Sunday 31 January 2010

The end of superinjunctions?

LNS v Persons Unknown [2010] EWHC 119 (QB) (29 January 2010) has become a celebrated case because of the identity of LNS, although it has a bigger claim to fame as the case in which the tide seems to have turned for privacy claims. At least the threat of superinjunctions (the name coined for court orders that don't merely forbid the disclosure of certain information, but go on to forbid the disclosure of the fact that they even exist - an example of which a client of mine once had, which is about as much as I can tell you about that although I think I can observe that the claimant's solicitors were the same firm that represented LNS) has receded, even gone away entirely. The judgment also heralds a change in the attitude of the courts to prior restraints in such cases - though it is noteworthy that it ws not Eady J, widely credited with (or blamed for) the development of a law of privacy in this country, who refused the injunction.

Rather, it was Tugendhat J, co-author of Law of Privacy and the Media, who heard the case, taking a more balanced view than I think has sometimes been the case. He seems to have attached more importance to the freedom of the press than has been the case in the past, and stressed its important role in facilitating public debate. Without a free press the public would be unable to discuss important matters - such as which professional footballer is engaged in a relationship with which other professional footballer's girlfriend. As the foundation of an important point of principle, that strikes me as lacking something - it is not, to my mind, the sort of thing that the Human Rights Act should really be concerned about, but unfortunately it is the sort of thing that the press exercises its freedom to report and in which the public takes a prurient interest: putting up with rubbish like this is, perhaps, the price we pay for the important things that the media can - when they can be bothered - achieve.

I have no interest in reading the gory details of footballers' private lives in the press or providing links to them, but I did find an excellent Press Association piece about the case itself on the Sporting Life website, co-written by an old friend and Warwick Boar colleague.

That fraudulent misrep case

BSkyb Ltd & Anor v HP Enterprise Services UK Ltd & Anor (Rev 1) [2010] EWHC 86 (TCC) (26 January 2010) is now on BAILII.

Wednesday 27 January 2010

Fraudulent misrepresetation in computer contract

Out-Law reports today that BSkyB has won a claim against EDS - now owned by Hewlett-Packard, but the Sky claim pre-dates that acquisition - for fraudulent misrepresentation. In the case, in the Technology and Constrution Court, Ramsey J held that by describing its Customer Relationship Management system as 'proven leading-edge technology'EDS had gone too far. The judgment is reported to be 500 pages, the longest ever, and it isn't available on Bailii yet (and even when it is I wonder how many people will be able to find time to read it all).

Out-Law tells us that it was not proven leading-edge technology, but leaves it at that - not surprisingly, otherwise their report might have run to hundreds of pages too. EDS blamed the customer for changing its requirements too much, but that doesn't really seem relevant to the issue in the case - until the full judgment is available, there will be many aspects that don't add up very satisfactorily.

BSkyB claimed £700 million, and expects to recover £200 milion, although the contract was only worth £48 million. Of course, contracts like this usually limit the liability of the supplier, and also exclude any statements made while the deal was being negotiated by means of an 'entire agreement' clause. However, perhaps the most important thing here is that once you get into the area of fraud exclusion clauses don't work, which I imagine is why BSkyB made a fraudulent misrep claim. Interesting. I doubt there will be a flood of similar claims - but who knows? There are bound to be plenty of other dodgy claims made in similar deals.

Tuesday 5 January 2010

"Intellectual" Property

Thanks to Charles for permission to put this in my blog.

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