Point v Focus: No focus and no point?

January 29, 2007

The Court of Appeal case is Point Solutions Ltd v Focus Business Solutions Ltd [2006] EWCA Civ 14.


The dispute between the two software houses remains unresolved after the Court of Appeal refused to rule that Point definitely did not copy the Focus software. Point had worked on the Focus software under an outsourcing arrangement before launching its competitor. It must be made clear however that the ruling does not mean that copying did take place, though.


Point had pulled out of an agreed mediation process in order to seek the court order declaring that they had not copied. Just to make life slightly more awkward for the judges concerned, the court had to make its decision without analysing any of the software involved. As the judge put it in the first instance judgment ([2005] EWHC 3096 (Ch)): ‘I am being asked to make a declaration that software, which I have not seen, does not infringe any copyright in another software product which I have not seen and in respect of which copyright has not been demonstrated’. She declined to grant that relief and dismissed the action with costs on an indemnity basis. Permission to appeal was granted by Lord Justice Lloyd on 16 February 2006.


Lord Justice Chadwick, giving the lead judgment in the case, concluded his judgment with the following, remarkably restrained, words (at [47]):

It is difficult to avoid the conclusion that the outcome of these proceedings is unsatisfactory; and that the outcome would have been equally unsatisfactory had the decision gone the other way. But that is the effect of the way in which both parties chose to conduct the proceedings. They chose to deny the judge the assistance of the expert’s report which Master Bragge had directed. They chose to put the judge in the position where the only question which she could decide was whether Point had established on the balance of probabilities, by the evidence which it adduced, that it had developed the Acuo software without copying. Point accepted that burden. It might be said that it failed to discharge that burden because it failed to appreciate that there was a lacuna in that evidence. But to say that would be to speculate. There may have been sound reasons for not adducing evidence from those who had worked on the development in India. For whatever reason – whether through incompetence or design – Point did not fill the lacuna. Had it done so, Focus might well have been shut out from bringing future infringement proceedings. But, again, that would have been the effect of the way in which it was content for the proceedings to be conducted. For my part, I think that a judge should be slow to allow proceedings of this nature to be brought to trial in circumstances where the parties have chosen – for tactical and forensic reasons – to disregard directions already given for the provision of the expert assistance which is needed if the court is to decide the real question in dispute.