Ongoing responsibilities and activities
1. Maintain current awareness of events and activities on notified topics, including identifying and contacting suitable people to interview.2. Creation of Videos on agreed topics; quantity dependent on length and subject matter. Typically 2-4 Videos each month.”13In her pleaded Defence, which I understand was drafted by Ms Brown herself and which has a statement of truth signed by her, she says this:“9. The Defendant entered into an employment contract with the Claimant in the circumstances set out below. The Defendant puts the Claimant to proof as to the terms and conditions of the said contract.”The Defence also pleads this at para.34:“The Defendant admits that her contract the employment was terminated on December 2020.” This is para. 28 of the Defence: “The Defendant further avers that the contract of employment entered into in August 2020 was a sham contract and that the Claimant through Mr Cooper well knew that to be so. Insofar as the Claimant sets out the terms of employment the Defendant admits that those terms are set out in the contract but denies that she breached any terms of the said contract as alleged or at all, and the Claimant is put to proof of each and every allegation set out in the Particulars of Claim.” It is not clear to me what Ms Brown meant by a “sham” contract. 14The present application for summary judgment first came before me on 1 November 2021. At that hearing Ms Brown was represented by counsel. I was told by counsel that she and Ms Brown had understood that the hearing was a case management conference only and that Ms Brown was not prepared to respond to an application for summary judgment. I took the view that Ms Brown should be given time to serve evidence in response to that filed in support of DL’s application for summary judgment. She did so on 22 November 2021. The application was adjourned and comes back before me today. 15I have been shown a note of the hearing of 1 November 2021 taken by DL’s solicitors. At the hearing Ms Brown’s counsel told me, on instructions, that Ms Brown did not dispute that she had been employed by DL and that the issue between the parties was whether the two films were created by her in the course of her employment. That seems to me to be correct, at least so far as the pleaded case is concerned. The duties of Ms Brown as DL’s employee are set out in the contract of employment, as I have said. It strongly suggests that her work on the two films fell squarely within her duties as an employee. Ms Brown has not given any reason to suppose that her work did not fall within her duties and that, accordingly, she carried out that work in the course of her employment by DL. I take the view that there is no real prospect of the trial judge finding otherwise. 16I return to the suggestion raised in Ms Brown’ witness statement of 22 November 2021 regarding Mr Cooper’s verbal assurance. She puts it in this way: “13. Andrew Cooper agreed to numerous verbal conditions that would apply to the agreement I would go on to sign, which he would not honour. They were as follows:i) That any contract signed was purely a technicality to facilitate payment and accounting.ii) That all my work would belong to me, and not the Claimant.iii) That I would not associated with Daemonlinks Ltd.”1718The allegation that Mr Cooper agreed that all Ms Brown’s work would belong to her not to DL is, on its face, surprising. It is not in dispute that Ms Brown received payment from DL for her work, as well as pension rights, sick pay and holiday payment. If DL did not own the product of her work, it is not clear what they were paying for. 19Today, Ms Brown told me that Mr Cooper had offered to provide those benefits out of an act of kindness. That is in theory possible, but I find it difficult to believe. More than that, Ms Brown’s allegation that Mr Cooper agreed that she would own all the product of her work is inconsistent with the case she advanced in her pleaded Defence, which included this:“10. The Defendant avers that:……….20The Defence also says this: 21Finally, even if there were discussions along the lines alleged by Ms Brown before she entered into her contract of employment, it seems to me that that such discussions were overtaken and replaced by the terms of the written contract itself.22I cannot take at face value what Ms Brown says in her witness statement of 22 November 2021 regarding assurances by Mr Cooper that she would own the product of her work for DL. It seems to me that Ms Brown has no real prospect of establishing the truth of this allegation at trial. 23The upshot is that, as between DL and Ms Brown, DL is at least the owner of the copyright in the Dover Piece and at least co-owner of the copyright in the Crobar Piece. Ms Brown owns no rights in the copyright in those two films. It would follow that, whether DL is sole owner or joint owner of the copyrights, it is entitled to restrain Ms Brown from infringing the copyrights: (see Powell v Head (1879) 12 Ch D 686).24The Particulars of Claim also allege that Ms Brown’s contract of employment contained implied terms. I take the view that the factual circumstances of the contract would have to be explored further in order to make good that allegation and any allegation of breach of such terms and I make no finding of summary judgment in relation to them. Similarly, I am not, at present anyway, convinced that I can make a finding of summary judgment in relation to DL’s rights as against Mr Wales or Mr Wildey. Neither was represented before me today. However, I will hear Mr Grant on that and on the nature of relief to which DL is entitled.