Case Nos: IL-2023-000080 and IL-2024-000038 - [2025] EWHC 2561 (Ch)

RMG claims additional damages pursuant to s.97(2) of the 1988 Act, which subsection applies equally to database right infringement as it does to copyright infringement (see reg.23 of the Database Regulations). RMG also pleaded that damages should be assessed in accordance with reg.3 of the Intellectual Property (Enforcement, etc.) Regulations 2006. Argument was directed to additional damages.

The defendants submitted that the question of additional damages should be left to an inquiry in the event that there is one. RMG said that the principle of whether additional damages should be awarded is suitable for decision now, with quantum to be resolved later. I think that in the present case it may save time overall if I decide the point of principle now.

Section 97(2) provides:

In Nottinghamshire Healthcare NHS Trust v Newsgroup Newspapers Limited [2002] RPC 49 Pumfrey J held that additional damages are apt where the infringement was either deliberate, reckless or careless in the sense of a ‘couldn’t care less’ attitude on the part of the infringer (at [52]).

In Phonographic Performance Limited v Ellis [2018] EWCA Civ 2812 Lewison LJ held that additional damages may be wholly or partly punitive (at [37]) and may serve the purpose of being a deterrent (at [38]), though a particularly egregious award of additional damages would amount to an abuse of rights (at [40]-[42]).

In my view the infringement in the present case fell into one of the categories of deliberate, reckless or couldn’t care less. Before Mr Smith began his GetAddress enterprise he was aware that he could obtain a licence from RMG. He took the view that this would be expensive, by inference too expensive for what he had in mind. Mr Smith must have assumed that RMG was able to charge for the use of the PAF because RMG held rights in the PAF that it could use to restrain unauthorised use. He must have been aware from the terms of his agreement with IDDQD that IDDQD had taken a licence from RMG and had no reason to doubt that IDDQD had paid RMG accordingly.

As a consequence of the foregoing, Mr Smith must have known that since he had not paid RMG, he and Codeberry would probably not be authorised to exploit the PAF for the purpose of setting up a business in the marketing of a rival database and if not, this would be in breach of the rights in the PAF held by RMG. Alternatively, Mr Smith was reckless in that regard, or quite possibly he could not have cared less.

I find that RMG is entitled to an award of additional damages.