Cembrit Blunn Ltd & Anor v Apex Roofing Services LLP & Anor

Goods may satisfy an industry standard yet fail the statutory requirement of satisfactory quality. The assessment is objective and considers the goods as supplied, including latent defects that emerge later. Fibre-cement slates with an accepted minor curl may be satisfactory, but slates that lift because of an inherent manufacturing characteristic are not. Copyright may subsist in business correspondence where its preparation involves substantial independent skill and labour. Confidential disclosure is justified only where the countervailing public interest outweighs the claimant’s interest in confidentiality; disclosure intended to exert pressure in a commercial dispute will not ordinarily be justified.

The claimants supplied fibre-cement roof slates to the defendants for use at housing developments at Aberfeldy and Greenhithe. Some slates curled or lifted, and the defendants alleged that the slates were defective. The claimants brought proceedings concerning the defendants’ circulation of an internal letter discussing the slate problems, alleging copyright infringement and breach of confidence, and seeking disclosure of the letter’s source. The defendants counterclaimed under section 14 of the Sale of Goods Act 1979. The issues included whether the slates were of satisfactory quality, whether the letter was protected, whether disclosure was justified, and whether the source could be disclosed.

1. Satisfactory quality. The statutory test under section 14 of the Sale of Goods Act 1979 was objective and assessed from the position of a reasonable buyer. It applied at delivery, but a latent defect emerging later could show that the goods were not satisfactory when supplied. Compliance with EN 492 and BBA approval was relevant but not conclusive.
2. The ordinary minor curling associated with fibre-cement slates was an accepted feature. Slates which had curled but remained restrained by their rivets were generally satisfactory. By contrast, slates which had lifted, including partially lifted slates, were unsatisfactory. The lifting resulted from an inherent characteristic of the slates, namely inconsistent and inadequate underside coating causing increased moisture absorption and curling. The evidence did not establish that defective workmanship caused the lifting.
3. The letter was an original literary work. Its preparation involved substantial independent skill and labour, and copyright subsisted in it for Dansk. The defendants’ copying infringed copyright, subject to any defence.
4. The letter contained confidential information. The defendants and the consultant source understood its confidential character. Disclosure to Countryside and Crest was not justified in the public interest, to avoid litigation, or to correct allegedly false statements. Its principal purpose was to exert pressure on the claimants and it was liable to be misconstrued. The fair-dealing defence also failed because the purpose was not criticism but commercial pressure.
5. Applying Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133, the claimants were prima facie entitled to disclosure of the source. The claim for unlawful interference with goods failed. Relief for copyright infringement and breach of confidence remained to be determined.