Cybermedia Incorporated (Delaware USA) v Roderick Manhattan Group Ltd, Court of Appeal - Civil Division, August 06, 1998, [1998] EWCA Civ 1387

Issuing Organization:Civil Division
Actores:Cybermedia Incorporated (Delaware USA) v Roderick Manhattan Group Ltd
Resolution Date:August 06, 1998
 
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IN THE SUPREME COURT OF JUDICATURE PRO FORMA

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

MERCANTILE COURT

Royal Courts of Justice

Strand

London WC2

Thursday, 6 August 1998

B e f o r e:

LORD JUSTICE PILL

LORD JUSTICE MUMMERY

- - - - - -

CYBERMEDIA INCORPORATED

(a company incorporated in accordance with the laws

of the state of Delaware in the United States of America)

Plaintiff/Applicant

- v -

RODERICK MANHATTAN GROUP LIMITED

Defendant/Respondent

- - - - - -

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

- - - - - -

ASHLEY ROUGHTON (Instructed by Messrs Dibb Lupton Alsop, Birmingham, B2 5LF) appeared on behalf of the Applicant

CAROLINE FURZE (Instructed by Messrs Lee Crowder, Birmingham, B3 3DY) appeared on behalf of the Respondent

- - - - - -

J U D G M E N T

(As approved by the Court)

- - - - - -

©Crown Copyright

Thursday 6 August 1998

JUDGMENT

LORD JUSTICE PILL: Mummery LJ will give the first judgment.

LORD JUSTICE MUMMERY: The plaintiff in this action, CyberMedia Incorporated, a company incorporated under the laws of Delaware, has developed a range of software products known as "First Aid". They are used in conjunction with Microsoft Windows software for the purposes of rectifying problems which arise in the use of the software. In technical jargon this has been referred to in the papers as "automatic technical support software".

The defendant in the action, Roderick Manhattan Group Limited, (to which I shall refer as "RMG") is a software publisher in the United Kingdom, specialising in the re-publication in the United Kingdom of software imported from the United States. It does this by selling software to other distributors and to large retailers, but not to end users.

On 6 December 1994, a distributorship agreement was entered into between the parties under which RMG became an exclusive distributor of first-aid software in the United Kingdom. The agreement contained provisions for the termination of the agreement on notice. It also contained provisions relating to payments to be made by RMG to CyberMedia on ordering products. The agreement was subject to the laws of California.

The circumstances in which the exclusive distributorship created by that agreement has come to an end have given rise to these proceedings. They were commenced by a writ, endorsed with a statement of claim, which was issued on 13 June 1997, and subsequently amended on 28 March 1998. The substance of the claim is for non-payment of goods under the applicable conditions. The total claim is for a balance of £257,411.98. The claim is resisted. A defence and counterclaim were served on 1 September 1997 and later amended on 9 April 1998, and an amended reply was served on 24 April 1998. This part of the case is an interlocutory skirmish between the parties relating to the scope of discovery. It is concerned with an application made by RMG for specific discovery. Under the Rules of the Supreme Court, Order 24, rule 8, it is provided that on an application for specific discovery the court:

"... if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs."

In general discovery is only ordered on an application such as this if it is necessary.

The application was made for specific discovery of certain classes of documents. The two classes of documents with which this appeal is concerned, and in respect of which the judge refused to make orders are these (I shall refer to this class as paragraph 4):

"Documents...

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