Wade & Anor v British Sky Broadcasting Ltd

A claim for misuse of confidential information normally requires information with the necessary quality of confidence, an obligation of confidence, and unauthorised use causing detriment. Similarities between works, together with an opportunity to copy, may shift the evidential burden to the defendant, who may rebut the inference by proving independent derivation. Copying may occur unconsciously. On appeal, factual and multi-factorial assessments attract considerable respect. The appellate court reviews for error and does not retry the case. A finding that material was independently created may make it unnecessary to decide whether a particular combination of features was confidential.

The claimants created and promoted a proposed television talent show called The Real Deal. They alleged that British Sky Broadcasting Limited had copied confidential features of the format in producing Must Be The Music after receiving their pitch.

Following a four-day trial, Birss J dismissed the claim. He accepted that the format as a whole had the necessary quality of confidence and that the similarities and timing justified an inference of copying, but found that Sky had established independent creation. The claimants appealed, challenging the judge’s approach, his treatment of the burden of proof, and several factual inferences. The central issue was whether the judge’s finding of no conscious or subconscious copying could properly be disturbed.

1. Disposition. The appeal was dismissed. The essential issue was factual: whether Sky had used the claimants’ information in producing its programme.
2. Breach of confidence. The court applied the established three-element framework stated in Coco v A N Clark (Engineers) Limited [1969] RPC 41: the information must have the necessary quality of confidence; it must have been imparted in circumstances importing an obligation of confidence; and it must have been used without authorisation to the communicator’s detriment. The third condition was not satisfied because the programme had been independently created.
3. Inference and burden. The legal burden remained on the claimants, but the similarities between the programmes and Sky’s opportunity to copy were capable of shifting the evidential burden by raising an inference of copying. That inference could be rebutted by evidence of independent derivation. Misuse by copying could be conscious or subconscious, as illustrated by Talbot v General Television Corporation PTY Limited [1981] RPC 1.
4. Appellate restraint. The court applied the principles summarised in Fine & Country Limited v Okotoks Limited [2013] EWCA Civ 672, including the caution required when reviewing factual findings and multi-factorial assessments. The approach was consistent with Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416, Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325, Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, and Smith New Court Securities Ltd v Citibank NA [1997] AC 254. The appellate court must not retry the case and should not interfere where the trial judge had a material evidential advantage unless there was an error of principle or the conclusion was plainly wrong. This approach corresponded with CPR Part 52.11(3)(a) Civil Procedure Rules 1998.
5. Application. The judge had considered the relevant similarities in combination, the timing, the documentary evidence, the oral evidence, and the possibility of subconscious copying. His reference to the strength of the evidence did not impose a heightened standard above the balance of probabilities. The assessment disclosed no error of principle, and the finding of independent creation was within the range of conclusions properly open to him.
6. Unresolved issues. Because there was no unauthorised use, it was unnecessary to decide whether the alleged combination of features had the necessary quality of confidence. The separate challenge concerning cross-examination also did not require determination; the relevant question would have been whether it was fair to decide against a party on grounds of which it had no real notice.

• Court of Appeal (Civil Division). In [2016] EWCA Civ 1214, the appeal was dismissed.
• Chancery Division. Birss J dismissed the claim after trial, in the decision cited as [2014] EWHC Civ 634 (Ch).