EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Drummond Young Lord Osborne	[2012] CSIH 44 A537/09 OPINION OF THE COURT delivered by LADY PATON in the cause WILLIAM FORBES Pursuer and reclaimer; against STRATHCLYDE PARTNERSHIP FOR TRANSPORT First defender and respondent: and TRANSPORT SCOTLAND Second defender and respondent; _______

Pursuer and reclaimer: Party

Defenders and respondents: Currie QC, Sheldon; Maclay Murray & Spens LLP

2 May 2012

Introduction

[1] The pursuer is a chartered surveyor. He has a long-standing interest in the provision of a high quality rail transport link from Glasgow City Centre to Glasgow International Airport. Since the early 1990s, he has visited cities with airport links and noted their design features. Over the years he prepared plans, drawings and a model of a proposed rail-link. He personally delivered his drawings to Strathclyde Passenger Transport Executive (SPTE), now known as Strathclyde Partnership for Transport (SPT). He had some correspondence with SPT. He also placed photographs of his model on the web. His aim was to assist SPT to achieve the best possible link.

[2] The pursuer advised this court that SPT initially showed little interest in his plans and drawings. They carried out their own work commissioning companies and firms to provide designs, layouts and studies to produce a scheme known as Glasgow Airport Rail Link (GARL). However according to the pursuer, SPT came under some pressure when the GARL Bill was to be presented to the Scottish Parliament. The pursuer stated that SPT realised that their plans were not of the required standard. They had "taken a shortcut" by copying certain important features from his designs and layouts. They had thus infringed his copyright, and had profited as a result.

[3] The pursuer raised this action in the Court of Session for breach of copyright, seeking inter alia payment of damages. The pursuer chose to represent himself.

[4] After a debate in the Outer House, the pursuer's action was dismissed as irrelevant. He has now brought the present reclaiming motion.

Relevancy and specification

[5] Parties were agreed that the pursuer's averments relating to the copying complained of were contained in Article 14 of Condescendence as follows:

"14. The pursuer accepts that, in a claim of copyright infringement, it is incumbent upon him to show what, if anything, has been copied. The first step in this process is a visual comparison and to assist the Court, the Pursuer has prepared a composite copy of the plans presented by the First Defender to Parliament in October 2005 as the definitive plan of the GARL scheme. This is shown in Production 6(62) and bears direct comparison with the Pursuer's plan of 2001 (Production 6(1g)) although the Pursuer concedes that the GARL plan may alternatively be a copy of the Pursuer's model (Production 6(1j)), photographs of which appeared on the Pursuer's web site before the First Defender published the GARL drawings, or indeed copied from the Pursuer's early web sites. Photographs of the Pursuer's model (Production 6(1j)) and extracts of the early web sites (Productions 6(1k) and 6(1l)) are lodged in process and will be referred to for their terms which are incorporated herein brevitatis causa. Ignoring similarities which may be commonplace there is clear copying of the Pursuer's designs for the location of the Airport Station, the design of the station including the elevated structure, canopy, track and platform layout and arrangement of the station building to the east of the entire structure. Both designs incorporate an elevated pedestrian link to the main terminal which includes travelators. This is further demonstrated by the Pursuer's plan for the Airport Station first published in 2002 (Production 6(1m)) being compared to that of the First Defender as included in their introduction of the GARL Bill (Production 6(64), Page 7). The causal connection is clear; the First Defender had prior detailed knowledge of the Works; they were obliged to present the best design solution; they were under pressure to perform and on realising their own plan was inferior they made the change to arbitrarily copy the Pursuer's Works. They admit that their plan for the GARL Airport Station location is not original and they took the decision to change despite their own engineer's contrary recommendation as further demonstrated by all of the final GARL drawings being dated after the SPT's decision to change the Airport Station location. The relevant drawings as presented by the SPT in support of the GARL Bill are lodged in process as Pursuer's Productions 6(64) and will be referred to for their terms which are incorporated herein brevitatis causa."

Submissions for the pursuer and reclaimer

[6] The pursuer's complaint was not that his "idea" had been taken and used, but that the defenders had copied certain of his design features, including the location of the station (to the south of the car‑park, and not to the north); the design of the station including an elevated structure; the canopy; the track (twin tracks, rather than single track); the extended platform length; the platform layout (not an island platform, but two platforms, one on each side of the track); and a pedestrian link to the main terminal with travelators. Drawings referred to in Article 14 were incorporated into the pleadings brevitatis causa. The pursuer submitted that it was clear from Article 14 that there was an objective similarity between the pursuer's design elements and what appeared in the defenders' drawings. Significantly, mistakes and idiosyncrasies appearing in the pursuer's work also appeared in the defenders' designs and plans. There was also a causal connection, in that the defenders had, over the years, full access to his drawings, plans, model, photographs, and website.

[7] The pursuer contended that the Lord Ordinary had examined only four of the drawings, when there were about 100 to be examined. Furthermore, the Lord Ordinary's opinion, from paragraph [15] onwards, contained errors: for example, an assumption that the appellant claimed the route of the railway as a copyright design feature, when he did not (as the physical layout had limitations, and any skilled engineer would reach the same route as had the pursuer); and a statement that the defenders' drawings contained no canopy, when they did. The Lord Ordinary was also wrong to say that the pursuer was complaining that the defenders had copied his ideas: they had in fact copied his designs, although it had to be conceded that the fact that the pursuer's designs had evolved over a period of years made matters less easy. The Lord Ordinary had not considered the aspect of substantiality: it would not matter if the defenders copied only a small part of the pursuer's work: cf dicta of Lord Scott at pages 2430 to 2432 of Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416. Nor was exact copying required for an infringement. The Lord Ordinary appeared to accept that something had been copied from the pursuer's work, and had failed to give proper consideration to causal connection, as the defenders had clearly been in receipt of the pursuer's works over a long period. There was accordingly a case to go to proof.

[8] The pursuer referred to Jamieson v Jamieson 1952 SC (HL) 44; Mitchell v Glasgow City Council 2009 SC(HL)21; Francis Day v Hunter & Bron [1963] 1 Ch 587; Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416, Lord Hoffmann at page 2422; section 16 of the Copyright Designs and Patents Act 1988; Donoghue v Allied Newspapers Ltd [1938] 1 Ch 106; IPC Media Ltd v Highbury-Leisure Publishing Ltd [2005] FSR 434, at page 441 et seq; Cala Homes (South) Ltd v McAlpine Homes East Ltd [1995] EWHC 7 (Ch) at inter alia page 16. He submitted that his averments in the present case disclosed objective similarity and causal connection, and were sufficient for a proof before answer. The Lord Ordinary's interlocutor dismissing the action should be recalled, and the case permitted to proceed.

[9] As for the pursuer's averments in Article 27 concerning copying by the defenders in other contexts, the pursuer submitted that this could be a relevant consideration in an infringement of copyright case: cf Designers Guild Ltd at page 2419. It was "similar fact evidence" that the defenders were engaged in similar acts of copying in another context.

Submissions for the defenders and respondents

[10] Senior counsel for the defenders submitted that copyright protected not the idea, but the expression of it. The pursuer had to identify what design features(s) in his drawings he claimed copyright for. To achieve a relevant case, the pursuer had to make averments about an objective similarity between the way in which the pursuer had expressed his ideas, on the one hand, and the way in which the defenders had expressed theirs, on the other hand. Article 14 of Condescendence did not do so. It contained no notice of the features or form into which the pursuer had transposed his ideas, and how any design feature adopted by the defenders in their drawings was objectively similar. Reference was made to Donoghue v Allied Newspapers Ltd [1938] 1 Ch 106, at pages 109-110; Francis Day & Hunter Ltd v Bron [1963] 1 Ch 587, at page 614. The reclaiming motion should be refused, and the interlocutor of the Lord Ordinary adhered to.

Discussion: relevancy and specification

[11] In Donoghue v Allied Newspapers Ltd [1938] 1 Ch 106 at pages 109-110, Farwell J said:

"... It is necessary, in considering whether the plaintiff is the owner or part owner of the copyright in this work, to see in what it is that copyright exists under the Copyright Act of 1911. This at any rate is clear beyond all question, that there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product.

... that in which copyright exists is the particular form of language by which the information which is to be conveyed is conveyed. If the idea, however original, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture, then there is no such thing as copyright at all. It is not until it is (if I may put it in that way) reduced into writing or into some tangible form that there is any copyright, and the copyright exists in the particular form of language in which, or in the case of a picture the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or to look at it ..."

[12] In Francis Day & Hunter Ltd v Bron [1963] 1 Ch 587 at page 614, Willmer LJ said:

"... [Counsel] presented his argument in four propositions which, if I understood him correctly, may be summarised as follows: (1) In order to constitute reproduction within the meaning of the Act, there must be (a) a sufficient degree of objective similarity between the two works, and (b) some causal connection between the plaintiffs' and the defendants' work. (2) It is quite irrelevant to inquire whether the defendant was or was not consciously aware of such causal connection. (3) Where there is a substantial degree of objective similarity, this of itself will afford prima facie evidence to show that there is a causal connection between the plaintiffs' and the defendants' work; at least, it is a circumstance from which the inference may be drawn. (4) The fact that the defendant denies that he consciously copied affords some evidence to rebut the inference of causal connection arising from the objective similarity, but is in no way conclusive.

If this is the right approach (as I think it is) it becomes a simple question of fact to decide whether the degree of objective similarity proved is sufficient, in all the circumstances of the particular case, to warrant the inference that there is a causal connection between the plaintiffs' and the defendants' work. This is the way in which, as it seems to me, Wilberforce J in the present case approached the question which he had to decide. In his judgment, he directed himself as follows: 'The final question to be resolved is whether the plaintiffs' work has been copied or reproduced, and it seem to me that the answer can only be reached by a judgment of fact upon a number of composite elements: The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs' work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendants' work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant composer, and not least the quality of the defendant composer's own evidence on the presence or otherwise in his mind of the plaintiffs work.' In my judgment, that was a proper direction, against which no criticism can fairly be brought ..."

[13] Against that background we note that the pursuer accepts that copyright protects not an idea, but the expression of it. We also note that he accepts that he must establish an objective similarity between the way in which he has expressed his idea(s), and the way in which the defenders expressed theirs. Further the pursuer accepts that he must prove a causal connection between his work and any similarities in the defenders' work. We agree with the pursuer on those matters.

[14] The difficulty in this case arises from the pursuer's pleadings. In our view, his pleadings do not give fair notice of the design elements or features which he maintains have been copied by the defenders. We have reached that conclusion for the following reasons.

[15] Article 14 of Condescendence avers inter alia:

"... there is clear copying of the pursuer's designs for the location of the Airport Station, the design of the station including the elevated structure, canopy, track and platform layout and arrangement of the station building to the east of the entire structure. Both designs incorporate an elevated pedestrian link to the main terminal which includes travelators."

Those averments do not, in our opinion, give sufficient specification about the design elements said to have been copied. For example, the phrase "platform layout" gives no indication, by reference to a drawing or other written form, as to what particular design of the platform layout is said to have been copied. The word "canopy" does not indicate in what way the pursuer's canopy design has been copied. The phrase "location of the Airport Station" is more easily understandable, but nevertheless fails to give a clear indication of what precisely has been copied.

[16] It is true that some further information can be gleaned from a variety of sources other than the pleadings. For example, the pursuer in his submissions during the reclaiming motion explained that the defenders made last-minute changes which (according to the pursuer) relied upon and copied his designs. The defenders copied his design for the track, adopting the pursuer's twin tracks rather than the single track which they had originally proposed. They copied his design for the platform layout, substituting the pursuer's layout of two platforms on either side of the track in place of the one island platform originally proposed, and extending the length of the platform. Furthermore, there was a "replication of mistakes or idiosyncrasies from the pursuer's work appearing in the first defender's plans and designs" (paragraph 3.5 of the Grounds of Appeal): that in itself supported the allegation of copying. The pursuer gave an example of such replication in the course of his submissions. He said that he had realised that it had been a mistake to have an elevator walkway, as the walkway delivered passengers into the security check area. The pursuer had accordingly rectified his drawings. But the mistake remained in the defenders' designs and drawings. Another example (provided by the pursuer in Appendix XIII to the Note of Arguments) was the copying of his wording: the first defenders' design description ("the new loop requires the construction of an embankment from Paisley St James Station northwards through the industrial area") appeared to be a direct copy of the pursuer's wording ("the new spur requires the construction of an embankment from Paisley St James Station northwards through the industrial area"). The defenders' use of the word "loop" - a word used only by the pursuer in his original plans - reinforced the allegation of copying.

[17] In the course of the reclaiming motion, the pursuer referred to (i) plans prepared by him, namely the production 6(62) and 6(1g), neither of which has been adopted in the pleadings brevitatis causa; (ii) SPT's drawings prepared in support of the GARL Bill, production 6(64), adopted in the pleadings brevitatis causa; (iii) the model of the proposed rail‑link constructed by the pursuer - production 6(1j) - photographs of which, together with extracts of early web‑sites, are understood to have been lodged in process as productions 6(1k) and 6(1l) and incorporated in the pleadings brevitatis causa. However the information which can be gathered from the pursuer's submissions in court, Grounds of Appeal, Appendices, and plans, do not resolve the pursuer's pleading difficulties. In Scots law, a pursuer must focus his case clearly and succinctly in his pleadings. Where infringement of copyright is alleged, the averments must give adequate notice of the design elements said to have been copied. Article 14 of Condescendence as it stands, even with the adoption of certain plans and other items brevitatis causa, does not do so, and the pursuer is not entitled to supplement his pleadings by a free‑ranging examination of these other sources of information. Thus we agree with the Lord Ordinary that the pursuer's averments do not make out a sufficiently relevant and specific case of breach of copyright. It is perhaps of interest that the pursuer himself, in paragraph 5.2.4 of his Note of Argument, appears to acknowledge that some amendment might be required.

[18] While the Lord Ordinary went on to make some further observations in paragraphs [13] et seq of his Opinion, those observations were, in our view, superfluous, as he had already concluded that the pleadings did not disclose a sufficiently specific and relevant case. Accordingly any errors in those paragraphs criticised by the pursuer do not affect the view which we have reached.

[19] During the reclaiming motion, the pursuer was reminded of the advantages of taking legal advice, and was asked whether he wished to make a motion to amend his pleadings. Having considered those matters during an adjournment for lunch, the pursuer thanked the court for the advice about obtaining a lawyer, but indicated that he wished to continue to represent himself. He also stated that he did not wish to make a motion to amend; rather he invited the court to issue a judgment on the pleadings as they stand. In answer to questions from the bench, the pursuer confirmed that he had not sought leave to amend in the Outer House.

[20] In all the circumstances, we shall adopt the course which the pursuer invited us to take, namely to issue a judgment on the pleadings as they stand. As indicated, we agree with the Lord Ordinary's conclusion that the pursuer has not averred a sufficiently specific and relevant case. It follows that it is not necessary for us to make any ruling in relation to the averments in Article 27 of Condescendence.

Procedural aspects

[21] The pursuer also criticised certain aspects of the court procedure.

An unexpected proof

[22] In the pursuer's view, the debate appeared to develop into a proof. The Lord Ordinary studied productions, including drawings (although he examined only four out of about 100 drawings available). The Lord Ordinary asked the pursuer questions, and appeared to reach views about issues of fact. Thus the debate appeared to turn into a proof. Yet the pursuer had received no advance warning that there might be a proof, and had not brought witnesses or made preparations to conduct a proof. Accordingly he had not had an opportunity properly to present his case by leading witnesses, having productions thoroughly explored and explained, and cross‑examining the defenders' witnesses. He found it paradoxical that the Lord Ordinary should criticise the pleadings as being insufficiently specific and irrelevant, and yet should be able to reach some apparently factual conclusions on the basis of those pleadings (paragraph 5.25 of the pursuer's Note of Argument).

Changes in the revised typed version of the ex tempore judgment

[23] The Lord Ordinary delivered an ex tempore judgment in the Outer House which was duly tape-recorded, typed, and distributed to the parties. Parties were asked whether they had any revisals to suggest. The pursuer noted one or two minor matters, but did not suggest any revision. He later received a revised typed version, and realised that there were certain significant differences between the original and the revised version. After considerable investigative work on his part, including an application for a Specification of Documents, he ascertained that there had been some post‑debate communications between the defenders' agents and the Lord Ordinary's clerk, from which he had been excluded. After a hearing on the Specification of Documents on 30 August 2011, during which the Lord Ordinary (Clarke) told the defenders that full disclosure of the post‑debate correspondence must be made to the pursuer, the defenders' agents, by letter dated 2 September 2011, sent the pursuer copies of the post‑debate e-mails with a request that he advise them whether he intended to proceed with his Specification. That e‑mail correspondence is contained in the pursuer's Supplementary Appendix in this reclaiming motion.

[24] The pursuer's position before this court was that the Lord Ordinary's opinion given ex tempore was the one which should now be under review, and not the revised version. In particular, the pursuer contended that the ex tempore version contained what was in effect an admission by the defenders that they had copied the pursuer's work. The relevant e‑mail correspondence illustrated that point. Other matters appearing in the revised version, but not in the original ex tempore version, included references to Jamieson v Jamieson 1952 SC (HL) 44, about which the pursuer had not had an opportunity to comment.

Human rights

[25] The pursuer contended that the procedural defects outlined above amounted to a breach of his human rights, in particular Article 6 of the European Convention on Human Rights.

Discussion: procedural aspects

[26] We deal with each of the pursuer's criticisms in turn.

The nature of the hearing in the Outer House

[27] In a debate, the court has inter alia to examine the pursuer's written pleadings (including any productions adopted in those pleadings) in order to ascertain whether, on the averments, the pursuer might succeed - or rather, whether, on the averments, the pursuer would necessarily fail. The averments are taken at their most favourable to the pursuer and are assumed to be true. The purpose of the exercise is to avoid the time and expense involved in hearing evidence from witnesses and having productions proved, when the averments themselves (even if proved in every respect) do not disclose a sufficiently relevant and specific case in law. In the course of such a debate, it is customary for the judge to ask questions and to study productions adopted in the pleadings brevitatis causa. As the well‑known and oft‑cited authority Jamieson v Jamieson 1952 SC (HL) 44, explains at page 50:

"... an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved. The onus is on the defender who moves to have the action dismissed, and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed ..."

[28] In our view, the Lord Ordinary properly applied the Jamieson test and concluded that even if the pursuer were to prove all his averments by leading witnesses and proving productions, his action must necessarily fail. Accordingly the Lord Ordinary dismissed the action. No proof has taken place. In relation to the procedure involved in dismissing an action after a debate without having heard evidence from witnesses, we note the dicta of Lord Hope in Mitchell v Glasgow City Council cit sup. In paragraph 13, Lord Hope confirms that dismissal of an action after a debate, without hearing any evidence, does not amount to a breach of Article 6 of the European Convention on Human Rights. As he explains:

"It should be understood too that there is no incompatibility between this way of disposing of a case and the pursuer's right under article 6 of the Convention to a fair trial. This is because of the assumption that is made that the pursuer will succeed in proving all that he avers. What he can aver will depend on what he believes he can prove. He is given ample opportunity to set out the case that he seeks to make in his averments. When a court decides to dismiss a case on the ground that the pursuer's case is irrelevant it does so because, having studied those averments, it is satisfied that it is in as good a position to determine the issue of law on which the case depends as it would have been if it had heard all the evidence..."

The revised typed version of the ex tempore judgment

[29] When producing a revised typed version of an ex tempore judgment, a judge is entitled to make some alterations in the text (for example to correct grammar, or to improve the sense of what was said in court) provided that the core elements of his judgment are not altered. In the present case, the Lord Ordinary inserted an introductory paragraph [1] explaining that he was issuing a written version of his judgment as the pursuer had intimated that he wished to reclaim. The Lord Ordinary also made an explicit reference to Jamieson in paragraph [3], explaining that he had tested the relevancy and specification of the pleadings on the basis of that case. Thereafter the Lord Ordinary, in paragraphs [4] to [12], made only minor or grammatical changes. In our view therefore, the core element of the Lord Ordinary's judgment remained unchanged, namely that the pursuer's averments on record do not disclose a sufficiently relevant or specific case such that he might succeed. Put another way, the Lord Ordinary concluded that, even if the pursuer proved all of his averments, the action must necessarily fail. In later paragraphs (paragraphs [13] et seq, which we have held to be superfluous to the Lord Ordinary's conclusion) the Lord Ordinary used language which prompted the defenders' agents to seek to clarify that the defenders had made no admission of copying the pursuer's ideas or designs. That resulted in the post‑debate communications between the Lord Ordinary's clerk and the defenders' agents, without intimation to or involvement of the pursuer. In particular there were e-mails between the defenders' agents and the clerk, in which the defenders emphasised that no such admission had been made. It should be noted that the defenders' agents suggested to the clerk that the pursuer should be "copied in" to the e‑mail exchange, or that the matter should be discussed in open court, but in the event neither approach was adopted.

[30] In our view it was not acceptable to exclude the pursuer from these e‑mail exchanges. Moreover we consider that it would have been preferable to have the matter put out at a By Order hearing at which both parties could appear, hear what was being said, and, if so advised, make submissions. We have taken administrative steps in an endeavour to avoid any recurrence of what occurred in this case. However we must also consider what effect these events might have on this reclaiming motion.

[31] As discussed above, the hearing before the Lord Ordinary was a debate, not a proof. It was the pursuer's averments which were to be scrutinised for their relevancy and specification, not the defenders'. The only question at issue was whether the pursuer had succeeded in averring a sufficiently relevant and specific case of infringement of copyright. In that context, any wording adopted by the Lord Ordinary in the superfluous part of his ex tempore judgment which might seem to suggest that copying of any sort had in fact taken place, or that there was any acceptance on the part of the defenders that copying had occurred, was without any valid basis, as the Lord Ordinary had not heard evidence or submissions on that crucial issue, and was simply not in a position to reach any view about whether copying (or an admission of copying) had, or had not, occurred. In those circumstances, we accept that it was appropriate for the defenders' agents to question any such wording as they did, and to express concern about it. However as already indicated, we do not accept that the manner in which this issue was followed up after the debate was either proper or fair. Nevertheless, having carefully considered all the papers, including the pleadings, the Lord Ordinary's original ex tempore judgment, his subsequent revised judgment, the Grounds of Appeal, the Note of Argument, the Appendices, the plans, the submissions made to us, and all the circumstances of the case, we are satisfied that the Lord Ordinary did not err in his assessment of the fundamental or primary issue to which the debate was directed, namely whether the pursuer had succeeded in averring a sufficiently specific and relevant case. We have also concluded that the core element of the Lord Ordinary's judgment was not altered by any clarification made in response to the defenders' concerns.

Human rights

[32] In the result we are not persuaded that there has been any breach of the pursuer's human rights, in particular Article 6 of the ECHR.

Decision

[33] For the reasons given above, we refuse the reclaiming motion, and adhere to the interlocutor of the Lord Ordinary.