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When it rains it pours

Written by Muhammed Poswall on 12 July 2009

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Cembrit Blunn Ltd & Dansk Holding v Apex Roofing Services LLP & Roy Alexander Leader

The Claimants were two companies specializing in the production and sale of fibre cement roof slates. Between 2000 and 2003 Cembrit supplied Zeeland slates to Apex for installation at two sites. Apex began to notice that the slates began to curl up resulting in the replacement of many roof tiles. As such the Defendants contended that the roof slates were not of satisfactory quality as implied by s14 (2) of the Sales of Goods Act 1979.

It was during February 2004 that a letter discussing the settlement of the claim was passed between Mr Karl Jorgensen, Executive Vice President of Dansk to the Managing Director and Sale Director of Cembrit, Mr Mark Fisher and Mr David Bailey. Having received complaints from Apex, Cembrit UK instructed Mr Richard Cook, a self employed building consultant, to produce a report on the matter. He was provided with the letter Mr Jorgensen had written, as well as photographs and internal tests carried out by Dansk. Mr Cook's contract was terminated as he failed to produce the report requested by Cembrit and he was subsequently approached by Mr Leader, a member of Apex, for his opinion regarding the dispute. It was during this meeting the Mr Cook passed the letter on to Mr Leader. Mr Leader read the document which he then gave to his solicitors.

Following circulations by Apex of the letter, a claim was issued in July 2005 for breach of copyright and a misuse of confidential information. The Claimants also sort a disclosure of the source that had provided Apex with the letter and an application was filed for a restraint on the circulation of the letter pending trial. The High Court had to consider three issues:

Were the slates of satisfactory quality?

Was the letter a matter of copyright law and should it be protected by the law of confidential information?

Should the defendants have restricted the distribution of the letter and should they have identified the source?

The High Court held that the roof tiles were not of satisfactory quality and the curling was due to an inherent characteristic of the roof tiles. With regards to the letter, for it to benefit from literary copyright it needed to be original, there needed to be more than a minimal effort in creation of the work and the work needed to be recorded. Justice Kitchin concluded copyright protection did apply to this letter.

With regards to a breach of confidential information three key questions need to be answered:

Did the information have the necessary quality of confidence about it?

Was the information imparted in circumstances importing an obligation of confidence?

Was there any unauthorized use of the information?

Justice Kitchin held that the letter was a private internal communication as it included information accepting the roof slates were not for satisfactory quality, as well as a outlining a proposed solution. Both Mr Cook and Mr Leader it was held knew the document was confidential and that by passing the letter to Apex's clients, there aim was to force the Claimants to agree with their demands. As such it was held that the letter had confidential information protection and Mr Cook had no right to disclose the contents of the letter. It was held this was a breach of confidence and the Claimants were entitled to disclosure of the source.

It is essential that all confidential information provided to individuals is correctly regulated and once all work is completed that all the information provided is delivered up or destroyed. For any matters relating to confidential information just contact Michael Coyle at michael.coyle@lawdit.co.uk.

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