Madeleine Heal wins offshore jurisdiction appeal in copyright and database right action Maywall Limited v Nautech Services Ltd [2014] JCA 180

9th October 2014

Madeleine Heal was counsel assisting Jersey solicitors Collas Crill in an intellectual property action brought by Nautech Services Limited in Jersey.  In an action before the Jersey Court of Appeal, Bompas JA, giving the judgment of the court, has upheld the Royal Court’s rejection of the challenge by certain English defendants to jurisdiction of the Royal Court of Jersey over them in an action for their copyright and database right infringement, breach of confidence, unlawful means conspiracy and breach of contract.  The case is the first in Jersey under the new Intellectual Property (Unregistered Rights) (Jersey) Law 2011.  The appellate court found that each claim put forward must and did separately meet the requirements for leave to serve out, that the claim that the English defendants were joint tortfeasors in the IP infringing acts was available to Nautech, and that it is well arguable that a claim for damages against a person who has encouraged a breach of confidence is itself a claim in tort.  The judgment considers the approach to each jurisdictional gateway where there are several causes of action, particularly the first stage requirement (The Siskina [1979] AC 210, Glencore International AG v Exeter Shipping [2002] All ER (Comm.) 1, Masri v Consolidated Contractors [2009] QB 509 and the possibility for leave to be given only as regards the causes of action meeting the requirements – Seaconsar [1994] AC 438 at 439C-D.  The appellate court relied on Lord Tucker’s opinion in Korner [1951] AC 869 for the proposition that claims founded on the tort gateway involve establishing a lesser burden with regards to the merits (acts committed within the jurisdiction), but the higher burden when it came to determining the occurrence of damage within the jurisdiction.  The court held that Canada Trust does not cast any doubt on that.  The “good arguable case” test was concerned only with the elements of a claim as material for the particular gateways, not with the quality of the claim more generally.  At the second stage, the case must raise a serious issue to be tried.  Forum conveniens was not an issue in the appeal as Jersey was clearly the appropriate forum.  

To view the judgment please click here.

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