HT-2021-000363 - [2025] EWHC 998 (TCC)

Fecha: 24-Abr-2025

Application for permission to appeal

Application for permission to appeal

72.

The Defendants seek permission to appeal in respect of the draft grounds dated 3 April 2025. The draft identifies 49 grounds, with 165 separate paragraphs of alleged errors in the Judgment and is supported by a skeleton running to 41 pages.

73.

The test for permission to appeal is set out in CPR 52.6, namely, where:

the court considers that the appeal would have a real prospect of success; or

ii)

there is some other compelling reason for the appeal to be heard.

74.

I refuse permission to appeal because the grounds do not identify any errors of law or principle, or findings of fact that were not open to the Court on the evidence.

Grounds 1 to 7 in Section (A) raise alleged errors in the Court’s understanding or application of the Software Directive but fail to identify specific errors of law or principle in the Judgment, which sets out the relevant legislation, case law and principles at paragraphs [214] to [270]. The reference to the recent Sony v Datel judgment of the CJEU does not assist because it is not binding, was not relied on by the parties, and does not directly address the issues before the Court.

ii)

Grounds 8 to 15 in Section (B) seek to challenge points of construction of the ICA but do not identify any error in the Court’s approach or analysis. The material terms of the ICA are at paragraphs [64] to [75] and the analysis is at paragraphs [147] to [272] of the Judgment.

iii)

Grounds 16 to 35 in Sections (C), (D), (E), (F) and (G) are an attempt to challenge findings of fact on the technical breaches made by the Court having assessed the credibility and reliability of the witnesses who gave evidence against the contemporaneous documents deployed during the trial and the expert evidence. The technical breaches are considered and determined at paragraphs [273] to [844] of the Judgment.

iv)

Grounds 36 to 38 in Section (H) are a further attempt to challenge findings of fact as to knowledge and intention of the Defendants, based on the Court’s assessment of the credibility and reliability of the witnesses who gave evidence at trial. The case on unlawful procurement of breach is considered and determined at paragraphs [845] to [936] of the Judgment.

Grounds 39 to 41 in Section (I) are a further attempt to challenge findings of fact as to the combination, knowledge and intention of the Defendants, based on the Court’s assessment of the credibility and reliability of the witnesses who gave evidence at trial. The case on unlawful means conspiracy is considered and determined at paragraphs [937] to [960] of the Judgment.

vi)

Grounds 42 in Section (J) and 46 in Section (K) seek to challenge the Court’s finding that there was damage for the purpose of unlawful means conspiracy at paragraphs [959] and [1119] of the Judgment but fail to identify any error of principle or law.

vii)

Ground 43 in Section (K) seeks to challenge the Court’s construction of clause 1.11.4 of the ICA but the arguments made were considered in the Judgment and rejected at paragraphs [991] to [1007]. The Defendants have not identified any authority in which a court at first instance, or on appeal, reached a different conclusion on a similar issue of construction.

viii)

Grounds 44 and 45 in Section (K) seek to challenge the Court’s findings of fact on deliberate concealment and knowledge, considered at paragraphs [1013] to [1118] of the Judgment, but do not identify any error in the legal principles set out and fail to engage with the detailed evidence set out in that part of the Judgment in support of the findings.

ix)

Grounds 47 to 49 in Section (L) seek to challenge the Court’s findings of fact on the audit and termination issues considered at paragraphs [961] to [987] of the Judgment but do not identify any error of principle or law.

75.

The lengthy draft grounds of appeal are an attempt to re-litigate each and every substantive issue in the case by re-opening every adverse finding, in circumstances where the Court applied established principles of law to the facts of the case as determined on the factual and expert evidence following the 33-day trial.

76.

It is accepted that the Software Directive is of general interest to the IT and IP industries but the draft grounds do not identify a significant point of legal principle that provides another compelling reason for the appeal to be heard.

77.

For the above reasons, the appeal has no real prospect of success and permission is refused.