Point Solutions Limited v Focus Business Solutions Limited (Chadwick LJ, Hallett LJ, Lindsay J;  EWCA Civ 14; 23/01/07)
The Court of Appeal dismissed Point’s appeal against the High Court’s decision ( EWHC 3096 (Ch)) to refuse to grant Point declaration of non-infringement of copyright in Focus’s software.
Point’s allegation that Kirkham J’s approach to the question of non-infringement had been confused and riddled with errors was misconceived. Kirkham J was entitled to conclude that that she was not satisfied, on the balance of probabilities, that Point had demonstrated independent design of its software. Given this, Point’s other two grounds of appeal did not arise, however Chadwick LJ addressed them for completeness.
Chadwick LJ upheld Kirkham J’s finding that Point did not need the declaration of non-infringement, noting in particular that Point had available to it a sensible means of resolving the dispute without recourse to litigation: namely independent and confidential expert scrutiny to determine whether there had been copying. Further, a letter from Focus’s solicitors gave comfort to Point by stating that if expert scrutiny found that copying had not taken place, Focus would accept that there had been no infringement.
However, Chadwick LJ was not confident that Kirkham J would have been right - had she found copying - to refuse a declaration on discretionary grounds because that “would shut Focus out of any future claim”. Instead, Chadwick LJ concluded that once Focus had decided to go to trial without the expert report which Master Bragge had thought necessary, it was in no position to complain if, as a result of a finding at the trial that copying had not taken place, it was unable to bring a claim alleging copying in the future.
Finally, Chadwick LJ commented that the outcome of the proceedings was unsatisfactory, and would have been equally unsatisfactory had the decision gone the other way. He blamed this state of affairs on the way in which the parties had chosen to conduct the proceedings, in particular by choosing to deny the Judge the assistance of an expert’s report.