High Court dismisses claim for infringement of claims management database

There are times when you read a High Court judgement when you think it’s more of a soap opera than a legal analysis. But then you realise that it actually reflects business life as it operates in the real world, rather than an idealised one of perfect contracts. Because if the contracts worked, and the people all acted with integrity you probably wouldn’t end up in the High Court. 

DRSP Holdings Ltd and another v O’Connor and others [2021] EWHC 626 (Ch) is really two tales. Technically, it is a case based on the infringement of a database right, the misuse of confidential information and breach of fiduciary duty. In reality, it’s a story of a domineering accountant outplayed  by a younger man, Mr O’Connor, a former employee of the Claimant, who starts out lying to the regulator on the older man’s behalf, and then turns against him. Although actually, it is probably the accountant, Mr David Mond, who turns against Mr O’Connor. 

From surreptitiously recording meetings (which comes in for no criticism in the judgement), to marking up his own agreements, Mr O’Connor outmanoeuvred the older man every step of the way. 

One has to feel for the QC who took over the case just before trial and had to rewrite the particulars of claim and fight a case seemingly on behalf of Mr Mond who is neither a shareholder nor a director of either Claimant company but who has appointed his personal assistant as the sole shareholder only to lose on every aspect of the claim. 

The solicitors don’t come out of it that well either. They managed to mess up the trial bundle so that the Judge launched a highly critical attack on them. Until the pandemic a trial bundle would have been made up of lever arch files of all the relevant documents, both chronologically ordered and paginated. Now trials are being held virtually, and this one was conducted on Microsoft Teams, bundles need to be prepared electronically. Clearly a challenge for the parties’ solicitors in this case. 

The judgement tells you something about the claims management industry in which the parties engaged. There’s an alcoholic who was employed by the claimant but died in 2018. She did a lot of stuff on the phone, and rarely sent emails. But there were still lots of emails to be analysed, and of course, the transcriptions of those surreptitiously recorded meetings. 

The Judge deals in detail with the extent to which he believes the witnesses. He interprets a contract that wasn’t reviewed by solicitors, but was taken by Mr O’Connor from an old agreement and marked up himself. He deals with the operation of the “Slate” database which DRSP used to manage claimants and potential claimants and he also considered the application of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032). 

The Judge acknowledged that a database right subsisted in the database because there had been substantial investment in obtaining, verifying and presenting the contents and agreed there had also been extraction of a substantial part of it. But the claim was undermined by what he found from the evidence was the fact that the Claimant had actually consented to the Defendants extracting the data they did.

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