Confessions of an IT Manager_Phil Factor

288 Phil Factor on the Law
my application under a new name. This probably wouldn't have mattered much,
had it not been for the fact that a third company bought up the assets of the
dead company, including the designs and code that I'd written, and then
engaged me to develop the product.
Very soon, there were two virtually identical products on the market. The
new owner was understandably aggrieved, especially after I obtained a copy of
their product, disassembled it, and was able to prove that it was identical to
mine. It looked like an open-and-shut case and so off we went, full of
confidence, to the solicitor's office, armed with a file of documents. He smiled
brightly, took our instructions, and briefed a leading London barrister.
After a while, we were summoned to the barrister's chambers, in Lincoln's
Inn. It was like a mediaeval cloister of Oxford College. The barrister was
articulate and affable, just as anyone would be on his hourly rate. We went
through the evidence, and he absorbed the technical intricacies as though he
had been programming X25 all his life.
"Oh yes," he admitted once we'd finished, "you have a case, a good case.
But…" he paused for a few seconds, thereby adding a few more pounds to his
charges.
"But what? "
"We could ask for an injunction to stop them selling the package … "
"Yes, yes," we agreed eagerly.
"… but the problem with that is that you might lose the subsequent court
case, and the other company would have unfairly lost all that business; it would
have suffered loss as a result of the injunction, for which you would then be
liable."
"But we won't lose!" we protested.
"I'm just telling you the system," he explained. "There have to be checks in
place to prevent malicious and unreasonable injunctions being requested. If you
ask for a preliminary injunction to stop them using your product then, as a
security, the Court will require you to deposit a sum of money equivalent to the
amount of their subsequent losses, just in case the action goes against you. The
other party is not going to underestimate their losses are they? They will suffer
enormous financial hardship, and might even go into liquidation. I suspect that
they will ask for around a million pounds. That is money you have to find
before you are awarded an injunction. "
"But it is an open or shut case. Surely, it is unfair to assume we are going to
lose?"