Case reports

We are building a library of case law on OUT-LAW that provides analysis of important court rulings with relevance to other parts of the site. Right now there are some computer law cases and some insurance law cases. If you want to see the former only, see Pinsent Masons Computer Law Reports.

An alphabetical list of all cases follows. The year shown is the year when the case was first reported.

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.

Akai Holdings v Ernst & Young (2008)                                                                                        Hong Kong courts have no jurisdiction to order security for costs against an impecunious foreign corporate plaintiff, even if that company is ordinarily resident – i.e. managed and controlled – in Hong Kong. S.357 of the Companies Ordinance is not applicable to foreign corporate plaintiffs.

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.

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.

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.

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".

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.

BMS v AB Agri (2010)
This High Court decision considers the meaning of "perpetual" in the context of a software licence and provides a useful reminder that parties to such a licence should take care to be very clear as to what is meant by "perpetual" as it will not automatically be taken to mean that the licence will last forever.

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.

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.

BSkyB v EDS (2010)
This high profile judgment of the Technology and Construction Court related to claims made by BSkyB for fraudulent misrepresentation and is regarded as having important potential ramifications for IT suppliers' marketing and sales processes used to win large IT projects.

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.

Clearsprings v BusinessLinx (2005)
A look at implied terms in a software licence in the context of rights to use and resell the software.

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.

Dalkia Utilities v Celtech
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.

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.

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.

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.

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.

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.

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.

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.

Hummingbird Music v Dino Acconci and Giulio Acconci (2010)                                                            There is no restraint of trade when a contract ties the parties during the life of the contract and the negative ties are only those which are incidental. To establish a claim of restraint of trade, pleadings must set out very particular reasons.

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.

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.

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.

Kosmar Villa Holidays v Trustees of Syndicate 1234 (2008)
The insured had breached a condition precedent in its public liability policy that required it to notify insurers immediately after any occurrence of injury or damage. Insurers failed to reserve their position in correspondence with the insured but the Court of Appeal, overturning the High Court, found they had not waived their right to rely on the breach to deny the claim.

Leung v Home Kitchen (2008)                                                                                                    Under S.41D of the Employment Ordinance, on cessation of employment an employer is required to pay to the employee compensation in lieu of accrued annual leave.

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.

London Underground v Citylink (2007)
The TCC endorsed the Scottish case of Doyle v Laing in respect of global claims. Where a global claim is presented and it can be shown that some of the events that caused loss were not the responsibility of the employer, this does not necessarily mean that the entire claim should fail; it may be possible to apportion the loss between events that were the responsibility of the employer and those that were not.

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.

Murad v Commissioner of Inland Revenue (2009)                                                                             Where an employment contract provides for payments to be made to an employee upon termination, the payments will be taxable. Payments made in consideration for the abandonment of contractual rights under the employment contract are not taxable. But it is not enough to say in the contract that the payments are as a result of loss of office: the true nature of the payments is the determining factor, not the label attached to them by the contract.

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.

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.

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.

Quest v Maxfield (2007)
This case considers the effectiveness of a non-reliance clause in a financing agreement and comes to the conclusion that where the party seeking to rely on the clause could not have believed that the party making the declaration had not in fact relied on pre-contract representations, then the clause will not operate to raise an estoppel. The important principles discussed are equally applicable to non-reliance provisions in IT contracts.

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.

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.

Reed v Reed (2002)
Use of a competitor’s name in invisible metatags may amount to passing off or trade mark infringement.

Regus v Epcot (2008)
This Court of Appeal decision provides a useful reminder of the need for suppliers to carefully consider the scope of exclusion clauses contained in standard form contracts so as to minimise the potential for a challenge to the reasonableness of the clause under UCTA.

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.

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.

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 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.

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.

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.

Standard Life v Oak (2008)
A professional indemnity policy that said the excess applied to "each and every claim and/or claimant" meant the insured's £25 million deductible applied to each of more than 97,000 individuals claiming compensation for mortgage endowment mis-selling.

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.

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.

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.

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.

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.

Wilson v Hurstanger (2007)
A broker negotiating a loan was paid a fee by his consumer clients and a commission from the lender. Although the clients were told about the commission, the broker had breached his fiduciary duty because he did not disclose the actual amount. The lender was held liable to the borrowers as accessory to the broker's breach.