Gglobal Village Communications Ltd v. Publishing Resources Ltd and Another

Case No.HCA 6152/1983

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA006152/1983

IN THE HIGH COURT OF JUSTICE

No. 6152 OF 1983

BETWEEN:-

	GLOBAL VILLAGE COMMUNICATIONS LIMITED	Plaintiff
	- and -
	PUBLISHING RESOURCES LIMITED	lst Defendant
	ELAINE PARNELL	2nd Defendant
	________________

Coram: The Honourable Mr. Justice Jones in Chambers

Date: 18th November 1983

Mr. Westbrook instructed by Fairbairn & Kwok for Plaintiff

Mr. Bunting instructed by Robert W. H. Wang & Co. for Defendants.

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JUDGMENT

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1. This is an appeal by the defendants against a decision of Master Emerson under Order 14 on the 26th September 1983 when he made an order for specific performance, and entered interlocutory judgment with damages to be assessed in favour of the plaintiff and granted leave to amend the statement of claim. No steps have been taken to amend the statement of claim.

2. By paragraph 2 of the statement of claim the plaintiff alleges that:-

"........ through its agent, Messrs. Fairbairn & Kwok entered into an agreement with the 1st and 2nd Defendants through their agent, Messrs. Wilkinson & Grist on the 20th April 1983 whereby the Plaintiff agreed not to take any legal proceedings against the 1st and 2nd Defendants on the lst and 2nd Defendants undertaking to comply with various conditions ...."

3. Mr Catley the plaintiff's solicitor in his affidavit sworn on the 16th June 1983 deposed that: -

"On the 28th January 1983, I received instructions from Mr. Barry Kirkham, the Managing Director of the Plaintiff relating to the plagiarizing by the Defendants herein of an article the copyright in which is owned by the Plaintiff. He instructed me that he believed large sections of this article had been reproduced in the November 1982 issue of insight Magazine written by Elaine Parnell (the 2nd Defendant) and published by Publishing Resources Limited (the lst Defendant)"

Correspondence then ensued between the plaintiff's solicitor and the defendant's solicitor. Ultimately a telephone conversation took place on the 20th April 1983 between Mr. Catley and Mr. Woods the defendant's solicitor when it is alleged that an oral settlement was reached. Mr. Catley exhibited an attendance note to his affidavit in which he sets out details of the terms reached. Subsequently, Mr. Woods wrote to the plaintiff's solicitor setting out his understanding of the terms of the agreement but Mr. Catley disputes this record. A redrafted letter of apology from the defendant's solicitor dated the 2nd May 1983 was rejected as Mr. Catley contended that it did not comply with the terms agreed. Mr. Catley referred to a telephone conversation with Mr. Woods on the 5th May 1983 when he was told that Mr. Woods had attempted to persuade the defendants to comply with the terms of the agreement, but that they had refused to do so. Whilst Mr. Westbrook emphasised that Mr. Woods had not denied the contents of the conversation in his affidavit equally he has made no admission. Mr. Bunting who appeared for the defendants submitted four grounds upon which his argument was based:-

	(a)	The statement of claim contains no reference at all to the term as to restriction of circulation of the letter of apology notwithstanding that it is common ground on the evidence that there was such a term. The defendants submit that it is not possible for the plaintiff to obtain specific performance of part of the agreement particularly when the omitted part was put for the benefit of the defendants. Therefore it is enough for specific performance to be impossible at trial let alone under Order 14. Plaintiff could improve his position now by amending the statement of claim, but it is immaterial here,
	(b)	There is a triable issue as to the term with regard to restriction of circulation of letter. The plaintiff says widespread, the defendants say not more than 12.
	(c)	Even if it is possible to overcome lack of pleading with regard to restriction of circulation, the agreement is not of a kind that the court will order specific performance as the court cannot supervise performance of a term so vague as 'not widespread disclosure'. The court is not in a position to determine what was in the minds of the parties when there is reference to 'widespread disclosure'.
	(d)	There is a triable issue as to whether it was agreed that the letter should be an apology for unauthorised material or for infringement of copyright.

4. Objection was taken by Mr. Westbrook to the late filing of an affidavit by Mr. Woods on the 16th November 1983. He also criticised Mr. Woods' failure to exhibit his attendance note to his affidavit of the 14th September 1983. I did not consider that the plaintiff would be embarrassed or prejudiced by the late filing with the result that I admitted the affidavit. Master Emerson ruled that Mr. Woods was in breach of Order 41 rule 11 of the Rules of the Supreme Court by not exhibiting the attendance note. However, the Master clearly misinterpreted the rule which relates to the requirement to exhibit documents and not to annex them, There was no obligation upon Mr. Woods to exhibit the document to his affidavit. Mr. Westbrook concedes that there is a triable issue in this action as to what was precisely agreed but that nevertheless upon the evidence before the court the Master's order should be confirmed.

5. In his decision the Master made findings of fact upon the affidavits of Mr. Catley and Mr. woods and came to the conclusion that a binding agreement had been reached. He then set out the terms of the agreement. However, it is trite law that on an Order 14 summons the case cannot be tried on affidavits. What has to be decided is whether the defendants have shown that there is a triable issue. Leave to defend will be granted unless it is clear that there is no real substantial question to be determined.

6. Upon the evidence in this case there is a real dispute as to whether the apology should relate to the use of unauthorised material or for the infringement of copyright. Further the term with regard to the restriction of circulation is too vague to support an order for specific performance. In my opinion the defendants have raised substantial issues of fact which ought to be tried.

7. The appeal is therefore allowed and the order of the Master will be set aside. There will be unconditional leave to defend. Directions given. Costs of the appeal and of the hearing before the Master to the defendants, costs arising before the hearing before the Master to be in the cause.

	( B.L. Jones )
	Judge of the High Court

Representation:

Mr. Westbrook instructed by Fairbairn & Kwok for Plaintiff

Mr. Bunting instructed by Robert W. H. Wang & Co. for Defendants.