Additional damages
20.21.22.23.Mr Bowen told me that he had frequently used the VisitWales,com website as a source of images for his website – over the years he had used over 100 of them taken. He said that he had always informed VisitWales of his wish to use an image and explained why, and had always been told that he could do so without charge. On this occasion he had downloaded the Photograph, intending to inform VisitWales. But 9 months elapsed before the Photograph was put on to the live website and he forgot to go through the usual procedure. 24.Mr Price said that this was a wholly new story unsupported by any documents, despite the very large number that had been generated in the proceedings. He invited me to disbelieve Mr Bowen. Mr Bowen, he argued, had demonstrated a ‘couldn’t care less’ attitude (see Nottingham Healthcare NHS Trust v News Group Newspapers Ltd [2002] R.P.C. 49) and there had been a deliberate and calculated infringement (see Ravenscroft v Herbert [1980] R.P.C. 193). 25.I find it hard to be sure whether or not Mr Bowen’s new version of events is accurate. However, s.97(2)(b) of the Act requires me to take into account all the circumstances, not just flagrancy (if there was any). Mr Bowen only used the Photograph for 17 days, removed it from the website as soon as he received notice from Mr Price and almost certainly gained no benefit from the infringement. Subject to one further point, on those facts I do not believe that an award of additional damages would be appropriate. 26.27.I have come to the view, for different reasons to those given by the District Judge, that he was right to decline to award additional damages.