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EVERSHEDS’ 2017 MOOT UCL Law Society 38-50 Bidborough St London WC1H 9BT

UCL v. LSE Moot 2017 10th February 2017

Case Reference 2015/Semi-Final IN THE SUPREME COURT ON APPEAL FROM THE COURT OF APPEAL BETWEEN:

Tabitha Seliot

Appellant

– and – Dominic Rowan

Respondent

BRIEF TO COUNSEL

Dominic is a keen amateur photographer and buys a small unmanned aircraft (a ‘drone’), weighing 10kg and operated by remote control, to which he attaches a camera. Early one spring morning, he is flying the drone in a local park, at a height of 55m, hoping to take some overhead pictures of squirrels on a tree in the park. As a result of a gust of wind, the drone briefly flies over the fence of the park and takes some photographs of Tabitha’s adjacent garden. Tabitha’s garden is very large and the part of it photographed is over 100m from Tabitha’s house, or any other house. Tabitha’s cat and dog were fighting in that part of the garden when the drone flew overhead. They stopped to look up at the drone, and, in the resulting photograph, it appears that the cat and dog are smiling at the camera and hugging each other. When Dominic returns home and sees that photograph, he realises both that it is potentially very valuable and that it was taken when the drone strayed over the fence. He considers contacting Tabitha and asking for her permission to use the photograph but Kindly sponsored by EVERSHEDS

Connor Gray – Junior Moots Officer – UCL Law Society – [email protected]

decides not to, as he is worried that she might deny permission. Dominic publishes and claims copyright in the photograph, and makes profits of £500,000 as a result. When Tabitha sees the photograph online, she realises what has happened. She regards her pets as part of her family and would only have agreed to the publication of the photograph if offered a substantial part of any profits made. She therefore asks Dominic for a half share of his total profits. Dominic refuses. Tabitha brings a claim against Dominic. At first instance, McAvity J finds that Dominic is liable in trespass and for breach of confidence and awards damages of £200,000, stating that such damages are justified on either of the bases that: (i) Dominic can be made to pay “negotiating damages” and, once she had seen the photograph and recognised its potential value, Tabitha would have required at least a 40% share of Dominic’s profits before giving any permission for the use of the photograph; and (ii) an account of profits should be available, but Dominic should be made to disgorge only 40% of the profits, given his own contribution to their making. The Court of Appeal (Potter-Pirbright, Glossop, and Mulliner LJJ) allow Dominic’s appeal. It is held that: (i) applying Bernstein v Skyviews [1978] QB 479, no trespass was committed; (ii) applying the law as set out in Campbell v MGN Ltd [2004] 2 AC 457, Tabitha had no reasonable expectation of privacy in relation to her pets, and so there was no breach of confidence; (iii) in any case, no loss was suffered by Tabitha as a result of the taking or publication of the photograph, and so only nominal damages should have been available for any trespass or breach of confidence. “Negotiating damages” would have been inappropriate because, as was noted in Douglas v Hello! Ltd No 6 [2006] QB 125 (CA) by Lord Phillips MR at [246], there are “obvious problems” with awarding such damages where the basis of a complaint is “upset and affront at invasion of privacy, not loss of the opportunity to earn money”. Applying the analysis of Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268 (HL), as interpreted by Sales J in Vercoe v Rutland Fund Management Ltd [2010] EWHC 424 (Ch) at [339], an account for profits would also be inappropriate as it would be oppressive and not proportionate to the wrong done to Tabitha.

Kindly sponsored by EVERSHEDS

Connor Gray – Junior Moots Officer – UCL Law Society – [email protected]

Tabitha now appeals to the Supreme Court, making the following basic arguments, first as to liability and second as to damages. 1.

First, a trespass was committed as, whilst it is admitted that Dominic’s flying of the drone did not, at the time, breach any Civil Aviation Authority guidelines, the drone was flying at a much lower height, and was thus much more intrusive, than the aircraft in Bernstein. The Supreme Court’s decision in Star Energy v Bocardo [2010] UKSC 35 also confirms the continuing validity of the cujus est solum maxim. Second, a breach of confidence was committed by the publication of the photograph, as Tabitha had a reasonable expectation of privacy in relation to images of any activities occurring on her land and not open to the public. Applying the approach adopted in Campbell v MGN Ltd, as summarised by Lord Steyn in re S [2005] 1 AC 593 at [17], and given the trivial nature of the image, which carries no true public interest, Tabitha’s Article 8 right to respect for her privacy and home life should be given more weight than Dominic’s Article 10 right to freedom of expression.

2.

Substantial damages should be available on each of the grounds identified by McAvity J. First, as in Vercoe v Rutland Fund Management Ltd [2010] EWHC 424 (Ch), an award of “negotiating damages” should have been made. It is further argued that McAvity J was right to set such damages at a high level, as this simply took account of Tabitha’s aversion to allowing publication of the photograph. Second, as in Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109 (HL), an account of profits should be ordered in order to “lessen the temptation for recipients of confidential information to misuse it for financial gain” (per Lord Keith at 162).

Kindly sponsored by EVERSHEDS

Connor Gray – Junior Moots Officer – UCL Law Society – [email protected]...