Criminal Employment Trade


Criminal



Local authority seeking anti-social behaviour order against child in its care - potential conflict of interest - measures to be taken to guard against conflicts when deciding to apply for order



R (M) v Sheffield Magistrates' Court: QB (Mr Justice Newman): 27 July 2004



The applicant was a child in the care of the local authority. The authority sought an interim anti-social behaviour order (ASBO) against him which was granted without notice. He applied for judicial review by his litigation friend of the order.


Anesh Pema (instructed by Mundy Coutts-Wood, Sheffield) for the applicant; Simon Vaughan (instructed by Mark Webster, Sheffield) for the interested party; the justices did not appear and were not represented.


Held, granting the application, that under section 1 of the Crime and Disorder Act 1998, a local authority was a relevant authority with power to make an application for an ASBO; that under section 22 of the Children Act 1989, an authority had a duty to 'safeguard and promote the welfare of the child in its care'; that the 'welfare' might or might not be furthered by the making of an ASBO but the interests of the child in the decision-making process and in the court process had to be protected; that despite the obvious potential for a conflict of interest to arise, the issue had, so far as the court had been informed, never been addressed; that it had not received attention in any Home Office guidance to local authorities; and that, accordingly, measures should be taken to safeguard the child's rights.



Employment



Employed director - director obliged to disclose own misconduct to company - entitlement to arrears of salary up to date of dismissal



Item Software (UK) Ltd v Fassihi: CA (Lord Justice Mummery, Lady Justice Arden and Mr Justice Holman): 30 September 2004


The defendant was a salaried director of the claimant company. When the claimant decided to renegotiate its contract with its main customer, the defendant secretly approached the customer proposing to divert the contract to a company established for his own benefit. The customer terminated the contract and the claimant discovered the defendant's misconduct. He was summarily dismissed on 26 June 2000.



The claimant brought proceedings against the defendant alleging that he was in breach of duty as a director and employee in seeking to divert the contract to his own company. The defendant counterclaimed for wrongful dismissal and for arrears of salary for the period of 1 to 26 June 2000. The deputy judge [2003] 2 BCLC 1, found that, although the failure of negotiations had not been caused by the defendant's misconduct, the defendant was in breach of duty in failing to disclose his own wrongdoing, and he dismissed the defendant's counterclaim. The defendant appealed on the issues of disclosure and arrears of salary.



Nigel Dougherty (instructed by the Bar Pro Bono Unit) for the defendant; Ben Quiney (instructed by Placidi & Co, Southampton) for the claimant.



Held, allowing the appeal in part, that a director did not owe a separate and independent duty to disclose his own misconduct, but he was under a fundamental duty to act in the best interests of the company; that the defendant could not have fulfilled that duty except by telling the claimant about his setting up a new company to acquire the contract for himself; but that section 2 of the Apportionment Act 1870 applied to enable the defendant to claim his salary referable to the period 1 to 26 June 2000.



Trade



Defendant making anti copy-protection device for use in computer games consoles - device containing copied digital data for very short time constituting 'article' containing 'infringing copy' - copyright owners' rights breached



Kabushiki Kaisha Sony Computer Entertainment Inc and others v Ball and others: ChD (Mr Justice Laddie): 19 July 2004


The claimants were part of a group which designed and manufactured games consoles and the games to be played on them which contained 'copy-protection systems' designed to prevent the copying and parallel importation of their games.



The defendants were involved in the manufacture and sale of an electronic chip that could be fitted into the console enabling it to play unauthorised copies of games and games from regions foreign to the console. The claimants alleged that the defendants' activities breached their rights under section 296 of the Copyright, Designs and Patents Act 1988, prior to amendment, and the new section 296 after amendment, which safeguarded a copyright owner's rights against makers of 'infringing copies', defined as 'articles' pursuant to section 27 of the Act.



The first defendant contended that, although the silicon chips were articles, where the digital material was copied into a random access memory (RAM) chip, as happened in the console, the RAM containing the copy of the digital data was too short-lived to be considered as tangible. The claimants applied for summary judgment against the first defendant under part 24 of the Civil Procedure Rules 1998.



James Mellor (instructed by Bristows, London) for the claimants; Matthew Kime (instructed by Sarjeant & Sheppard, Reading) for the first defendant; the other defendants did not appear and were not represented.



Held, granting the application in part, that the silicon RAM chip was always an 'article', and it was an infringing article while it contained the digital data even though that was only for a short time; that there was nothing in the legislation which suggested that an object containing a copy of a copyrighted work, even if only ephemerally, was for that reason not to be treated as an article; that an article became an infringing article because of the manner in which it was made; and that it followed that that part of the claim was made out.