The Instant - Case Study Example

The Instant Case: Analysis Introduction In the legal system today, as in the legal system in the past, a petitioner is en d to a variety of remedies. Some of these remedies are legal, in that they are prescribed by statute or by common law. Some are equitable, which means that they are obtainable because it is the fair thing to do. Generally, remedies which are available during the interim of the case are equitable remedies. There are less evidential burdens for these remedies, and are obtained quicker, because they are necessary to stop the defendant from doing something – disposing of assets, leaving the country, selling things illegally, etc. In the instant case, there are equitable remedies that the Richard can pursue against John. That said, John has a possible counter-claim against Richard for breach of contract. This essay will explore each man’s claims against the other. Facts The facts are that Richard was a singer and performer, and was under exclusive contract with John. He wasnt able to use another manager for the duration of the contract, which was 10 years, and was not able to perform or release music for one year after the contract ceases. John took Richards copyright music and sold it. John also impersonated Richard on stage and TV, and started acting, using Richards name. Now, John is threatening to emigrate to China with his family. Law Anton Piller orders Among the types of interim relief that Richard may seek from the court is an order called an Anton Piller order. The Supreme Court Act 19811 gives the right to seek an injunction by interlocutory order for detention or custody of any property which might be germane to the subject matter. The right to seize property which may be property necessary to either prove the matter at hand, or, in this case, seize the illegally copied new music that Richard had made, is known as an Anton Piller order because of a case approved by the Court of Appeal.2 In an Anton Piller order, the defendant may be prohibited from dealing with the materials which are the subject of the action; may have to disclose the details regarding suppliers and customers, and may be forced to give the materials to the plaintiff; may be forced to let the plaintiff enter his premises to search for more items; and may be forced to make an affidavit regarding the items.3 The plaintiff must first show upon what facts the Anton Piller order is based, and cannot use the order as a “fishing expedition.”4 In order for the court to order an Anton Piller, the plaintiff must have a very strong prima facie case against the defendant on the merits; that the actual or potential damage to the plaintiff would be very serious; and that, without the order, the material might be destroyed.5 If the defendant is served with an Anton Piller order, he must comply, or risk contempt of court, unless he discharges the order within 24 hours.6 Freezing Assets Related to the Anton Piller order is freezing of assets. With the freezing of assets, the plaintiff may have assets of the defendant frozen if there is is the danger that the defendant would dispose of them.7 This is considered an interlocutory injunction, like an Anton Pller order, and can be issued after a hearing in which the court does not have all the evidence, and the evidence is not tested by cross-examinations.8 Ne Exeat Regno orders Further, another aspect of an interlocutory injunction that can be pursued would be the Ne Exeat Regno.9 This may be used if the defendant is threatening to leave the country.10 These may be obtained if Section 6 of the Debtors Act 1869 are satisfied. Section 6 of this Act states that if 1) that the plaintiff proves to the court that he or she has a cause of action against the defendant for more than fifty pounds; 2) that there is probable cause that the defendant is about to leave England; 3) that the defendant would have been liable to arrest; and 4) that if the defendant leaves the country, the plaintiff will be materially prejudiced, the plaintiff may obtain an Ne Exeat Regno order against the defendant.11 However, the Ne Exeat Regno order may not be ordered against the defendant, if the purpose of the order is to support an injunction, not to pursue the main court action. If the purpose of an order is to support an injunction, then the proper remedy is to have the defendant surrender his or her passport, which means that the person may wander freely around the UK, but may not leave the country.12 Covenants Not to Compete Another pertinent area of law is the area regarding restrictive covenants. They are considered to be a restraint on competition, so courts will approach restrictive covenants with great care.13 Courts will only enforce them if these are deemed to have reasonable limitations on geographical area and time.14 Generally, the court will not enforce a covenant not to compete if it exceeds one year.15 De Francesco v. Barnum16 established that certain terms might be considered too onerous – for instance, restrictions on whether or not a person is maintained by another, and if one can accept other work. In the case of Barnum, it was too restrictive to state that the plaintiff could only be maintained by Barnum. Copyright Infringement Copyrights in the UK are protected by the Copyright, Designs and Patents Act 1988. This establishes that copyright in most works lasts until 70 years after the death of the creator if the creator is known, or 70 years after publication if the creator is not known.17 Damages for copyright infringement includes injunctions and accounts of profits.18 There may also be criminal penalties.19 Passing Off Passing off is often associated with trademark law. There are three elements which must be fulfilled.20 These elements are 1) goodwill owned by a trader; 2) misrepresentation; 3) damage to goodwill.21 Applying Facts to Law Richard has clear remedies under equity and law. Under an Anton Piller injunction, Richard would have the right to seize the illegally made CDs that are in the possession of John, as well as demand that John make an accounting of the profits that he has attained through selling these CDs. He would also be ordered to cease and desist from selling anymore of these CDs, videos and mp3s. Johns assets may also be frozen, so that Richard would be able to attain what is owed to him through freezing his bank accounts and other assets that may be used to pay Richard. Since there are clear copyright infringements, these remedies will be relatively easy to obtain. Also, Richard may obtain an ne exeat regno order, which means that John will be prohibited from emigrating to China. Since John is threatening to leave the country, and Richard has a cause of action against him for more than 50 pounds, and Richard would be materially prejudiced if John left the country (Richard would have to bring John back from China if he left, and there would necessarily be complications with this), then Richard has a clear case that he should prohibit John from leaving the UK. Less clear if Richard has a case against John for passing off. This mostly deals with trademark law. However, it could apply here, since John, in the act of impersonating Richard, is diluting Richards brand, therefore he is damaging Richards goodwill. There also must be a misrepresentation, which is clear from the facts that this may be proved. Richard may have issues with violating his non-compete agreement. However, there is indication that the terms of the agreement are too onerous. For one thing, he is not allowed to perform or release his own music for one year after the contract is over. There is a non-compete clause that states that one year is too long of a time for a standard non-compete clause. Moreover, it does not seem reasonable that Richard would have to cease and desist from releasing his own music. Usually non-compete clauses are regarding company assets, such as customers – for instance, under a traditional non-compete clause, A may agree not to compete with B by using the customer database, or agree not to compete within a certain region. In other words, in the traditional non-compete clause, the employee is prohibited from using information that belongs to the employer. Here, Richard is being prohibited from using his own resources that he has come by with his own talent. If a court is reluctant to enforce a non-compete clause regarding employer information that an employee uses, they really will not enforce a clause that prohibits somebody from using their own resources and talent for gain. And the ten year part of the contract, in which Richard is prohibited from using another manager during this ten years, would probably also be deemed invalid for the same reason – its terms are not reasonable. Besides, Richard didnt hire another manager – he was his own manager. Therefore, there should not be a problem with the potential breach of contract suit that John might bring against Richard. John was also using personal confidential information regarding Richards contacts to forward his own business. This also falls under the non-compete clause, as using customer information is usually prohibited for a certain period of time. That said, there was not any prohibition on doing this that was in writing between the two men, so John might be allowed to use this personal information to forward his own business. Conclusion Richard has several injunctions and permanent causes of actions that he might bring against John. The injunctive relief that may be had is pursued before the actual case is litigated or heard by the court, and it means that the plaintiff, Richard in this case, may stop John from doing several things. Generally, these orders are heard ex parte, which means that there is a minimal amount of evidence that needs to be brought in front of the judge, and there is not a cross-examination. The Anton Piller order is one such injunctive order which means that John would have to stop selling the illegal CDs, and must give an accounting to Richard about the profits that he has made. Johns assets may be seized, so that he does not deplete his assets before he has a chance to pay Richard. And Richard may ensure that John does not emigrate to China, by showing that he, Richard, would be prejudiced if John did so. In the end, in the actual case, Richard should have relief from John for copyright infringement, and John would have to pay restitution. Richard also probably will not have to pay John for breach of contract, although this is likely a counterclaim that John will attempt to bring before the court. Richard might also prevail on the tort of passing off, by showing that John is ruining Richards goodwill when he impersonates Richard on stage. Bibliography Supreme Court Act 1981 Anton Piller KG v. Manufacturing Processes Ltd. [1976] 1 All E.R. 779. Chappell v. United Kingdom, Application No. 10461/83, ECHR. Hytrac v. Conversion Ltd. v. Conveyors International Ltd. [1982] 3 All E.R. 415. Hallmark Cards Inc. v. Image Arts Ltd. [1977] F.S.R. 153. Booker McConnell Place v. Plascow [1985] R.P.C. 425. Oaktree Financial Services v. Stephen Higham [2004] EWHS 2098. The Bank v,. A Ltd., Mr. B & C. Ltd. Felton v. Callis [1969] 1 QB 200. Al Nahkel for Contracting Ltd. v. Lowe [1869] QB 235. Debtors Act 1869 § 6 Allied Arab Bank Ltd. v. Hajjar [1988] QB787. Office Angels Ltd. v. Rainer Thomas and OConner [1999] IRLR 214. Alger v. Thacher, 36 Mass. 51 (1837). Pat Systems v. Neilly [2012] EWHC 2609. De Francesco v. Barnum (1890) 45 Ch D 430 Copyright, Designs and Patents Act 1988. Microsoft Corp. v. Plato Technology Ltd. [1999] EWCA Civ 1854. Reckitt & Colemant Products Ltd. v. Borden, Inc. [1990] 1 All E.R. 873. Erven Warnick BV v. J. Townend & Sons (Hull) Ltd. [1979] AC 731. Read More