Jersey Unreported Judgments

[2006]JRC144

royal court

(Samedi Division)

11^th October 2006 

Advocate R.J. Macrae for the Plaintiff.

Advocate D.S. Steenson for the Defendant.

judgment

the deputy bailiff:

1.        This is a representation seeking a finding of contempt of Court by reason of various breaches of an interim injunction.  On 10^th February, 2006, following a contested Inter-partes hearing, the Court varied some ex parte injunctions against the defendant and made an injunction which contained the following provision:

"The defendant is hereby restrained until trial or further order (whether acting by its directors, officers, employees, servants or agents or any of them howsoever) from doing the following acts or any of them directly or indirectly, that is to say:

 a) Using the Internet domain name "play.co.uk" to provide retail shopping facilities, music downloads, or mobile telephone content;"

That is merely an extract from the injunction.

2.        The first breach arose within a few days when the Plaintiff established that there was a link on the "play.co.uk" website to another website, "www.blastmobile.com", from which mobile phone ring tones and other mobile telephone content could be downloaded.  The defendant immediately apologised, through its Advocate, stating that the offending link had been placed on the website through oversight and providing an assurance that the offending link had been removed and would not be reinstated pending determination of the proceedings.

3.        There matters rested until the second breach.  This was discovered on 20^th June, 2006, and lasted until 11^th July when it was rectified following service of the representation.  The same icons as had been used in relation to the first breach were placed on 3 pages of the "play.co.uk" site, and this enabled a link to be established to the "blastmobile.com" website so that mobile phone content could be downloaded. 

4.        The third breach was discovered on 29^th June and continued until 11^th June, following service of the representation.  The plaintiff discovered on that date that all 9 of the icons on the original "play.co.uk" site, and which were referred to in the judgment of 10^th February, were accessible at "play.co.uk/index.html".  This included the 3 icons which had been specifically restrained by the injunction, namely "Play Shopping", "Play Music" and "Play Mobile".  This additional address was said to be easily accessible because it appeared as result number 10 if one typed in simply "play.co.uk" on a search engine. 

5.        There was said to be a fourth category of technical breach but no point was taken on this.

6.        The plaintiff relied essentially on the second and third breaches for the alleged contempt of court, having decided earlier to take no action in respect of the first breach.

7.        The matter originally came before the Court on 7^th August.  The defendant admitted the breaches and said that they had occurred by oversight.  Mr Simon Brock, as a director of Wide Area Communications which manages the "play.co.uk" website on behalf of the defendant, said in his affidavit that when the website was reactivated following the Court's decision in February the links in question were accidentally left in place. 

8.        Although the first breach was rapidly addressed upon the matter being drawn to his attention, the links involved in the second breach were left in by mistake.  He went on to say that that had been rectified by 7^th August.

9.        In response to the Affidavit from Mr Brock, the plaintiff questioned that version of events.  It pointed out that the icons and links which gave rise to the second breach were not in fact available on the "Play.co.uk" site between 20^th February (that is after the first breach had been drawn to their attention) and 2^nd June.  There must, therefore, have been some action to reinstate them to the site at some time between 2^nd and 20^th June.  It was not, they said, a simple question of oversight by leaving the links in place, as suggested by Mr Brock.  Someone had taken positive action to reinstate the links.

10.      Faced with that evidence, and therefore with difficulty in accepting the version of events given by the defendant, the Court adjourned the hearing and ordered that various individuals should swear further affidavits on behalf of the defendant explaining exactly what had happened and making themselves available for cross examination.

11.      It is in those circumstances that the matter comes back before us this afternoon.  The further affidavits have been filed.  The defendant admits that a materially incorrect explanation, to use Mr Robson's words, of how the second breach had come to be committed had been given in the affidavits filed on 7^th August.  The defendant accepts that changes to the website had been carried out and that these had resulted in the offending links being reinstated on the 6^th June.  However, the evidence does make it clear that all of this was unintentional and accidental and that there was no deliberate intention to breach the injunction.  That has been accepted by the plaintiff and is accepted by the Court.  Furthermore the defendant has apologised fully for all of the breaches and has now taken steps to ensure that they will not be repeated, as set out in the affidavits.

12.      So in the circumstances, the defendant having admitted the breaches, we do find that there has been a contempt of court in relation to the second and third breaches, but in view of the admissions, the fulsome apologies and the fact that we are satisfied it was not a deliberate flouting of the court order, we have decided not to impose any financial penalty by way of fine.

13.      However that leaves the question of costs.  In my judgment this is clearly a case for indemnity costs.  I accept that some special or unusual feature is required to order indemnity costs, but I consider such features exist here. 

14.      First, these are proceedings for contempt of court.  Where a party seeks to establish a right, costs are usually ordered on the standard basis.  But where a plaintiff has obtained relief from the Court, but a defendant has then breached that order so that the plaintiff is put to further expense in protecting his position despite having already obtained the Court's protection, I do not see why a plaintiff should be left out of pocket in seeking to obtain enforcement of the very protection which the Court has already decided he should have. 

15.      The Court has, in my experience, frequently ordered indemnity costs where a plaintiff has been put to expense in establishing a contempt of court by a defendant by reason of breach of an injunction.  Mr Steenson referred, in his skeleton, to the case of Channel Islands and International Law Trust v Scarborough, 1989 JLR 308, and sought to suggest from that case that it was only because the defendant there had not purged his contempt by way of apology and had aggravated the contempt that indemnity costs were ordered.  I do not read the case in that way at all.  What the Court said was that it was imposing a fine because of those matters.  In my judgment the indemnity costs followed because of the contempt.

16.      It follows that I would have ordered indemnity costs even on 7^th August, because I consider that it would be unjust to force the plaintiff to bear costs which have been incurred solely as a result of a defendant breaching a court order and I consider that to be a special and unusual feature.

17.      Secondly there is an additional factor here.  The defendant, on its own admission, gave a materially inaccurate explanation of how the breaches had occurred which meant that the matter could not be resolved on 7^th August but had to be adjourned for further work to be done.  The plaintiff has therefore incurred additional expense since 7^th August.  I see absolutely no reason why the plaintiff should have to bear any proportion of the costs incurred as a result of the defendant's failure to deal properly with the matter in the first place.

18.      Taken together, I have no hesitation in concluding that this is a case for indemnity costs.

Authorities

Channel Islands and International Law Trust Company Limited v Scarborough, 1989 JLR 308.