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

The defendants submit that the IDDQD’s standard terms in 2015 and 2018 other than the RMG EUT afforded them a licence. They do not say that they had a licence under the 2021 terms but argue that the amendments made by IDDQD in 2021 to their standard terms were never incorporated into the licence which had been granted to Mr Smith.

IDDQD made the initial point that IDDQD terminated the account held in Mr Smith’s name on 27 February 2023, as was common ground. It was not contended by the defendants that the acts done after that date could have been licensed under that agreement.

I find the defendants’ argument in their draft skeleton regarding the 2015 terms hard to follow. The terms identify no positive right granted to the licensee, but the defendants argue that the terms do not restrict the use of data obtained by Mr Smith from IDDQD. It appears to be a submission that the express terms of the 2015 licence gave Mr Smith unrestricted right to use data provided by IDDQD. They plainly do not. It seems to me that the only way that such an argument could have been presented would have been by advancing a case based on an implied licence of unrestricted licence. No such case was pleaded or argued.

The 2015 terms included the following:

It was not in dispute that despite the lack of an express term granting the right to use Ideal Postcodes data, there was such a right. I agree with the apparent position of all parties that there was an implied term to that effect. But the right granted was not unrestricted. It was limited by reference to the RMG EUT, with which the licensee was obliged to comply.

In May 2018 there was a major overhaul of IDDQD’s terms. Nonetheless the requirement that data obtained through the service provided by IDDQD had to be used in accordance with the RMG EUT remained. The reference to change of terms now read:

The amended terms included the grant of a positive right:

The defendants argued that their use of the GBR Database went no further than that positive right. This was an assertion unsupported by any submissions on the meaning of ‘retrieve’, ‘validate’ and ‘cleanse’.

IDDQD argued that ‘retrieve’ means viewing information on screen and downloading it as a file. I agree, since viewing will require temporary downloading. IDDQD said that ‘validate’ means checking data in a database to ensure it is accurate. I agree. IDDQD interpreted ‘cleanse’ to mean using data to identify, correct or remove errors. Again I agree, with the clarification that ‘addressing information’ is being cleansed and to make any commercial sense of the licence, this will have been addresses held by the licensee. In other words, the licence permitted the licensee to check the correctness of the data the licensee already held.

IDDQD submitted that the licence did not permit the copying of data to another database to add additional postcodes or addresses or to replace incorrect postcodes or addresses. I disagree. There would be little point in using the GBR Database to discover that a postcode or other part of an address held was wrong, unless there was a further right to correct it by copying the correct address. I think it is arguable that the right to ‘validate’ and ‘cleanse’ in neither case includes the right to introduce addresses that did not feature in the licensee’s data. That was not the subject of argument and I leave it to one side.

The defendants submitted that neither the 2018 nor the 2021 terms applied to Mr Smith because neither set of amendments to IDDQD’s standard terms impinged on its agreement with Mr Smith. No basis of this submission was put forward, it was just an assertion. IDDQD drew my attention to the following passage in the judgment of Andrews LJ in Parker-Grennan v Camelot UK Lotteries Ltd [2024] EWCA Civ 185:

Mr Blanchard’s evidence was that when IDDQD’s terms were updated each customer was presented with a notification at the top left of their account page on the Ideal Postcodes website stating ‘Please review and accept updated terms of use’. Both the Lee Smith and Colin Berry accounts were pay-as-you-go. For that type of account, any attempt to purchase new credits for retrieving data redirected the customer to the account authorisation page and this message:

Further down the page read (original underlining):

If the new terms were not accepted, once the customer’s account balance reached zero the customer would be prevented from using Ideal Postcodes further.

In cross-examination Mr Smith agreed that he read the updated 2018 terms and that it would have been reasonable to check them to make sure that he was permitted to do what he was doing. In respect of the 2021 terms he said that he believed there was a box which, if clicked, allowed use of a credit card on file without having to go to IDDQD’s website. This was not only contrary to Mr Blanchard’s written evidence but it was not put to Mr Blanchard when Mr Blanchard gave oral evidence. I make allowances for the fact that the cross-examiner was Mr Smith who has no legal training. Nonetheless I found Mr Smith’s story about a box to be clicked to enable short-cut payment unconvincing, with the air of a wishful recollection. I accept Mr Blanchard’s evidence.

I find that IDDQD did what was reasonably sufficient to bring the amendments to their terms in 2018 and 2021 to the attention of users of their service. Mr Smith accepted that there was nothing in either sets of terms that was onerous or unusual. I further find that the updated terms were incorporated into the agreement with Mr Smith. The exact dates of incorporation were not in dispute. Mr Smith’s account was opened on 1 November 2015. The terms of his agreement with IDDQD were amended on 16 June 2018 and 23 June 2021.

IDDQD’s standard terms were amended again in 2022 but it was not part of the IDDQD’s case that Mr Smith agreed to these in relation to the account opened under his name.

The account opened by Mr Smith on 24 January 2018 under the name Colin Berry was initially governed by the 2015 terms and it was agreed that from 19 November 2022 the 2022 terms applied.

Neither the 2015, 2018, 2021 nor the 2022 terms provided Mr Smith with a licence to use any part of the GBR Database to create and market a database in competition with IDDQD.

I have found that the RMG EUT did not afford a licence to the defendants to carry out the acts complained of.