The Gazette 1995

GAZETTE

JANl'ARY/EEBRUARY 1995

mutation of the penalties which they impose. The effect of the penalty im- posed or the manner in which it was altered were not governed by the terms of the 1924 Act. Accordingly the plain- tiff was not necessarily barred from pur- suing a claim for declaratory relief in relation to irregularities or wrongdo- ings concerning the death penalty which had been imposed on him, the manner in which it was imposed on him and the circumstances in which it was claimed that the commuted penalty was to consist of 40 years' penal servitude without remission. (5) Likewise the plaintiff's claim regarding his allegedly wrongful transfer to different prisons during his trial in the Special Criminal Court did not constitute a challenge to his conviction by means of civil pro- ceedings. However, before this matter could be pursued there would have to be substantial amendments to the pleadings. Reported at (1994| 11LRM 467 Practice - Security for costs - Negligence claim for personal injuries arising out of road traffic accident - Plaintiff resident in another country and with no assets in Ire- land Facts On 25 September 1987 a collision occurred between the defendant's mo- tor car and the plaintiff, who was a pe- destrian crossing the road. The plaintiff, who was resident in Libya and did not have any assets in Ireland, sought dam- ages for personal injuries. The defen- dant denied liability and brought an application for security for costs. This was refused by MacKenzie J on 26 No- vember 1990 on the grounds that it would be open to the trial judge to find both parties at fault and to grant the application would be to deny the plain- tiff his right of action simply because he lived in another country. The defendant appealed. Held by the Supreme Court (O'Flaherty J; Egan and Blayney JJ concurring) in allowing the defendant's appeal: (1) Prima facie a defendant establishing a prima facie defence to a claim made by a plaintiff residing outside the jurisdic- tion has a right to an order for security for costs. However, this is not an abso- lute right and the court has to exercise a discretion based on the facts of the indi- vidual case. Collins v. Doyle [1982] ILRM 495 approved. (2) The defendant had put forward evidence that he had a good defence to the plaintiff's claim. Rashad Fares v. John Wiley: Supreme Court (O'Flahertv, Egan and Blavney JJ) 22 October 1993 '

Although the plaintiff was not impecu- nious, this was an appropriate case in which to make an order for security for costs. Per curiam: Given the facts and surrounding circumstances the case ap- peared to be modest in nature. Accord- ingly a modest sum should be fixed by

injunction to restrain the defendants from infringing the plaintiffs' copyright in the software used in the decoders and the cards. In particular it was claimed that the defendants' card had to contain a copy of, or at least a part of, the algo- rithm and other components from the plaintiffs' card and that the plaintiffs' algorithm was so complex that it was completely improbable that the defen- dants' card could have been produced in any way other than through direct access to and copying of the plaintiffs' computer program. Held by Flood J in refusing the relief sought: (1) A person seeking the grant of an interlocutory injunction must show that there is a fair bona fide ques- tion to be tried. Campus Oil Ltd v. Minis- ter/or Industrif and Energy (No. 2) [1983] IR 88 applied. (2) Where an interlocu- tory injunction is sought in a case of alleged copyright infringement, the plaintiff must adduce some positive evidence which at least gives rise to the implication that copving has taken place. However, such evidence does not have to establish copying as a matter of probability. (3) The plaintiffs had not offered any scientific basis for their claim that, given the complicated na- ture of their algorithm, the onlv expla- nation for the identical result achieved by the defendants' card was copving. While the defendants' computer pro- gram could perform the same function as the plaintiffs', this did not constitute direct evidence that there was a similar- ity in the programs themselves. Thrust- code Ltd v. W.W. Computing Ltd [1983] FSR 502 approved. (4) The tact that the plaintiffs changed their algorithms on a regular basis and that the defendants were able to produce a card capable of unscrambling the amended signal within a relatively short time thereafter made the plaintiffs' claim that the onlv explanation for such functional similar- ity was copying highly improbable and gave weight to the defendants' claim that they had not infringed the plain- tiffs' copyright. (5) While an interlocu- tory injunction is a discretionarv rem- edy, the mere fact that the conduct of the defendant is questionable as a matter of ethics or morality was not a sufficient basis for the grant of such an order.

way of security for costs. Reported at [1994) 1 ILRM 465

News Datacom Ltd, British Sky Broadcasting Ltd and Sky Television pic v. David Lyons t/a Satellite Decoding Systems, Satellite Decoding Systems & Co., Satellite Systems Ltd, Satellite Decoding System (1986) and Marie Molloy: High Court (Flood J) 20 January 1994 Injunction - Interlocutory - Copyright - Infringement - Computer program - Satel- lite broadcasting - Encrypted signal de- coded by means of device activated by card containing computer program - Cards mar- keted by the defendants capable of activating decoder and unscrambling signal - Allega- tion of infringement of copyright in the computer program - Fact that defendants' card could achieve the same result as the plaintiffs did not raise a serious question as to whether copying had occurred - Copy- right Act 1963 - European Communities (Legal Protection of Computer Programs) Regulations 1993 Facts The second and third named plaintiffs transmitted their television signals by satellite in a scrambled form so that they could not be received on a standard television but only on one which had been adapted through the addition of a decoder activated on the insertion of a 'smart card'. This card carried a computer program, consisting of an algorithm, a source code and an object code, which would unscramble the encoded television signal and allow the user to see and hear the material transmitted by the plaintiffs. The plain- tiffs made these cards available to per- sons who paid subscriptions. From time to time the plaintiffs altered the com- puter program by inserting a com- pletely new algorithm and when this was done each subscriber would have to obtain an altered card in order to view the transmitted material. In 1993 the first named defendant started to sell a card which had not been produced or authorised by the plaintiffs but which could unscramble their television sig- nals. Whenever the plaintiffs changed their algorithms the defendants suc- ceeded in producing a card capable of unscrambling the amended signal within a relatively short time thereafter. The plaintiffs sought an interlocutory

Reported at [1994) 1 ILRM 450

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