Judgment call: 29 April 2013

Personal injury

R (on the application of Jones) v (1) First-tier Tribunal (Social Entitlement Chamber); (2) Criminal Injuries Compensation Authority [2013] UKSC 19. Lord Hope JSC (deputy president) ; Lord Walker JSC; Lady Hale JSC; Lord Sumption JSC; Lord Carnwath JSC. 17 April 2013

The First-tier Tribunal had been entitled to uphold a decision by the Criminal Injuries Compensation Authority not to award compensation to a driver who was severely injured when a suicidal person ran onto a dual carriageway.

The Supreme Court confirmed that an offence committed under the Offences against the Person Act 1861 s.20 is always a “crime of violence” for the purposes of the Criminal Injuries Compensation Scheme 2001. It held that the Court of Appeal should not have remitted the matter for reconsideration on the facts by the First-Tier Tribunal.

Appeal allowed

For the appellants

Blackstone Chambers’ James Eadie QC; Old Square Chambers’ Ben Collins, instructed directly by the Treasury Solicitor

For the respondent

Devereux Chambers’ Robert Glancy QC; Devereux Chambers’ Georgina Hirsch; Pattinson Brewer partner Linda Levison

Employment

George v Ministry of Justice [2013] EWCA Civ 324. Maurice Kay LJ (VP, CA Civ); Rimer LJ; Jackson LJ. 17 April 2013

A term in a collective agreement providing that prison officers who worked more than their normal 39-hour week would be given time off in lieu “as soon as operationally possible and within a maximum period of five weeks” had not been incorporated into the officers’ contracts of employment.

Even if it had been impliedly incorporated, it was not intended to be anything more than guidance and was not “apt” for incorporation.

Appeal dismissed

For the appellant George

Old Square Chambers’ John Hendy QC; Old Square Chambers’ Deshpal Panesar; Thompsons Solicitors’ Craig Peel

For the respondent MoJ

11KBW’s John Cavanagh QC; 3 Temple Gardens’ Alexander Williams, instructed directly by the Treasury Solicitor’s Department

Insolvency

HSBC Bank v Tambrook Jersey Ltd [2013] EWHC 866 (Ch). Mann J. 12 April 2013

For the purposes of the Insolvency Act 1986 s.426(4), a court with jurisdiction in relation to insolvency law in any part of the UK could not “assist” a court having the corresponding jurisdiction in another part of the UK or any relevant country or territory unless the latter court was doing something, or intending to do something, under its own insolvency jurisdiction.

In the instant case, the English court had no power to appoint administrators in respect of a Jersey-registered company at the request of the Royal Court of Jersey, as no insolvency proceedings were pending or planned in Jersey.

Application refused

For the applicant HSBC Bank

South Square’s Stephen Robins; CMS Cameron McKenna partner Rita Lowe

Defamation

Smith v Dha [2013] EWHC 838 (QB). Nicola Davies J. 12 April 2013

The court could not give judgment on an application made in defamation proceedings where the claimant had died between argument being heard on the application and judgment being given.

The death of a party to a defamation claim caused the claim to abate, and CPR r.40.7(1) did not allow judgment to take effect from a day earlier than the day on which it was given.

Judgment accordingly

For the claimant Smith

5RB’s David Hirst; Irwin Mitchell partner Mark Elder

For the defendant Dha

5RB’s Richard Munden; Leo Dawkin, formerly of PSB Law

Legal advice and funding

Germany v Flatman [2013] EWCA Civ 278. Mummery LJ; Richards, LJ; Leveson LJ. 10 April 2013

The funding of disbursements in a personal injury action by a claimant’s solicitor did not render the solicitor “a real party” to the action, nor did it justify a conclusion that the solicitor had stepped outside his normal role.

A judge had therefore been wrong to order for full disclosure of a claimant’s funding arrangements to enable the defendant to seek a costs order against the solicitor.

Appeals dismissed

For the appellants in both cases

Hailsham Chambers’ James Carpenter, instructed directly by Godfrey Morgan Solicitors Ltd trading as GMS Law

For the respondents Germany

Crown Office Chambers’ Simon J Brown; Crown Office Chambers’ Richard Sage; Plexus Law partner Alan Rennie

For the intervenors The Law Society

Landmark Chambers’ David Holland QC, instructed directly by the Law Society

Food and health

Harford v Nursing and Midwifery Council [2013] EWHC 696 (Admin). Wyn Williams J. 10 April 2013

A panel of the conduct and competence committee of the Nursing and Midwifery Council was entitled to conclude that the refusal of a nurse to cooperate in an investigation of a colleague amounted to misconduct and that her fitness to practise was impaired.

The Nursing and Midwifery Council Code of Practice 2008 para.56 did not have to be interpreted narrowly as applying only where a registrant failed to cooperate with investigations only insofar as they related to the registrant.

Appeal dismissed

For the appellant Harford

Guildhall Chambers’ Gabriel Beeby; Royal College of Nursing senior legal officer Jonathan Green

For the respondent Nursing and Midwifery Council

Neil Moloney of the Nursing and Midwifery Council

Featured case: IP

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Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd [2013] UKSC 18. Lord Neuberger JSC; Lord Kerr JSC; Lord Clarke JSC; Lord Sumption JSC; Lord Carnwath JSC. 17 April 2013

The Supreme Court proposed to refer to the European Court of Justice the issue of whether copies of protected material temporarily retained in the internet cache or on the end-user’s screen fell within the exception provided for by Directive 2001/29 art.5(1).

Judgment accordingly

The appellant appealed against a decision that a web end-user licence was required to lawfully use and receive content in the form of clippings and headlines sourced by media-monitoring organisations which trawled a multitude of websites using search terms selected by the end-user.

The appellant was a professional association of public-relations professionals who, among other things, monitored news coverage on behalf of clients.

Services were provided to its members by a group of companies called the Newspaper Licensing Agency (NLA), which used automated software programmes to create an index of words appearing on newspaper websites.

The respondent’s customers provided search terms of interest to them and the agency produced a monitoring report listing the results of a search of the index for those keywords.

For each search hit the monitoring report would present the opening words of the article, the keyword together with several words on either side of it and a hyperlink in the form of a reproduction of the headline, which enabled the user to access the article on the relevant source website.

The agency sent the monitoring report to the customer by email or the customer would access it on its website. The issue was whether the NLA’s customers would need a licence to receive its service if the monitoring report were made available only on its website.

That issue in turn involved the question of protected works which were temporarily retained on the end-user’s screen or in the internet cache as an incidental consequence of the end-user’s use of a computer to view the relevant material. The question was whether those temporary copies were infringing copies unless licensed by the rights-owner.

Judgment accordingly

The answer to that question was no. A consideration of the relevant decisions of the European Court of Justice (ECJ) showed that the conditions of Directive 2001/29 art.5(1) were satisfied. Art.5(1) extended in principle to temporary copies made for the purpose of browsing by an unlicensed end-user.

However, the issue had a transnational dimension and the application of copyright law to internet use had important implications for many millions of people across the EU making use of what had become a basic technical facility.

Those considerations made it desirable that any decision on the point should be referred to the ECJ for a preliminary ruling before an order was made on the appeal, so that the critical point could be resolved in a manner which would apply uniformly across the EU.

The ECJ would therefore be asked to rule on whether copies of protected material temporarily retained in the internet cache or on the end-user’s screen fell within the exception provided for by art.5(1). Counsel were invited to comment on the proposed issue to be referred and to prepare, and, if possible, to agree a draft reference for consideration.

Commentary: Michael Hart

Hart

Lord Sumption made it clear in the Supreme Court’s unanimous judgment that, if end-users who read or view webpages were not protected by Article 5(1), temporary copies exception, this would have the “unacceptable result” of making “infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes”.

People who read material made available on the internet should not have to obtain any express or implied permission from rightholders simply to read or view that material.

To do so would turn copyright from a right to prevent the making and exploitation of copies to something more akin to a use right, which would be a dramatic extension of existing law.

If right holders have control over temporary copies, this could create impediments to the use and development of new technology. The Copyright Directive seeks to avoid this.

Temporary copies are created solely for the technical purposes of allowing computers or networks to enable uses, which are lawful in the analogue world.

The claim that the Supreme Court’s ruling could create a charter for online piracy because it allows end-users to read pirated content, is without merit.

Aside from the fact that reading a literary work has never infringed copyright, it is still unlawful to download or print out protected material. There are strong remedies against pirates, plus Article 8(3) of the Copyright Directive provides for injunctive relief against intermediaries, which relief is now commonly obtained.

If the European legislature had wanted to make reading or viewing a work unlawful, or to provide for injunctive relief against end-users who read such works, it could have done so. However, it chose not to do so in order to safeguard a “fair balance of rights and interests” between rightholders and users (Recital (31)).

The Supreme Court has ruled in favour of that fair balance and we will see if the Court of Justice does the same.

However, the Supreme Court based its decision on two Court of Justice decisions (Premier League) and Infopaq II, which were decided after the Court of Appeal’s 2011 decision in favour of the NLA.

As the Premier League decision found that Article 5(1) permits end-users to view a streamed television broadcast without right holder permission, it would be bizarre and inconsistent if reading or viewing a webpage was not permitted by Article 5(1).

Michael Hart is Baker & McKenzie’s head of London IP practice. He represented the appellants at the Supreme Court.