Ukoumunne v The University of Birmingham & Ors

Copyright protects the author’s original expression, including an original selection, arrangement or compilation of research material, but not ideas, themes, facts, theories or information as such. A claim requires evidence of objective similarity and copying, together with reproduction of a substantial part of the protected expression.

On summary judgment or strike-out, the court must decide whether the claim has a realistic prospect of success without conducting a mini-trial. A breach of confidence claim must identify the confidential information relied on and explain why it has the necessary quality of confidence. A claimant should receive a final opportunity to cure a defective pleading where there are reasonable grounds to believe that the defect can be remedied.

The claimant, an academic and former PhD student, sued the University of Birmingham, members of its academic staff and an educational publisher. She alleged copyright infringement and breach of confidence concerning articles and a book which she said reproduced material from her thesis. She also alleged breach of contract, professional negligence, discrimination and loss of earnings.

The court heard the claimant’s applications to transfer the proceedings and obtain disclosure, together with the defendants’ applications to strike out or obtain summary judgment. The central issues were whether the pleaded copyright and confidence claims had a realistic prospect of success, and whether the remaining causes of action were adequately particularised.

1. The copyright claims were struck out. Copyright protects expression rather than ideas. Reproduction of an original selection, arrangement, compilation or structure may infringe, but the use of information, facts, ideas, theories, arguments or themes does not suffice. The claimant’s examples showed, at most, similar subject matter, sources and themes. They did not show copying of her original expression or a substantial part of her works.

2. The court applied the summary judgment approach explained in Mellor v Partridge [2013] EWCA Civ 477. The question was whether the claims had a realistic, rather than fanciful, prospect of success. The court should not conduct a mini-trial, but may determine a short legal or evidential issue where it has the evidence necessary for a proper decision. The claimant had already identified her best examples and there was no realistic prospect that amendment would improve the copyright case.

3. The breach of confidence claim against the publisher was struck out. The claimant had not identified particular confidential information, explained why it was confidential, or shown that the publisher was put on notice of a duty of confidence. Mere notice of a plagiarism complaint and receipt of a lengthy thesis were insufficient.

4. The claim against the first to fourth defendants was not finally struck out. It was arguable that supervisors, and potentially the University as employer, owed duties of confidence. However, the claimant had failed to identify the confidential information. She was given a final opportunity, by unless order, to identify a limited number of original ideas or other confidential elements and explain their alleged misuse. Any surviving confidence claim against the publisher was stayed, subject to its undertaking to be bound by the court’s findings.

5. The contractual claim against the second to fifth defendants, the negligence claims, discrimination claims and loss-of-earnings claim were struck out. The contractual claim against the University was inadequately particularised but was allowed a final opportunity for amendment. The transfer and disclosure applications were adjourned.

This was a first-instance decision. The judgment states that the claim had originally been issued in the Queen’s Bench Division and was transferred to the Intellectual Property Enterprise Court by order dated 24 June 2019.