Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 105
	OPINION OF LORD BANNATYNE in the cause DONAL TONER Pursuer; against KEAN CONSTRUCTION (SCOTLAND) LIMITED First Defenders: And CRGP ARCHITECTS AND SURVEYORS AND PARTNERS THEREOF Second Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Mr Lake Q.C.; MacRoberts

First Defenders: Mr Henderson; Lindsays, W.S.

17 July 2009

Background
[1] This action came before me for procedure roll at the instance of the first defenders.

[2] The first defender's counsel sought to argue his first two pleas in law. These pleas in law challenged first the competency of the pursuer's action and secondly the relevancy and specification of the pursuer's action. The second defenders were not represented at the procedure roll.

[3] The pursuer who is an architect seeks damages from the first and second defenders for breach of copyright. The damages were sought against each defender in terms of a separate conclusion. No issue of joint and several liability on the part of the defenders was raised in the pleadings. The first defenders are developers and builders. The second defenders are architects. The pursuer was instructed by the first defenders predecessor in title as an architect in relation to the development of various sites including Glebe Street, East Kilbride. The pursuer prepared certain drawings in relation to Glebe Street (hereinafter referred to as "the drawings"). That the pursuer's employment in relation to the various developments was terminated by the first defenders. The pursuer maintained that he had copyright in the drawings. The first defenders then employed the second defenders as architects in relation to the various developments. The second defenders then lodged drawings in respect of a planning application relative to the development at Glebe Street (hereinafter referred to as "the development"). The first defenders constructed the development in conformity with the planning permission. The pursuer alleged breach of copyright in so far as the second defenders were concerned in that they had copied substantial parts of the said drawings which were then used in support of the first named defenders planning application. The alleged breach of copyright in relation to the first named defenders was that they had constructed the buildings within the development in conformity with said copied plans.

Submissions for the pursuer
Competency
[4] The pursuer's counsel's broad submission under this head was that the action so far as directed against the first defenders should be dismissed on the basis that the action was incompetent.

[5] The first line of argument. In development of that submission counsel for the first defenders reminded me that the pursuer sought damages for breach of copyright from two separate defenders. The action brought against the two defenders sought damages in relation to two distinct wrongs, in that he submitted the breach of copyright in relation to each defender was different. The pursuer did not at any point aver that there was any question of joint and several liability on the part of the defenders. Rather there were two separate conclusions; one directed against each defender, each seeking damages for £50,000.

[6] He asserted that as a general rule, it was incompetent to sue more than one defender in the same action with separate conclusions against each based on separate and independent grounds of debt.

[7] In support of that submission he referred me to Treadwell's Drifters v RCL Limited 1996 SLT 1048.

[8] In that case, the company owned the whole recording and performance rights of a group "The Drifters". Certain individuals and companies were managing and promoting a group known as "The Sound of the Drifters" allegedly as "The Drifters". The singer in "The Sound of the Drifters" had previously sung with "The Drifters" and had contracted with the company not to utilise the name "The Drifters". The company sought, in separate conclusions in the same action, first, an accounting of profits from passing off against the individuals and companies jointly and severally; secondly, damages for breach of contract against the singer; and thirdly interdict against the promotion of performance of "The Sound of the Drifters" as "The Drifters". It was argued that it was incompetent for a pursuer to sue more than one defender in the same action, with separate conclusions against each defender, based on separate and independent grounds of debt.

[9] Lord Osborne held in that action that it required to be dismissed as incompetent and at page 1059 he gave the following reasons for his decision:

"In the first place, in Western Bank Liquidators v Douglas, at page 497, Lord Justice Clerk Inglis indicated that, if various defenders in an action are sought to be subjected in liability on separate and unconnected grounds, inferring separate individual liability merely, such a proceeding would be so flagrant a violation of ordinary practice that the summons concerned would be at once dismissed, regardless of what might once have been historical practice, as described by him at 496. The principle to which he referred, which I conceive to have been justified by the court's concerns, that the defenders should not be forced to be involved in an action in which some material part of the subject matter is unconnected with them, or their actions, is stated thus by McLaren at page 388 of Court of Session Practice; 'It is incompetent...for a pursuer to sue more than one defender in the same action, with separate conclusions against each defender based on separate and independent grounds of debt.'"

[10] Lord Osborne went on to apply the said principle to the facts of the case before him and opined as follows at page 1059:-

"...in these two conclusions ((a) for an accounting and (b) for damages), the pursuers are seeking against different defenders two different remedies. So far as the "grounds of debt" are concerned, in relation to the first conclusion, the ground is the delict alleged against the first, second, fourth and fifth defenders of passing off in respect of which the remedy of accounting is sought. In relation to the second conclusion, the ground of debt is an alleged breach of the terms of the last paragraph of the contract... I see these grounds of debts as separate and independent. Although it is true that they both arise from a common sequence of events, according to the averments of the pursuers, the legal requirements which the pursuers would need to establish to succeed are different in each case, as are the legal origins of liability. In the case of the alleged passing off, the pursuers would require to establish the elements of a passing off, recognising the various authorities to which I have referred, however, in relation to the second ground of debt stated against the third defender, what would require to be established would be that the third named defender had, to quote the wording of the contract concerned, "utilized the name" 'The Drifters'".

[11] Counsel conceded that the circumstances of the instant case were not as extreme as those in Treadwell's Drifters v RCL Limited. Nevertheless it was his submission that the rule set forth in that case when applied to the circumstances of the instant case required me to hold that it was incompetent.

[12] It was his submission that the underlying rationale for the principle as set out by Lord Justice Clerk Inglis was: that a particular defender should not be a spectator for material parts of the case while matters which solely related to another defender were being dealt with. He submitted that in the instant case that would be the position so far as the first named defenders were concerned in that while the court was dealing with the issue of copying of the drawings by the second named defenders, the first named defenders would have no interest in this and would thus be mere spectators. It was his position that it was likely that a substantial part of the proof would be taken up with the pursuer seeking to establish this copying of substantial parts of the drawings by the second named defenders. For these reasons he submitted that, the action as averred fell four square within the said principle and was incompetent.

[13] Counsel's second submission under this head was a short and sharp one. It was to the effect that the action was either incompetent or irrelevant in that there were no averments setting out the basis either in terms of statute or at common law upon which the claim was made. For the purposes of this argument he assumed that the case against the first named defenders and the second was based upon a breach of the Copyright Patent and Designs Act 1988 (hereinafter referred to as "the Act").

[14] However, it was his position that (1) if that was the case, then there was no reference to the Act within the pursuer's averments; (2) there was no reference to the sections of the Act which were founded upon; (3) there was no reference within the pursuer's averments to what he described as "key words" for example, at no point was any work done averred to be by the pursuer or that it was original (see section (1)(1) of the Act) and therefore the pursuer was not offering to prove that the drawings were original or that the pursuer was the author thereof. It was thus his position that there were no pleadings from which the court could hold that the pursuer had enjoyed copyright in the drawings and that there thus had been a breach in the said copyright.

[15] By analogy with reparation actions prior to the Coulsfield reforms, he submitted that a personal injury action in which the pleadings lacked averments of a similar type eg. Setting out the statute and the sections thereof which were said to have been breached would have been held to have been incompetent or irrelevant et separatim lacking in specification.

[16] The third submission under the head of competency was concerned with a short section of the pursuer's pleadings contained in article 1 of condescendence which were as follows:-

"With reference to the first defenders averments in answer admitted that the pursuer raised an action at Hamilton Sheriff Court against the first defenders. Admitted that the action was transferred to the Court of Session. Admitted that the pursuer no longer trades as a sole practitioner. Admitted that the business name DTA Architects is presently used by a limited company DTA Chartered Architects Limited. Admitted that the company has its registered office at 33 Kitters Street, East Kilbride... Admitted that it has a web site with address www.dtaarchitects.co.uk. Admitted that the web site records membership of the RIBA and RIAD and a move to new premises in August 2008. Quoad ultra the defenders averments in answer are denied except insofar as coinciding herewith. Explained and averred that the action raised in Hamilton Sheriff Court has been dismissed. The web site of DTA Chartered Architects Limited states that DTA Chartered Architects was formed in March 1985. With effect from 1 June 2007 the business formerly carried on by the pursuer has been carried on by DTA Chartered Architects Limited. The pursuer's rights against the defenders have not been assigned to DTA Chartered Architects Limited."

[17] Given the terms of said passage of avernments, counsel referred me to the judgment of Lord Allanbridge in Britton v Maple and Company Limited 1986 SLT 70.

[18] The facts of that case so far as material to his argument were - a retired joiner died from the effects of asbestos in May 1980. Members of his family sought reparation from one of his employers, from a Limited Company that had taken over the whole assets of his other employer in the relevant period, and from the owners of shipyards in which he had worked. It was argued on behalf of the company that had acquired the business of the former employer, that the widow and son had no right of action against the acquiring company.

[19] Lord Allanbridge held that the family were entitled to sue the company that had acquired the business of the former employer.

[20] Counsel referred me to a passage in Lord Allanbridge's judgment at page 70 in which he set out his reasons for so holding which was in the following terms:-

"As regards whether the first defenders were properly called as defenders, counsel for the pursuer stated that although H H Martyn and Company Limited were still technically in existence, it was averred by the first defenders on record that the net current creditors and debtors of H H Martyn and Company Limited were transferred to the first defenders on 26 January 1972. In 1972 the pursuer's claim was a contingent liability of H H Martyn and Company Limited but could nevertheless be properly described as a current debt. It could be given a value albeit on a contingent basis. Lord President Normand in Thomson & Balfour v Boag & Sons 1936 SLT 2 had stated:

'It is a settled principle of law that when the whole assets of a going concern are handed over to a new partnership and the business is continued on the same footing as before, the presumption is that the liabilities are taken over with the stock... The principle is that it would be inequitable to allow a trader to injure his trade creditors by assuming a partner and handing over his whole trading assets to the new partnership without liability to pay the trade debts.'"

[21] Counsel then contended that applying what had been said by Lord Allanbridge to the instant case the averments set out in said section of article 1 of condescendence were such that the right to sue for breach of copyright was presumed to have vested in DTA Chartered Architects Limited. Thus he submitted that the presumption was equally applicable to assets as to liabilities. It was his position that there were no averments on record which would entitle me to hold that the presumption should not apply. Accordingly he submitted that the action was incompetently laid.

[22] Counsel's fourth submission under this head was that the pursuer sought damages and additional damages against the first defenders. These were both sought in the same conclusion and it was his position that this was incompetent. It was his position that in order for the action to be competent, there should be separate conclusions ie one conclusion for damages and another conclusion for additional damages directed against the first defenders.

[23] In support of this submission he sought to illustrate the difficulties faced by the first defenders in dealing with the pursuer's present approach. It was his submission that as presently pled the first named defenders were unable to work out the extent of the claim made for additional damages and that for damages and if considering a tender were unable in those circumstances to make a tender.

[24] He then turned to refer to two cases which in his submission supported his position that the pursuer's approach was incompetent.

[25] First he referred me to Redrow Homes Limited v Bett Brothers Plc 1997 SC 142 (the judgment of the Inner House) and in particular to the judgment of the Lord Justice Clerk at 147:

"In this action the pursuers claim that the defenders have infringed their copyright in respect of the design of various types of houses which are built by the pursuers in the course of their business. It is averred that the designs were contained in drawings which the defenders had copied or used in the course of their own business of house building.

The pursuer seeks a number of remedies including, in terms of the third conclusion, an order ordaining the defenders to produce a full account of their profits ... realised by them by reason of their infringement and for payment of a sum equivalent to such profits and interest, failing which for payment of certain sums with interest to each of the pursuers. The pursuers do not seek an award of damages for any loss or damage sustained by them as a result of the infringement, but seek, in terms of the fourth conclusion, the payment of certain additional sums with interest as additional damages in terms of section 97(2) of the Copyright Patent and Designs Act 1988. According to the averments in article 6 of condescendence they seek such an award "having regard to the flagrancy of the infringement and the benefits (being the profits realised by the defenders, subject to their obligations to account to the pursuers for such profits as found after an accounting with this court) accruing to the defenders."

[26] He submitted that the foregoing passage supported his contention that as "a matter of practice" a defender should not face a global claim contained in a single conclusion in relation to two distinct claims ie for damages and additional damages.

[27] He also referred me to Dorrans v The Shand Partnership and Others an unreported decision of Lord Kingarth dated 16 December 2003. The facts of this case insofar as material were that the pursuer was an architect and in the action sought inter alia, damages against a number of defenders for breach of copyright in certain drawings prepared by him. At page 2 paragraph 5, Lord Kingarth set out the manner in which the pursuers had pled their action:

"The pursuer concludes for damages of £10,000 against each of the first, third, fourth and fifth defenders. It is said that these sums 'represent the licence fee which the respective defenders would have required to pay to the pursuer for the use of the drawings made by each of them'. Further, having regard to 'the whole circumstances, and in particular the flagrancy of the infringement and benefits accruing to the first ... defenders by reason thereof', the pursuer seeks additional damages against the first defenders. The sum sought by way of additional damages is £5,000."

[28] Counsel's position was that the foregoing paragraph again supported his position as to the proper approach to pleading a case of the type before me.

[29] For the foregoing reasons counsel submitted that the pursuer's case as presently pled was incompetent.

Relevancy
[30] Counsel commenced his address under this head by stating his broad position as follows: the case should be dismissed for want of relevancy and specification. Adopting the Jamieson Test there were insufficient averments which if proved would lead to damages. Separatim he submitted the pleadings lacked specification. He then developed his general position in a series of detailed submissions as follows:

[31] The fifth line of argument. His first submission under this head was this: having regard to the weaker alternative rule, the gravemen of the pursuer's complaint is to the effect that he ought to have obtained an assignation of his copyright from the second defenders. Had he obtained an assignation from the second defenders, he submitted the pursuer would not have been able to obtain any sum of money from the first defenders. It was his position that as a matter of logic the right to demand a separate licence or assignation would have transmitted to the second defenders.

[32] His position appeared to come to this: if the second defenders paid for and obtained an assignation of the copyright, what would there have been left to obtain from the first defenders?

[33] The sixth line of argument. Counsel's next submission was this: that as a matter of law it was not possible to sue for damages for breach copyright when seeking to affirm the contract at the same time.

[34] The pursuer he contended accepted in his pleadings that he had made a claim for payment in respect of the work performed by him. He then submitted that as a matter of law an architect who had been paid adequately for plans prepared by him in relation to a contract granted an implied licence to make use of the plans. His submission came to this that the pursuer was proceeding under two mutually inconsistent bases in the action in that he had sought payment and was also seeking damages for breach. It was his submission that the pleadings as so stated were irrelevant.

[35] The seventh line of argument. Counsel's third submission under this head was again a short and sharp one and was this: the pursuer's averments concerning what the first defenders did were irrelevant and lacking in specification in that although there was a complaint of making use of plans, there were no averments of copying. In addition he contended that it was unclear as to what part of the Act the pursuers relied upon.

[36] The eighth line of argument. The next submission under this head turned from criticism of the pursuer's averments in relation to the merits of the action to make certain detailed criticisms regarding the pursuer's averments on the issue of damages.

[37] Counsel opened by pointing to the fact that the pursuer concluded for the same sum of damages against each of the defenders. He thereafter went on to make a point which he had made earlier in his submission that there were no averments from which the pursuers could deduce whether the pursuer was seeking a large or small amount of damages or a large or small amount of additional damages.

[38] In addition it was his submission that there were no averments providing a figure that the pursuer would have charged for an assignation or licence which he submitted was the proper measure of damages.

[39] The ninth line of argument. Counsel then turned to make specific criticisms of the pursuer's averments in support of the claim for additional damages.

[40] Under reference to section 97(2) of the Act it was counsel's position that in order to plead a relevant case seeking additional damages it was necessary to make averments (1) that the infringement of the copyright was flagrant and (2) as regards the benefit accruing to the defenders by reason of the infringement.

[41] In addition counsel submitted that under reference to paragraph 28 in Lord Kingarth's judgment in Dorrans v The Shand Partnership and Others it was necessary for the pleadings in order to give fair notice to the first defenders that they make it clear how additional damages arise against them as opposed to the other defenders.

[42] It was counsel's submission that in respect of all these essential matters that the pursuer's pleadings were irrelevant. It was his position that the pursuer had failed to refer to flagrancy within their pleadings; did not explain how benefit had accrued to the first named defenders from the breach; and had not set forth averments which clearly set out a basis upon which additional damages were claimed specifically from the first defenders rather than the second defenders. He submitted that the averments were no more than formulaic with no real content.

[43] Counsel made one further criticism of the pleadings in support of the pursuer's claim for additional damages. In making this final submission he adopted the definition of "flagrancy" of Brightman J given in Ravenscroft v Herbert and Another 1980 RPC 193 at 208:

"Flagrancy in my view implies the existence of scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringements."

He submitted that there were having regard to that definition of flagrancy no averments made by the pursuer which would justify a case for additional damages.

[44] Lastly it was counsel's position that if his fifth proposition based upon the weaker alternative rule was not accepted then it was his position that, in any event the pursuers were prima facie seeking the same damages twice. It was his position that in the absence of averments explaining why they were entitled to seek damages from both of the defenders the action should be dismissed in so far as directed against the first defenders. It was his submission that the case against these defenders was that a secondary infringement had taken place and that in these circumstances the pursuers were not entitled to damages from them.

[45] For the foregoing reasons he submitted that the pursuer's case as laid against the first defenders was incompetent; et separatim irrelevant, et separatim lacking in specification. He accordingly moved me to uphold the first named defenders first and second pleas in law; to repel the pursuer's pleas in law and to dismiss the action.

[46] Counsel then dealt with two minor procedural issues: he first moved that in any event the pursuer's fourth plea in law should at this stage be repelled as there was no note in support of it which had been lodged. Secondly he moved that the arguments relevant to the first defenders sixth plea in law should be reserved in that the issues thereunder were incapable of resolution at debate. There was no opposition in relation to either of these procedural motions.

The pursuer's submissions in reply
[47] Senior counsel for the pursuer opened his submissions by inviting me to refuse the motion made on behalf of the first defenders and to repel the first defenders first and second pleas in law.

[48] Before turning to look at the averments on behalf of the pursuer in detail he briefly summarised for me his position as to what the pursuer's case was on record against each of the defenders.

[49] It was his position that the pursuer's case on record was that as an architect he had been instructed by the first defenders predecessors in title to produce certain plans and designs. Having done that the first defenders dispensed with his services and employed the second defenders. He emphasised that the pursuer's case had nothing to do with whether the first defenders were entitled to dispense with his services and employ the second named defenders. It was his submission that the pleadings should be approached on the basis that they were entitled to do this. However, it was the pursuer's case that because he had not been fully paid for the work which he had carried out, there was no implied licence to use the plans. It was thereafter the pursuer's position that despite that, the second defenders being the architects then employed by the first named defenders, used the pursuer's plans ie copied them to obtain an amendment to the planning consent. Thereafter the first defenders had constructed the building in conformity with the planning consent. He emphasised that it was this reproduction of the plans and erection of the building in conformity therewith which it was contended amounted to breach of copyright on behalf of respectively the second and first named defenders and therefore entitled the pursuer to an award of damages against each defender. Turning to the question of damages, it was his position that there was a factual basis for assessing the damages to which the pursuer was entitled and this was based on a calculation of what he would have obtained for the licence to use his plans. He stressed that the grounds upon which the action was raised were breaches of copyright and not failures to pay the pursuer for the licence. With that introduction he turned to examine the statutory framework within which he said the pursuer's case fell.

[50] For the purposes of his argument the relevant sections of the Act were:

"16(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom-

(a) to copy the work ...

(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it:

(a) in relation to the work as a whole or any substantial part of it, and

(b) either directly or indirectly;

and

Section 17(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work."

[51] It was his position that the pursuer's plans were an artistic work and had been copied. He drew my attention in particular to the phrase "directly or indirectly" in section 16(3)(b) and submitted that the second defenders had infringed the copyright in the plans by copying them, then the first defenders by the erection of the building in conformity with these plans had indirectly breached the copyright and he emphasised that in terms of section 17(3) copying can include the making of a copy in three-dimensions of a two-dimensional work.

[52] Having set out in summary what he said the pursuer's case was and its legal framework he then indicated what in outline in his submission could be taken from the pleadings.

[53] Turning to article 1 of condescendence it was his submission that two matters of importance for the purpose of his detailed reply could be taken therefrom. First that it was averred specifically that there was no assignation of the pursuer's rights to DTA Chartered Architects Limited and; secondly that the action in Hamilton Sheriff Court had been dismissed.

[54] Condescendence 2 dealt with the background to the action and importantly contained a specific averment that no licence in relation to the drawings had been granted by the pursuer to the defenders.

[55] Condescendence 3 he submitted importantly contained a specific averment that the drawings were artistic works and that the copyright belonged to the pursuer.

[56] It was his position that the detailed averments contained in article 7 of condescendence supported the contention that the drawings were artistic works rather than mere sketches into which no real thought had been put.

[57] He submitted that three averments contained in articles 3 and 4 were of significance relative to the issue of copying and flagrancy. These averments were to the effect that (a) the second defenders had employed a former employee of the pursuer's, namely a Mr Fegan who had prepared certain drawings for the pursuers in relation to this project and then acted for the second defenders in relation to the same project: (b) the averments relative to the date 27 September 1996 being the date of a drawing submitted by the second defenders in relation to the development which bore the same date as that on which they advised the pursuer they had been instructed and; (c) the averment that in addition on said date the pursuer had written to the first defenders asserting that he retained the copyright in the drawings.

[58] Relative to article 5 of condescendence he submitted that when read with article 7 it set out the extent of the copying of the drawings by the second defenders while acting for the first defenders.

[59] Article 6 of condescendence he submitted clearly set out the basis upon which he sought to prove that no express or implied licence had been granted by the pursuer. In addition it gave notice to the first defenders as to what they had done in breach of the copyright namely; as developers they had erected the building in accordance with the planning permission granted and accordingly in so constructing the building it was based upon the copying (referred to in article 5 of condescendence). Thus there was an indirect infringement of the copyright. Thirdly he submitted that this article of condescendence made it clear that the action was for breach of copyright. Lastly at the bottom of page 14 the top of page 15 of the record there were detailed averments of the fee the pursuer could have negotiated in return for granting a licence thus setting out a detailed basis for the claim for damages.

[60] Senior counsel having looked generally, at the contended basis of the pursuer's case; its legal context and the general manner in which the case was developed in the pleadings then turned to look at the various detailed arguments as developed on behalf of the first defenders in the course of counsel's submission on their behalf.

[61] With reference to the first defenders counsel's argument on competency, he referred me to Yoker Housing Association Limited v McGurn Logan Duncan and Opfer 1998 SLT 1334.

[62] The facts of that case so far as material were that a housing association sought damages in the same action from a firm of a architects and a firm of engineers with whom they had entered into separate contracts in respect of the rehabilitation of five closes. Defects in design and execution of the works came to light. The pursuer's sued the architects for certain of the defects and the architects and the engineers jointly and severally for other defects. The engineers argued that the case against the architects was based on one ground and that against the architects and engineers was based on a different and independent ground accordingly the action was incompetent.

[63] It was senior counsel's position that the general approach to the application of the rule identified by Lord Justice Clerk Inglis, in Liquidators of the Western Bank of Scotland v Douglas 1860 22D 497 could be identified from the judgment of Lord MacLean who had examined in the course of his judgment the leading authorities of relevance to this issue.

[64] Lord MacLean first examined the decision in Liquidators of the Western Bank of Scotland v Douglas . The facts in that case in so far as material were that the action arose out of the actions of the Banks Board of Directors over a period of 10 years. While one director remained throughout the whole of that period, other directors were on the Board for considerably lesser periods. The Lord Justice Clerk in that case laid down the rule upon which counsel for the first defenders relied namely:-

"Where two defenders 'were sought to be subjected on liability on separate and unconnected grounds, inferring separate individual liability merely, the proceeding would be so flagrant a violation of ordinary practice, that the summons must at once be dismissed'."

[65] Senior counsel submitted that the important part of that passage was the reference to separate and unconnected bases of liability. Applying that approach to the circumstances of the instant case, he submitted that the breaches were wholly connected. The case against the second defenders was of a direct breach by copying the drawings and the case against the first defenders was said to be an indirect breach which flowed from that direct breach namely the erection of the building in conformity with the drawings which were copied. Thus he submitted that it could not be said that the grounds of liability were unconnected.

[66] Counsel submitted that further assistance to the approach to the rule could be obtained from consideration of the case of Duke of Buccleuch v Alexander Cowan 1864 2 M 653 and in particular the judgment of Lord Justice Clerk Inglis. That case involved an action for declarator and interdict against various proprietors of Paper Mills on the River Esk who used and discharged the water of the river in the manufacture of paper.

[67] Lord Justice Clerk Inglis opined in that case as follows:-

"The object of this action is to protect the River Esk from pollution by the operations of the papermakers upon the river. It appears to me that that simple statement of fact, and of the object of the action, at once suggests the extreme propriety and expediency of the proprietors who are injured being all here, on the one hand, and the papermakers who are said to inflict the injury being all here, on the other hand. No doubt if there were any rules in our practice which rendered it incompetent for parties having all a common interest in a stream to pursue an action against parties who all contribute exactly in the same way to the pollution of the stream, we must give effect to that rule of practice but I know of no such rule, and, therefore, I am bound to look upon this as a question depending on general principles. I think the case will be most fully and fairly tried having all the parties called who are interested on the one side or on the other."

[68] Counsel drew from this passage the importance of the issue of expediency and being able to fully and fairly try a case. He submitted this had to form part of the approach to the rule. Applying that approach to the instant case he submitted that there was a substantial argument based on the consideration of expediency and fairness that the parties should be tried together. It was his position that the first defender had a considerable interest in the issue of whether there were substantial similarities between the second defenders drawings and those of the pursuer given that the first defenders breach was said to be an indirect one flowing from that direct breach. He submitted that it would be wholly inexpedient to have two proofs in which the said issue would require to be litigated upon. He submitted that the same type of approach as adopted by Lord Justice Clerk Inglis could be identified in the case of Miller, Peel Hughes Rutherford &c v J H Forrester 1897 5 SLT 71 which was considered by Lord MacLean at 1337 B-E. In that case one of the considerations in holding that the action was competent was that there was "a manifest convenience" in raising one action against all the defenders. It was his position that it was clearly manifestly convenient in the instant action to have the matters dealt with in one action for the reasons he had previously advised.

[69] Lord MacLean next looked at the case of Exchange Loan Company v Levenson 1905 21 Sh. Ct Rep 33. Again counsel submitted that there were helpful comments made in that case as to the approach to be taken to the application of the rule and in particular referred to the following passage as summarised by Lord MacLean at 1337 F:

"It was not competent to call two defenders or sets of defenders on separate grounds of debt in the same action. There being no other connection between the defenders except that, there should be two separate actions. A defender should not be subjected to a great amount of litigation, involving, it might be, great delay in determining a question with which he was in no way connected."

[70] Counsel drew two points from this. First that in the instant case there was real connection between the first and second defenders and not an accidental one. Secondly that the connection between the defenders in the instant case was part of the substance of the case against the defenders. Thus he submitted the first defenders would not be subjected to a great amount of litigation and consequent delay in determining any question in which they were not truly involved and connected to.

[71] Lastly, turning to Treadwell's Drifters v RCL Limited upon which counsel for the first defenders had relied he submitted that the circumstances of that case were wholly different from that in the instant case and the case could be distinguished from the instant case on the following bases:

(i) In Treadwell different remedies were sought against each defender. In the instant case no such different remedies were sought.

(ii) In Treadwell the bases of the remedies differed. One based on the delict of passing off, the other based on breach of contract. In the instant case the grounds of action were the same in each case, ie infringement of copyright and the legal requirements were the same in relation to each defender.

(iii) The facts overlapped in relation to each defender unlike in Treadwell's case.

(iv) In the instant case two procedures did not require to be followed unlike in Treadwell as set out by Lord Osborne at page 1060 these two procedures in practical terms are: "widely different, I cannot see how the court could follow through these procedures in one action in a manner which was in accordance with the requirements of justice." He submitted that that problem did not arise in the instant case.

[72] Lastly in relation to this first head of argument, senior counsel returned to the Yoker Housing Association Limited case and adopted the observations of Lord McLean at 1338C as to how the various considerations should be applied:

"I think that the pursuer's senior counsel was right when he said that they should be applied in a commonsense manner by way of impression."

[73] Senior counsel then submitted that if I applied such a commonsense test to the circumstances of this case, the matter was clearly not incompetent. He submitted that for the reasons he had advanced when looking at the relevant considerations in the application of the rule this case was not one that came within the ambit of the rule.

[74] It was his submission that rather than there being an injustice in litigating the matter together, there would be patent injustice and inconvenience were there to be separate actions. Efficient management required the case between the two defenders to be litigated in one action. He made one further point in support of his submission that the action was competent which was: that it had been suggested in the course of the first defenders counsel's submissions that there was some question of double recovery which might occur in this case. He submitted that the one certain way of avoiding any double recovery would be if the matter were litigated in one action and that the risk of double recovery would be much more apparent if there were separate actions.

[75] So far as the second line of argument advanced by counsel for the first defenders under this head was concerned, senior counsel's reply was a short and trenchant one: it was his position that the argument for the first defenders appeared to come to this; there was no express reference by averment to the Act; and no express averments of what counsel for the first defenders described as keywords or phrases from the Act. His answer to that was "So what"?

[76] The whole procedure roll he submitted had proceeded on the basis (as had the first defenders note of argument) that the case was based on breach of the Act, therefore the first defenders were from the pleadings, well aware that the claim was brought under and in terms of the Act. Secondly, he did not require to plead keywords or key phrases if, as he submitted he had done, he had plead and thus given notice of facts sufficient to prove his case.

[77] As regards the third argument under this head (what could broadly be described as the title to sue point) he referred me to two particular matters within article 1 of condescendence:

(a) There was no averment of a general transfer of assets and liabilities by the pursuer to the limited company and

(b) In order to put the matter beyond doubt there was the following averment:

"The pursuer's rights against the defenders have not been assigned to DTA Chartered Architects Limited".

[78] He submitted that the foregoing was all that the pursuer required to plead in order to rebut the presumption and to establish title to sue. It was his position that all Britton v Maple decided was that there was a presumption that liabilities are taken over by the new entity where assets are transferred. Thus in terms of Britton v Maple the pursuers' had made sufficient averments.

[79] In any event he submitted that the rationale for this rule was to protect creditors of the original entity. The said rule protected them in that they knew against whom to initiate actions ie they knew where to pursue their debts. The same rationale he submitted would not apply to the opposite situation, as in the instant case.

[80] The fourth argument of the first defenders to the effect that it was incompetent to claim different forms of damages in a single conclusion, senior counsel submitted was clearly wrong. He began his submissions under this head by conceding that in the cases referred to by counsel for the first defenders additional damages and damages were sought in separate conclusions. In addition he accepted that from his own experience he had come across situations where damages and additional damages were sought in terms of separate conclusions. However, he submitted it was not incompetent to claim damages and additional damages in the same conclusion as he submitted they were both damages. It was his position that the paradigm of such a situation was a personal injury action where frequently a large number of heads of damages were sought within a single conclusion.

[81] He accepted that for the purposes of the foregoing argument he had to satisfy me that additional damages were as he had contended damages. In support of his submission that they were properly understood damages he referred me to Redrow Homes Limited v Bett Brothers Plc 1998 SC (HL) (64). In that action consideration was given to whether additional damages were properly understood damages. Lord Jauncey of Tullichettle in his speech at page 68H to 69C opined as follows:

"The words additional damages without further explanation or qualification immediately provoke the question additional to what? The natural and ordinary meaning is additional to other damages already assessed, or as the respondents put it succinctly more of the same. That is the proper meaning of the words in section 229(3). This was the meaning of the words in section 17 and deletion of the italicised words on re-enactment has in my view done nothing to alter that meaning. It would be surprising if sections 229(3) and 97(2) albeit in almost identical terms were to be construed as producing substantially different results. Furthermore in light of the provisions of section 172(1) and (2) it would be particularly remarkable if Parliament had intended to create an entirely new independent remedy available against infringers whether innocent or not in a section dealing with damages rather than remedies and that solely by implication as a result of the omission of certain words in a re-enacting section."

[82] Lord Clyde in his speech at 69 G to H concurred with the view expressed by Lord Jauncey:

"In the first place the language used in the statute seems to me to point to the understanding that what is intended in section 97(2) is an enhancement of an award of damages and not the provision of a self-standing remedy. The use of the word 'damages' in sections 96(2) and 97(1) plainly refers to the ordinary remedy of damages and it is quite difficult to read the term "additional damages" in section 97(2) as something quite separate and distinct."

[83] As regards the first defenders fifth line of argument founding on the weaker alternative role, he submitted that it proceeded upon a misconception. He submitted that the only relevance of the references within the pleadings to the assignation of the licence was in order to quantify damages for breach of copyright. The claim by the pursuer was not based upon a failure to obtain an assignation on the basis that that was an actionable wrong. Accordingly there was no question of the weaker alternative rule applying.

[84] As regards the sixth line of argument, counsel dealt with this briefly. The action in no way he submitted sought to ride two horses at the same time ie the action did not seek payment in terms of the contract and damages. The pursuer as averred in article 1 had raised an action for payment that had been dismissed and he was now pursuing a claim for damages for breach of copyright namely the instant action. He submitted that if what the first defenders counsel was submitting was that an architect could not sue for breach of copyright until he had proceeded with an action for payment to the point of absolvitor that was an unstateable position wholly unsupported by any authority.

[85] The seventh line of argument. Senior counsel's position was that the averments relative to copying by the first defenders were sufficient. He referred me to his submissions earlier as to the averments of what he described as the intermediate step of copying by the second defenders of the plans. He then submitted that there were averments that the building had been erected by the first named defenders in conformity therewith. There was no suggestion that the first defenders had not constructed the building in accordance with the planning permission and thus they copied the plans.

[86] The eighth line of argument. Senior Counsel submitted that the pursuer made extensive averments as to how damages were calculated. The proper measure of damages he submitted was what the pursuer would have obtained for the licence and at pages 15 and 16 of the record he submitted that the pursuer set out in detail what they could have received for the licence if granted.

[87] As to the question which the first defenders counsel had asked in the course of his submissions; what sum was claimed in relation to damages and what was claimed in relation to additional damages? He submitted that the answer to that was straightforward. There were detailed averments as to damages and therefore the remainder of the total claim related to the claim for additional damages. The first defenders counsel had in addition asked in the course of his submissions how were the first defenders to know what to tender and his brief answer to this was: value the claim against them.

[88] His position in summary was that claims for damages by their nature are somewhat imprecise. However, the pursuer had made detailed averments as to how he set out to prove his claim for damages and that was all that he was required to do.

[89] The ninth line of argument. Senior counsel referred me to the leading English textbook on copyright namely Copinger on Copyright at 22:169 and 172 and submitted that from these passages three broad factors were of relevance in considering whether conduct could properly be described as flagrant and thus could give rise to a claim for additional damages. These were:

1. Deliberate and calculated infringement

2. The fact that the material reproduced was obviously stolen from the claimant and

3. The fact that the infringement continued in the face of a warning.

It was his submission that averments under each of these heads were made by the pursuer and this submission was made under reference to averments regarding Mr Fegan made in article 3 of condescendence at page 9 relating to his employment by the pursuer in relation to the development and his subsequent employment by the second named defenders in relation to the development; the averment in article 4 of condescendence at page 10 to the effect that by letter dated 27 September 1996 the pursuer wrote to the first defenders and advised inter alia that he retained copyright in respect of the drawings.

[90] Under reference to the second part of the test he submitted that there were also averments relevant to benefits accruing to the first defenders by virtue of the infringement. He pointed to averments in article 6 of condescendence at page 14 to the effect that the pursuer, was a well known and highly respected architect and the defenders had benefited therefore from his input to the drawings.

[91] He submitted that on a test: would the pursuer's case seeking additional damages necessarily fail, the answer to that must in the light of the foregoing averments be no.

[92] The tenth line of argument. Senior counsel submitted that the answer to this line of argument could be set forth succinctly and was this: there had been two breaches of copyright, one by each defender. Accordingly the pursuer's was entitled to seek damages against each defender. He of course accepted that there could not be double compensation.

[93] For the foregoing reasons he submitted that I should repel the pursuer's two preliminary pleas in law.

Discussion
[94] Before turning to deal with the first named defenders detailed arguments and senior counsel's specific responses to these on behalf of the pursuer I would observe that counsel for the first defenders general approach to the pursuer's pleadings was in my judgment incorrect. His approach when analysed was to look at averments in isolation rather than to look at the pleadings made on behalf of the pursuer as a whole and to read them together which is the proper approach. He tended to look at averments made on behalf of the pursuer in isolation and to take them out of context. This approach has caused him to misunderstand the pursuer's case and to construe the pursuer's case in a manner which on any fair and proper reading could not be sustained. In addition this has led to him making a number of submissions which in my view were clearly misconceived. Secondly he appears when addressing the issue of relevancy to have misunderstood the test namely: that an action will not be dismissed as irrelevant unless it must necessarily fail if all the pursuer's averments are proved: Jamieson v Jamieson 1952 SC (H.L.) 44 per Lord Normand at 50 and Lord Reid at 63. Accordingly it was my judgment that for the foregoing reasons the first defenders counsel's criticisms of the pursuer's averments were often ill-founded.

Competency
[95] As regards the first defenders counsel's first argument under this head that the action as pled having regard to the rule set forth by Lord Justice Clerk Inglis in Western Bank Of Scotland Liquidators v Douglas, was incompetent, this on a superficial examination initially had certain attractions, however, on closer and more detailed consideration I am wholly satisfied the first defenders counsel's submission was not well founded.

[96] There was no dispute as to the rule set forth by the Lord Justice Clerk. The dispute between the parties related to the application of it to the circumstances of the present case.

[97] In my judgment on a proper analysis of the pursuer's pleadings the case against each defender was based on a breach of copyright; the case against the second defenders is based on the direct breach by the copying of the drawings by them; the breach by the first defenders is based on the indirect breach of copyright by their use of the drawings in the construction of the building.

[98] Thus the case against both the first and the second named defenders is based on the same legal wrong, namely breach of copyright; in relation to both the first and the second named defenders, the same remedy is sought, namely damages. In addition the breach of the first defenders flowed from and was thus intimately connected to the breach of the second defenders. Clearly factually and legally the cases against each defender are inextricably linked. On that analysis I can see no circumstances in the case before me which cause it to fall within the terms of the rule and thus to be incompetent.

[99] Turning to the analysis of the approach to the application of the rule as set out by Lord MacLean in his review of the authorities in Yoker Housing Association Limited v McGurn Logan Duncan and Opfer it is my clear view on a consideration of all of the factors that are said to be relevant when considering the application of the rule, that all of them clearly point to the pursuer's case not falling within the ambit of the rule outlined by Lord Justice Clerk Inglis.

[100] The grounds upon which the action are taken against the first and the second defenders are clearly intimately connected for the reasons which I have already given. There is thus a common interest in the position of the two defenders. This points clearly to it being in the interests of justice that the case be brought against the two defenders in the same action.

[101] It is clearly manifestly convenient to have the case brought against the two defenders in the same action. In my view, if there were to be two actions, this would be likely to lead to injustice and to manifest inconvenience. It is clear that one of the major areas of evidence will relate to the question of whether there are substantial similarities between the drawings by the pursuer and the drawings prepared by the second named defenders. This will, in my judgment, likely form the largest part of any proof. Contrary to what was submitted on behalf of the first defenders, in my judgment they clearly have a substantial interest in the said evidence. That interest arises from the fact that it would only be if the pursuer establishes the foregoing that they could be found liable. It would in my view be manifestly inconvenient if that matter had to be proved twice ie in one action against the first defenders and then again in another action against the second defenders. No delay would result to the first defenders in the two defenders being sued in one action. In the whole circumstances I can see no requirement of justice in holding that there should be separate actions against the two defenders. On the contrary it would be contrary to the interests of justice to have two actions.

[102] In addition it is my clear view that none of the factors which caused Lord Osborne to hold that the action in Treadwell's Drifters v RCL Limited was incompetent exist in the present case.

[103] Accordingly for the foregoing reasons I reject counsel for the first defenders primary argument on competency.

[104] The first defenders second line of argument was in my view misconceived. First it did not appear to me to fall happily under the head of an argument based on competency. Rather the argument was truly one in my judgment based on relevancy and specification.

[105] The underlying point in the submission appeared to be that unless the Act was mentioned expressly within the pursuer's pleadings and unless what counsel for the first defender described as key phrases appeared expressly within the pursuer's pleadings, then the action he submitted must be incompetent. That submission in my judgment must be wrong. As a matter of relevancy, which in my judgment was properly the basis of the first defenders' counsel's attack the pursuer must plead sufficient averments against the first defender that if proved it would entitle the court to hold that there was an indirect breach of copyright. Thus there would have to be on record averments which amounted to copying in three dimensions of at least a substantial part of the drawings of the pursuer which were works in which the pursuer could hold copyright and in which he had asserted his copyright. In my view there are on any sensible reading of the pursuer's averments when taken as a whole and read together sufficient such averments. The pursuer pleads inter alia at article 3 of condescendence page 9.

"Said drawings are artistic works. Copyright in respect of said drawings belongs to the pursuer".

Article 6 of condescendence at page 14:

"For the reasons set out hereafter said sum of money is not a reasonable fee in respect of that work. Accordingly the first defenders have not either expressly or by implication been granted a licence to make use of the pursuer's plans. By erecting the business centre and constructing a car park and streetscape in accordance with the plans prepared by the pursuer the first defenders have materially reproduced the pursuer's plans thereby breaching the pursuer's copyright in said plans. Reference is made to the averments in the preceding article".

Article 5 of condescendence to which reference is made in the passage which I have just quoted sets forth in considerable detail the substantial copying with particular reference to the type of factors said by Mr Justice Hoffman (as he then was) to be material when considering the issue of copying in Billhoffer v Maschinenfabrik Gmbh TH Dixon and Co Ltd 1990 FSR 105 at 121 and 122.

[106] I accept there is no express averment referring to the Act or to any particular sections thereof, in my Judgment from the standpoint of relevancy there is no need for any such references within the pleadings.

[107] So far as the pursuer not having given fair notice of the basis of the case pled against the first defenders this again on a fair reading of the whole of the pursuer's pleadings taken together, cannot in my judgment properly be asserted. It is clear on such a reading that the pursuer's case against the first defenders is based on breach of copyright; that it is based on an indirect breach of copyright; that the copying arises and flows from the construction of the property in conformity with the planning consent which was based on the second defenders copying of substantial parts of the pursuer's drawings. I cannot under reference to the pleadings which I have just detailed see that there has been any lack of fair notice of the pursuer's case against the first named defenders.

[108] The third argument relative to title to sue can in my opinion be dealt with briefly:

(i) The ratio of the decision in Britton v Maple and Company Limited is that there is a presumption that liabilities are taken over with stock or put another way that on a general transfer liabilities go with assets.

(ii) There are no averments made on behalf of the pursuer in article one of condescendence or elsewhere that there has been such a general transfer. Even if on a proper reading of the pursuer's averments in article 1 of condescendence, excluding the last line thereof, it could be said that an inference that such a general transfer had taken place arose, the said presumption, would be answered by the averment made in the last sentence in article 1 of condescendence which is in the following terms:

"The pursuer's rights against the defenders have not been assigned to DTA Chartered Architects Limited."

That averment in my judgment is a complete answer to any argument based on the principle outlined in Britton v Maple and Company Limited. In addition for the reasons advanced by senior counsel for the pursuers I do not believe the said principle can be extended to a situation, where as here, rather than a liability an asset is referred to. In my view there is title to sue.

[109] As regards the fourth argument on competency that the pursuer could not sue for damages and additional damages within the same conclusion, I consider that the opinion expressed in the speeches of Lords Jauncey and Clyde in Redrow Homes v Bett Brothers as to the nature of additional damages is clearly correct.

[110] Having held that additional damages are damages properly understood, I have no difficulty in holding that the arguments put forward by senior counsel for the pursuer that various heads of damages can be sought in terms of one conclusion for damages is correct. The cases founded upon by counsel for the first defenders are in my judgment no more than examples of where damages and additional damages have been sought in terms of separate conclusions. They are, however, no more than examples of such a form of pleading. There is nothing said in either of the said cases to cast doubt on the competency of damages and additional damages being sought in terms of the same conclusion. As senior counsel pointed out in the area of personal injury cases many different kinds of damages are often sought in terms of a single conclusion.

[111] Turning to counsel for the first named defenders, fifth line of argument I hold that on a fair and proper reading of the pursuer's pleadings, the reference to assignation relates solely to quantification of damages and accordingly this line of argument is misconceived. It is clear on an examination of the averments in article 6 of condescendence at pages 15 and 16 of the record that this passage of averments is setting out the quantification of the pursuer's claim for damages and in addition it is prefixed at the bottom of page 14 as follows:-

"The fee that the pursuer would have been able to negotiate in return for granting the defenders licence to copy his drawings can be ascertained in accordance with ...".

Over and above this, the rest of the pleadings of the pursuer on a proper understanding make clear that the case is based on breach of copyright. Accordingly I have come to the clear view that the pursuer's arguments in relation to this particular attack on his pleadings, fall to be preferred to those advanced on behalf of the first named defenders and I have nothing further to add.

[112] The sixth line of argument advanced on behalf of the first named defenders is in my Judgment misconceived. The pursuer does not seek to affirm the contract and seek damages. The pursuer in article one of condescendence avers that

"the action (payment) raised in Hamilton Sheriff Court has been dismissed".

Thereafter on a proper reading for reasons I have already stated the instant action proceeds on the basis of a breach of copyright by both defenders. There are certain references in the pursuer's pleadings to payment by the first defenders however these are made in the context of a calculation of damages, thus the pursuer admits he has received certain payment from the first defenders namely £10,400 (see page 15 of the record). He expressly avers at page 15 that that payment was "a payment to account" and it is implicit on a reading of his whole averments at pages 15 and 16 of the record that he has not received adequate payment and therefore no implied licence has been granted, (see also the averments at page 14 earlier quoted). Thus it is clear that the pursuer is not seeking payment and damages for breach of copyright but is rather on the averments seeking the latter, the averments re partial payment being in the context of a calculation of damages. I hold this criticism of the pursuers case to be without merit.

[113] The seventh line of argument. The pursuer makes the following averments in article 6 of condescendence at page 14 of the record to which I have already made reference:

"Accordingly the first defenders have not either expressly or by implication been granted a licence to make use of the pursuer's plans. By erecting the business centre and constructing a car park and streetscape in accordance with the plans prepared by the pursuer, the first defenders have materially reproduced the pursuer's plans thereby breaching the pursuer's copyright in said plans. Reference is made to the averments in the preceding article. By copying a substantial part of the pursuer's plans the second defenders have breached the pursuer's copyright in said plans."

In the said short passage the pursuer clearly and succinctly set out their case against each defender. Against the second named defenders it is averred they copied substantial parts of the plans. Reference is made to the nature and extent of that copying in article 5 of condescendence. In article 3 of condescendence it is set out that the drawings copied were used in the amended planning application for the development. The first named defenders in said passage quoted are said to have erected the building in conformity with the plans and thus copied in 3 dimensions the plans and thus indirectly breached copyright. There are thus averments of copying and of what was copied. There is no need for any further specification. Accordingly in my judgment the pursuer fully and properly sets out the bases of the case against each defender and in particular sets out fully in relation to each defender the nature of the copying contended for. By reference to the immediately preceding article of condescendence the pursuer details the nature and extent of the copying and thus offers to prove that substantial parts of the pursuer's plans were copied. For the foregoing reasons I am of the clear view that the first defenders' attack on the pursuer's pleadings under this head is not well founded.

[114] Eighth line of argument. There is in my opinion no justification for the first defenders counsel's challenge as regards the adequacy of the pursuer's claim for damages. At pages 14 to 16 the pursuer has made detailed averments regarding the basis of the claim for damages and their quantification. The measure of damages which he has chosen namely: what the pursuer would have received had he granted an assignation in relation to the copyright is the correct one. He thereafter fully sets out how he has arrived at the figure for what he would have received for the assignation.

[115] No similar averments are made in relation to the calculation of additional damages. It would in my judgment given its nature not be possible to make such averments in relation to additional damages. Rather as I will deal with specifically when I turn to the next line of argument the pursuer sets out with sufficient specification in order to give fair notice the factors upon which he relies in order to establish his claim under this head. I do not believe he is required to plead more in order to give fair notice or to make a relevant claim for additional damages. Senior counsel for the pursuer gave fairly short shrift in his reply to the questions asked by the first defenders counsel in the course of his submissions under this head which he claimed had not been answered by the pursuer's pleadings. In my opinion he was well entitled to give such short shrift for the reasons advanced by him.

[116] Ninth line of argument. I have to some extent foreshadowed in my comments in terms of the immediately preceding paragraph my opinion relative to this line. I do not find it well founded. The pursuer in my judgment has averred factors which are relevant in supporting his claim for additional damages. In article 4 of condescendence he avers that he asserted to the first defenders his right to copyright in the drawings and despite this the first defender proceeded to copy them. Accordingly this was a deliberate and calculated infringement. Secondly he avers an element of deceit in the use of Mr Fegan in relation to the preparation of the drawings. It may be the case that this aspect of the claim for additional damages cannot be brought home against the first defender, Mr Fegan having been employed by the second defenders. However, as presently advised, looking to the whole averments this in my judgment is a relevant factor against the first defenders. Lastly there are the averments of the benefit that the first named defenders have derived from the association of the pursuer with the project (see article 6 of condescendence at page 14). Accordingly though it could be said that the averments in support of the claim for additional damages are not lengthy they are in my judgment when tested in terms of Jamieson sufficient. Accordingly I reject the first named defenders argument under this head.

[117] Finally as regards the first defenders last line of argument the pursuer's are in my judgment prima facie not seeking the same damages twice. They aver a breach of copyright by the first named defenders and a separate though connected breach of copyright by the second named defenders. They are entitled to recover damages from each in relation to these breaches. It is not a proper reading of their position that they are seeking the same damages twice.

Decision
[118] For the foregoing reasons I clearly preferred the submissions on behalf of the pursuer on all of the disputed issues.

[119] I accordingly refuse the motion for the first named defenders to dismiss the action in so far as directed against them and accordingly repel the first defenders first and second pleas in law; of consent, I also repel the pursuer's fourth plea in law and of consent reserve the first defenders sixth plea in law.