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

Rashad Fares v. John Wiley: Supreme

Court (O'Flahertv, Egan and Blavney JJ)

22 October 1993 '

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.

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

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

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.

Reported at [1994) 1 ILRM 450