Husband and wife pursued ancillary relief applications, but an issue arose as to copyright, and it was transferred to Chancery. W kept a personal diary. H read it after W said she wanted a divorce. He read passages and had extracts photocopied before returning it. He still retained two pairs of copies and a further copy of one page. W sought delivery up of the retained copies, as being made in breach of copyright and of confidence. The application was for summary judgment on the basis of affidavit evidence only.
Held: They had been relevant to the matrimonial proceedings. H denied that it was confidential, and submitted that an order for delivery up requires some breach of confidence to be shown. Lloyd J said: ‘It seems to me that the relevance of the need to specify what the information which is confidential is and accordingly be protected may arise in relation to a situation of this kind, as it certainly does in a commercial situation. But it is relevant mainly and perhaps only, to a claim for an injunction. To order delivery up, is concerned, the court must be satisfied that the material includes something which is confidential, but it would be a defence that on the same page there is also a statement of something which is in the public domain’. The pages were confidential. H submited that the confidentiality would justify an order if the material might later be put in evidence. Lloyd J declined summarily to order summary delivery up for copyright breach since ‘copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings’. The evidence justified proceeding on the basis that when the photocopies were made W had already said that she wanted the divorce and that he foresaw that they might be useful as evidence. The judge did not decide what the true effect of section 45 was. He said: ‘I regard it as sufficiently well arguable that it is not limited to copies made after the issue of the appropriate originating process, and accordingly that whether a copy made before that moment is made for the purposes of proceedings which are in fact commenced thereafter is to be determined by an objective assessment, which no doubt would have regard to the evidence of the copier but would not be limited to that’. On the claim in breach of confidence, Lloyd J declined to order delivery. The jurisdiction was equitable. W was required to lodge all copies which were in his custody power or possession with his solicitors subject to an undertaking that they were only used for the purposes of proceedings pending between the parties: ‘It seems to me that . . . . though the applicant is not entitled to have the documents back as of right, she is entitled to have them safeguarded and their use controlled in this way’.
Judges:
Lloyd J
Citations:
Unreported, 31 July 2000
Statutes:
Copyright Designs and Patents Act 1988 45(1)
Jurisdiction:
England and Wales
Cited by:
Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 30 June 2022; Ref: scu.270365