Catalina Software Ltd v Professional IT (Logistics) Ltd

JUDGE HACON: This is an application as part of a CMC to strike out the Particulars of Claim as disclosing no arguable case pursuant to CPR 3.4(2)(a), “that the statement of case discloses no reasonable grounds for bringing or defending the claim”.

The first point made is that the Particulars of Claim do not or at least do not sufficiently identify the copyright work relied on, and a number of points are made. In particular paragraph 2, although it refers to the claimant’s reliance on its “Freedom” copyright work, nowhere in that paragraph or elsewhere in the Particulars of Claim does the claimant identify the particular type of copyright work on which it relies, in particular which type as set out in section 3(1) of the Copyright, Designs and Patents Act 1988. It is said that this not taking a pedantic point because elsewhere in the Particulars of Claim it is not clear whether the claimant is relying on just a computer program or alternatively a database or both, or possibly a table or compilation as one alternative type of copyright work on which may be claimed.

It seems to me that there is a lot of force in that. If one goes to paragraph 6 of the Particulars of Claim it is said (this is an allegation which leads towards the allegation of infringement):

“As part of the Agreement, the Defendant has (and at all material times had had) access to Freedom (including, for the avoidance of doubt, to matters such as program code, database schemas, data logic, window definitions, report definitions and menu structures for the same).”

I think any reader might suppose that the type of copyright work being claimed extends at least as far as a computer program and a database, if not significantly further than that. Moreover, paragraph 7, which has six subparagraphs, appears to allege infringement by copying the Freedom program “and/or works that are derived therefrom”, which again would suggest that even in relation to a computer program what is being relied on is not merely the program itself but, as part of the copyright work alleged to have been infringed, derivations of the Freedom program.

Mr Hughes today has said in fact his client’s claim is, or at least now will be, limited to a claim in relation to a copyright work taking the form of a computer program only, i.e. that defined in section 3(1)(b) of the 1988 Act. He says that a copy of the source code, which is the copyright work relied on, will be supplied to the defendant and that that source code will contain in its entirety the copyright work relied on in these proceedings. That being so, it seems to me at least this part of the strike-out application ceases to be tenable because at least the claimant has now, rather belatedly, clearly identified the copyright work which is at the centre of this case.

The second part of the defendant’s application to strike out essentially is this: that as pleaded, the Particulars of Claim do not disclose on their face any matter from which an inference of copying can even arguably be drawn, and therefore the pleading should be struck out because no pleadable case on infringement has been disclosed on the face of the Particulars of Claim.

There are two aspects to this. The first turns on the claimant’s reliance on a document annexed to the Particulars of Claim as Annex C. Annex C is said to be a document which is directed to a computer programmer who might work for a customer of the defendant to enable the programmer to allow the customer to use certain software developed by the defendant for use with a booking program. I think I can summarise the point being advanced in this way. It is said first of all that this document shows no software at all on its face. It cannot be relied on to lead to any inference of copying by the defendant because, unlike the usual kind of document which leads to such an inference, it does not set out the claimant’s software on the one side, the defendant’s on the other, and draw any inferences of copying. It is also said that insofar as there are any similarities of notation in this document, those similarities merely refer to common use of field names and table names as between the defendant’s source code and the claimant’s source code and that that does not raise any possible inference of copying.

Mr Hughes submitted that this part of the pleaded case does suggest that the defendant’s software uses similar table names and field names to those used by the claimant in the claimant’s source code and that, if sufficient such names are common to both the claimant’s and defendant’s source code, this would be an infringement of copyright and that this document at least raises an inference that there are sufficient such similarities.

I have to say that it seems to me that, even put at its highest, even if this document (by which I mean confidential Annex C) did raise the suggestion that the defendant has used similar table names and field names, that of itself could never by itself arguably be an infringement of the claimant’s source code, so it seems to me if confidential Annex C were the only point relied on then the Particulars of Claim would be strikeable.

There is a point taken by Mr Hughes. He relies on screenshots which are shown in Annex E to the Particulars of Claim. The allegation here is that these are screenshots which were created by the defendant and they could only have been created using the claimant’s software which is in issue and they were in no sense licenced by the claimant.

It is common ground that the defendant has retained copies or at least one copy of the claimant’s software which is in issue, the Freedom software. It is common ground that the defendant created these screenshots from that software for the purposes of assisting a customer of the defendant. The dispute between the parties, it seems to me, is whether that was done under a licence available directly or indirectly to the defendant or not. That is not a matter I can resolve today, and therefore I come to the conclusion that there is an arguable case of infringement of copyright in the source code of the software. I therefore do not strike out the Particulars of Claim.

That said, it seems to me that the Particulars of Claim need substantial revision to reflect the case that is now being advanced by the claimant. There are two ways that this could be taken forward. One way would be, notwithstanding the fact that there is an arguable case that has been advanced by the claimant, that the Particulars in their present form should be struck out and that the claimant should be required to start again with a pleading which more clearly and more accurately reflects the case that the claimant is running. While I have some sympathy for that approach, it seems to me that that drastic step is not required and that the Particulars could be amended to reflect the case that is being run.

Therefore I dismiss the application to strike out the Particulars of Claim but the directions which we will now turn to will reflect the need for substantial amendments to the Particulars and the consequences that follow from that.