Reference: Times Law Reports
Court: High Court Chancery Division
Judge: Lawrence Collins J
Date of judgment: 3 Jul 2000
Summary: Injunctions - consent order - breach - legal advice - damages
Instructing Solicitors: Sills & Betteridge
The Claimants ran open learning courses which led to the qualification of Microsoft Certified Systems Engineer. They commenced proceedings in November 1999 against the defendants for infringement of copyright and obtained various orders preventing the defendants from, amongst other things, selling open learning courses of the type offered by the claimants. In April 2000, the judge had found that the defendants had been in continuous breach of a consent order made by Mr Justice Lightman by selling the MCSE qualification and that the third defendant had been in breach of the injunction on the use of the Claimant’s marketing material. The defendants claimed by way of mitigation that they had acted upon legal advice.
Where there has been a negotiated consent order, are damages available if the order has been breached?
No weight should be attached to the factor that the defendants said they had acted on legal advice, since the advice was nowhere recorded, it was based on instructions which had no factual basis and it was not a case where the defendants had a genuine belief in the correctness of the legal advice. Although this was not an appropriate case for a committal or a fine, not should a further injunction be granted, it was, however, an appropriate case for an inquiry into damages for breach of the injunction. It had already been decided that damages were available where the breach alleged was both the breach of an undertaking to the court and a breach of contract with the other party: see Midland Marts Ltd v Hobday  1 WLR 1143. A defendant could not rely on the fact that he took legal advice in mitigation for breach of an injunction where that advice was not recorded and where the defendant did not have a genuine belief that it was correct and accurate.
It would be contrary to common sense if the claimants would be entitled to damages if the agreement had been embodied in an undertaking or in a settlement but not if it had been embodied in an order of the court.