CONSTRUCTION OF CONTRACT STOPS SUMMARY JUDGMENT

Here's another case that turns on the availability of summary judgment: General Alarms Ltd v Time Rapid Prototyping Solution Ltd, decided yesterday in the Chancery Division by Mr Justice Etherton (not yet available on BAILII but once again scooped by Lawtel).

General Alarms, a business that designed and supplied military equipment, tendered for the supply of an optical sight to a Swedish company and contracted with Time to produce certain drawings and models for them. After Time delivered the drawings and models, a dispute arose over payment. Time argued that the contract incorporated its standard conditions of sale, which provided that as a result of General Alarms' failure to pay the sums due, Time retained title of the goods supplied. Accordingly, Time argued, General Alarms were not entitled to the copyright or design right in the design, drawings or models. General Alarms sued for a declaration that they owned the IP rights under the Copyright, Designs and Patents Act 1988 s.215(2), or that there was an implied term that Time would assign to them any copyright and design right they might have.

Time to haggle over contract terms should be when they're negotiated, not when they're being litigated

Etherton J refused General Alarms' application, holding that it was impossible, on an application for summary judgment, to dismiss Time's argument that its standard terms and conditions governed the facts and to say that this defence had no prospect of success.

The IPKat observes that not all judges take the same view of contract-based defences where summary judgment is sought. A case to contrast with this one is Experience Hendrix v Purple Haze (Chancery Division, 24 February 2005), where Mr Justice Hart gave summary judgment in the face of the defendant's admittedly obscure (but arguably arguable) contract-based submissions. Merpel wonders, without having seen the contract first hand, how a retention of title clause could in principle extend to intellectual property.

The thief of time here , here and here