High fibre legal action cements liability; EPLA thumbs-down

The IPKat didn't post anything immediately on Cembrit Blunn Ltd and Dansk Eternit Holding AS v Apex Roofing Services and Roy Alexander Leader [2007] EWHC 111 (Ch), a Chancery Division decision of Mr Justice Kitchin on Monday last week because the case looked too long and daunting. Indeed, the BAILII transcript is 266 paragraphs long - a lot for a fictional Kat to get his little head round. In fact, once you cut through the technical stuff about fibre-cement roof-slates, the legal bit's quite manageable.

Left: Fibre-cement roof slates - a clean, safe alternative to dangerous bio-roofing ...

In essence Cembrit and its parent company Dansk made fibre-cement roof slates which Apex, a roofing contractor, installed at two building sites. Following their installation, Apex complained that the slates, once laid, lifted and curled to an unacceptable extent and meant that many roofs needed re-slating. In an attempt to bend Cembrit and Dansk to its will, Apex later copied and circulated a copy of an internal letter from Dansk to Cembrit's managing director that discussed possible settlement of legal action threatened by Apex. Cembrit and Dansk said it wasn't their fault the slates had lifted: Apex hadn't installed them properly and the degree of curl was quite normal. They also said that, by copying and circulating a private letter, Apex's actions constituted copyright infringement and a breach of confidentiality. Apex said the letter showed that the makers of the slates did not honestly believe there was nothing wrong with the slates and maintained that the disclosure of the letter was justified, both to correct apparently false information disseminated by Cembrit and Dansk and to avoid unnecessary and unjustified litigation.

Kitchin J gave judgment on these issues in favour of Cembrit and Dansk (another claim, that what Apex did to the letter constituted the tort of unlawful interference with goods, failed). In the judge's view

* the lifting of the slates was caused by an inherent characteristic of the slates and was not attributable to defective workmanship by Apex. However, Apex failed to establish on the evidence that slates which curled but not lifted were unacceptable, since they were unlikely to deteriorate further.

* The letter, an original work written by an employee of Dansk, was protected by copyright of which Dansk was the proprietor. Apex infringed that copyright by making copies of the letter unless he was covered by any legal defence.

* The defence of fair dealing for the purpose of criticising another work, raised by Apex in the context of the distribution of the letter being in effect a criticism of the content of an earlier letter about the quality of the slates, could not apply. Apex being motivated by its desire to force Cembrit and Dansk to yield to its demands, did not act in a way that was “fair”.

* There was definitely a breach of confidence here: the letter was a private internal communication that was not intended for publication. Apex's disclosure of it had not been justified either in the public interest or with a view to avoiding unnecessary and unjustified litigation since it was being used as a tactic to force Cembrit and Dansk to surrender to their demands.

Right: Hansel and Gretel, about to take a bite out of the Wicked Witch's new fibre-cement roof slates ...

The IPKat would dearly love to know how copyright infringement damages might be assessed in a case such as this. The commercial value of the letter was low; the strategic value of the infringement was high, which suggests an award of additional damages - but if Cembrit and Dansk had made decent quality slates in the first place they'd never have been in this situation. Merpel says, Cembrit Blunn sounds like a great name for a Celtic warrior king, don't you think?

Another of the IPKat's friends, Dr Michelle Jones (Astex Therapeutics) has drawn his attention to a valuable post on IPEG concerning something he missed elsewhere - the thumbs-down given to the European Patent Litigation Agreement by the European Parliament's Legal Service. It appears that the EPLA is in conflict with provisions of Directive 2004/48 (the IP Enforcement Directive) and Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments, plus Article 98 of the EC Treaty itself. The Legal Service reminds EU member states that they can't just go off and make their own agreements to cover areas that fall within the EU's exclusive competence. So it's back to the drawing board ...

Above, left: how long would it take an infinite number of monkeys, chained to an infinite number of computers, to draft the perfect solution to Europe's patent litigation problems?
High fibre legal action cements liability; EPLA thumbs-down High fibre legal action cements liability; EPLA thumbs-down Reviewed by Jeremy on Wednesday, February 14, 2007 Rating: 5


  1. It would appear that the European Parliament's Legal Service has decided to kill the EPLA (another victory for the computer software anti-patent lobby?). The chances for the European Parliament approving an EPLA-like directive are somewhat remote.

    It is not surprising that the IPKAt missed the news, since the legal opinion was not meant to be published - see:


    One question. If the EU has exclsuive jurisdiction for matters concerning the enforcement of IP, in view of Directive 2004/48, does this mean that the new EPC is void, in view of the new Protocol to Article 69 including a reference to equivalents?


  2. The IPKat has now noticed (see this post). It looks like the legal opinion is now well and truly published, regardless of the fact that it is marked confidential.

    Since I believe the Legal Service's opinion to be wholly wrong, I also believe there is no question about whether EPC2000 is void (it isn't). If this were the case, the original EPC would also be in question, which is of course nonsense.

  3. EPC+EPLA = no European Parliament controlling the patent system.

  4. Update on the Cembrit Blunn case:
    The Claimants omitted to plead the grounds on which they claimed additional damages. They also omitted to plead that they had suffered any damage. Woken up perhaps by the IPKat, they sought an inquiry as to both. The Judge allowed them an inquiry as to ordinary damages but decided to let sleeping dogs lie as regards additional damages. The Claimants had failed to comply with the mandatory requirement of the practice direction to state the grounds of additional damages and the Defendants were prejudiced as a result since they would have done some things differently at trial had they known that additional damages were being pursued and the grounds relied upon. So, as Professional Gareth Jones used to say to dopey students who were not up for the socratic method on Monday mornings, "perhaps we shall never know" whether any and if so what additional damages would have been awarded.


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