Without a contract lawyer, 6 x 0 = 0

Back in October of last year, the IPKat expressed his surprise that a software development project that ended up in court could have been allowed to get as far as it did without the parties to it receiving any legal advice relating specifically to the IP issues: failure to bring the lawyers in at the beginning of projects like this almost guarantees to mean that they will be brought in at the end.

Right: slipping away from their legal advisers, the parties were soon in trouble ...

The case in question -- Meridian International Services Ltd v Richardson and others [2008] EWCA Civ 609 -- has now risen as far as the Court of Appeal for England and Wales (Sir Andrew Morritt C, Lords Justices Rix and Rimer) which last Wednesday dismissed what looked like a pretty doomed appeal in a pretty doomed action.

In short, Meridian was a software company for whom Richardson used to work. Richardson held shares in IP Enterprises (the second defendant). There was also a third defendant, Aldersley, a computer programmer who sometimes did some work for Meridian. The problems arose after Meridian started a project to design and develop a piece of software ('StratX') for the UK division of GlaxoSmithKline. In 2005 Meridian engaged Richardson and IP Enterprises to create and develop StratX, but they couldn't begin work on time on account of their prior commitment to other Meridian projects. Then Meridian failed to make payments to them in accordance with the terms of their engagement. Unsurprisingly the relationship between the parties deteriorated and broke down in late December 2005.

In early January 2006 Richardson emailed Meridian's boss and owner Bobeckyj, suggesting ways in which the position might be moved forward. That email was a precursor to a meeting held on 9 January following which Richardson emailed Bobeckyj, recording the situation as agreed by the conclusion of the meeting on 9January. This email recorded that

* Meridian was to be paid a finders' fee in relation to StratX in return for the project being handed over to the defendants;

* Bobeckyj was to contact the defendants if that summary of the January agreement was not accepted.

No such communication was made. Aldersley then began the programming work later that month, as an independent contractor for IP Enterprises. He was the author of the source code and, therefore, the first owner of it. In April 2006 Bobeckyj signed a contract for the StratX project with GlaxoSmithKline, warranting that it held all the necessary intellectual property rights in StratX. Subsequently Aldersley transferred his legal interest in the intellectual property to IP Enterprises.

In these proceedings Meridian alleged that it was the owner of the intellectual property rights in StratX, through either an express or an implied term of the January agreement that the intellectual property rights would be assigned to it. Sitting as a Deputy High Court judge, Robert Ham QC dismissed the claim. Meridian appealed, abandoning its argument relating to an express term but still maintaining that, on the facts, there was an implied term. The basis for the implication was that it was necessary for the January agreement's business efficacy, and/or so obvious as to go without saying.

The Court of Appeal dismissed the appeal, there being nothing wrong in the judge's appraisal of the law or of its application to the facts. The IPKat notes that Meridian brought no fewer than six bases upon which, it alleged, an implied term that it was entitled to an assignment was founded. Giving judgment for the court, the Chancellor said this:

"Nor can the judge be criticised for considering the six points on which counsel for [Meridian] relied individually for such value and force as they might individually possess if only as a preliminary to considering their cumulative effect. But if their individual value and force is nothing their cumulative effect is also nothing".

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