter. Disclosure of the letter was not justified: the letter was prejudicial and taken out of context. It led to litigation, rather than helping to avoid it.

(4) D and CB were entitled to a Norwich Pharmacal order for disclosure of the source’s identity. He was a wrongdoer, and D and CB had made efforts to identify him and explained the purpose of seeking his identity.


Comment

A reminder that even a literary work as simple as a short letter will attract copyright protection, and its disclosure will, if it was clearly intended to remain internal, also be a breach of confidence.


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Instructing Solicitors

Bond Pearce LLP for the Claimants; Fisher Jones Greenwood LLP for the Defendants