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Grace faces $1.7b copyright claim
Court rules Audrey Marks's submission legitimate
Friday, July 10, 2009
GraceKennedy Ltd will face a $1.7-billion claim from Paymaster Jamaica Ltd when it appears in court in October to defend charges that it stole the business plan and infringed the copyright of the payment agency, to set up its own competing firm - Bill Express Ltd - nine years ago.
Last week Thursday, the Court of Appeal ruled that
a supplementary witness statement tendered in evidence in April 2008 by Audrey Marks, Paymaster's owner, was legitimate, meritorious and should therefore be heard in its totality at the full trial scheduled for October.
In arriving at that decision, the Court of Appeal was reaffirming the January 2009 ruling in favour of Marks by Supreme Court Justice Leighton Pusey, but to which Grace and its lawyers had objected and had gone to
the Court of Appeal to have overruled.
Marks used the statement in April to flesh out the financial claims against GraceKennedy Ltd, laying out the consequential impact of the alleged copyright violation on Paymaster's financial health, and specifying what she calculated to have been the benefits to Grace, and the portion she believes should accrue to Paymaster.
Her lawyers have sought compensation under the Copyright Act, claiming $652.6 million in loss of earning, in addition to another US$12 million, representing 10 per cent of the value of GraceKennedy Remittance Service, based, they argue, on the value that Western Union had placed on the company in taking a 25 per cent stake two years ago.
Paymaster is being represented by Hilary Phillips QC and Denise Kitson from the legal firm Grant Stewart Phillips and Company.
Grace's case is being argued by Michael Hylton QC, Kirk Anderson and Courtney Bailey instructed by the law firm Dunn Cox.
On Tuesday, Michael Hylton seemed to leave the door ajar for a possible appeal to the Privy Council in the UK against last week's judgement - though others in legal circles told the Observer that it would be "extremely unlikely" that the Supreme Court would accommodate any request for leave to appeal the decision to the country's ultimate court.
"A decision has not yet been made on that, if you ask me in another three or four days I can tell you," said Hylton.
Since June last year, GraceKennedy has made four attempts to disgorge the pivotal supplemental witness statement from the case being put forward by Paymaster, arguing before judges both in the Supreme Court and the Court of Appeal that it amounted to an attempt by Marks to introduce new claims that went beyond the initial complaint that she filed back
in 2000.
Said Grace's lawyers in court documents obtained by the Observer:
"The matters alleged in the supplemental witness statement of Audrey Marks are irrelevant to the claim pleaded by the claimant herein and instead seek to adduce evidence in support of a claim not pleased herein."
As Grace made its initial attempt to thwart Marks's supplemental evidence, a lower court held that its admissibility should be decided by the trial judge, but that position ultimately did not prevail.
In the end, Pusey, and later the three Court of Appeal justices - Howard Cooke, Hazel Harris and Mahadev Dukharan - unanimously held that the statement should stand.
But on Tuesday, Hylton indicated that last week's judgement would not put an end to his client's attempts to seek ruling on other elements of the case ahead of the full trial, noting that Grace was heading back to court yesterday (Thursday) afternoon to argue for a bifurcation of the actual trial and the decision process for the determination of liability.
"(We will go to court) to decide whether the question of liability and amount should be tried at the same time," he said. "It is a standard in copyright cases.
Because the damages can be complicated, sometimes the courts say rather than the people spend a lot of money to prepare and decide how much, let us first decide whether there should be any (liability) and then indeed how much, if any. Sometimes the courts do everything one time [that is liability and amount] and sometimes they say do one later. I am representing Grace and we are vigorously contesting that we owe any liability at all. Paymaster is claiming $1 billion in damages."
Last week's decision represents the most significant development in the case that stretches back to 2000 when Marks took action against Grace, alleging that through its subsidiary, Bill Express (GraceKennedy Remittance Service Limited) it stole her business plan and infringed her copyright to facilitate the launch of its competing bills payment service.
Marks, through her Paymaster Ltd, introduced to Jamaica in the late 1990s the business model of multiple bill payments for multiple client companies.
Grace's Bill Express entered the market in 2000 as a direct competitor to Paymaster.
The story of Paymaster's legal action against Grace was first reported by the Observer in 2000. But the case quickly gained traction within the rest of the media, because it represented the first major test case for Jamaica which had been aggressively wooing technology investors, and which had begun to publicly embrace, and legislatively strengthen protection for intellectual property in line with corporate and civil culture within first-
world jurisdictions.
Over the years, the case, away from the public glare, meandered through Jamaica's overburdened court system, but started full steam ahead in April 2008 when Marks filed her supplemental witness statement in which she placed actual dollar value on the impact of what she alleges to be Grace's actions against her company.
The full trial was set for mid-June 2008, but on the third of that month, Grace's lawyers filed a notice to the courts seeking to have Marks's supplemental statement thrown out.
At the first application, the court ruled that the matter as to whether Marks's evidence ought be allowed should be heard by the judge at the actual trial of the case. Grace appealed that ruling. The order was set aside and the matter referred to Justice Leighton Pusey. He then ruled against Grace in January this year, arguing that Marks's statement was relevant, legitimate and should therefore be heard at trial.
Grace then appealed Pusey's ruling to the full Court of Appeal. That judgement was handed down last week Thursday.
Two written rulings were submitted by the Court of Appeal outlining the bases for the decision - one by Justice Howard Coke, and the other by Justice Hazel Harris with Justice Mahadev Dukharan fully endorsing both findings. All three justices agreed that costs should be awarded against GraceKennedy, and dismissed the bases on which the conglomerate's lawyers constructed their appeal, as without foundation.
On Wednesday, Marks's lawyers, in asserting what they said was their "complete belief in our client's case", stressed that they planned to argue in court yesterday for the case and liability to be tried together.
"The matter has been set down for trial for 10 days in October, enough time for us to treat with the case completely, and we would be advancing the position that both liability and quantum should be heard at the same time," said Phillips and Kitson.
The result of yesterday's pleadings was not known before press time.
Marks, who is Paymaster's CEO, while declining to comment directly on the specifics of the case, said on Wednesday that she was awaiting her day in court "to tell the entire world what I went through".
"It has been nine long years, but the Court of Appeal ruling has validated my confidence in our justice system," she said. "I am extremely pleased that the court agreed with the arguments made by my attorneys, and I am looking forward to the full trial."
In her statement of claim, Marks traced the four years she spent during the mid-1990s taking the Paymaster business model from concept, to software development, to test trial, to contract engagement, and implementation.
She said that sometime around 1996, she provided Grace with a full template of her business plan and software architecture, in the belief that the conglomerate had a genuine interest in investing in her new bills collection company, and as part of the information sharing that would be a pre-requirement for such an investment.
But, here is what Marks and her lawyers are alleging to have happened:
".in or about late 1998 or early 1999 the plaintiff (Marks) realised that the first defendant (Grace) was not in fact interested in investing in the plaintiff's business as they had led the plaintiff to believe, but under the guise of investing discussions was only interested in obtaining the plaintiff's technology."
In the court documents the Paymaster CEO further alleges that Grace subsequently induced the software contractor whom she had engaged, to sell to it the software that contained her company's full and complete business plan, and used it to start Bill Express. GraceKennedy paid US$20,000 for the software and business plan.
The software contractor, Paul Lowe, is named as the second defendant in the case.
Grace, having vigorously denied those charges, is now in court defending its position.
- Steven Jackson contributed to this story
Court rules Audrey Marks's submission legitimate
Friday, July 10, 2009
GraceKennedy Ltd will face a $1.7-billion claim from Paymaster Jamaica Ltd when it appears in court in October to defend charges that it stole the business plan and infringed the copyright of the payment agency, to set up its own competing firm - Bill Express Ltd - nine years ago.
Last week Thursday, the Court of Appeal ruled that
a supplementary witness statement tendered in evidence in April 2008 by Audrey Marks, Paymaster's owner, was legitimate, meritorious and should therefore be heard in its totality at the full trial scheduled for October.
In arriving at that decision, the Court of Appeal was reaffirming the January 2009 ruling in favour of Marks by Supreme Court Justice Leighton Pusey, but to which Grace and its lawyers had objected and had gone to
the Court of Appeal to have overruled.
Marks used the statement in April to flesh out the financial claims against GraceKennedy Ltd, laying out the consequential impact of the alleged copyright violation on Paymaster's financial health, and specifying what she calculated to have been the benefits to Grace, and the portion she believes should accrue to Paymaster.
Her lawyers have sought compensation under the Copyright Act, claiming $652.6 million in loss of earning, in addition to another US$12 million, representing 10 per cent of the value of GraceKennedy Remittance Service, based, they argue, on the value that Western Union had placed on the company in taking a 25 per cent stake two years ago.
Paymaster is being represented by Hilary Phillips QC and Denise Kitson from the legal firm Grant Stewart Phillips and Company.
Grace's case is being argued by Michael Hylton QC, Kirk Anderson and Courtney Bailey instructed by the law firm Dunn Cox.
On Tuesday, Michael Hylton seemed to leave the door ajar for a possible appeal to the Privy Council in the UK against last week's judgement - though others in legal circles told the Observer that it would be "extremely unlikely" that the Supreme Court would accommodate any request for leave to appeal the decision to the country's ultimate court.
"A decision has not yet been made on that, if you ask me in another three or four days I can tell you," said Hylton.
Since June last year, GraceKennedy has made four attempts to disgorge the pivotal supplemental witness statement from the case being put forward by Paymaster, arguing before judges both in the Supreme Court and the Court of Appeal that it amounted to an attempt by Marks to introduce new claims that went beyond the initial complaint that she filed back
in 2000.
Said Grace's lawyers in court documents obtained by the Observer:
"The matters alleged in the supplemental witness statement of Audrey Marks are irrelevant to the claim pleaded by the claimant herein and instead seek to adduce evidence in support of a claim not pleased herein."
As Grace made its initial attempt to thwart Marks's supplemental evidence, a lower court held that its admissibility should be decided by the trial judge, but that position ultimately did not prevail.
In the end, Pusey, and later the three Court of Appeal justices - Howard Cooke, Hazel Harris and Mahadev Dukharan - unanimously held that the statement should stand.
But on Tuesday, Hylton indicated that last week's judgement would not put an end to his client's attempts to seek ruling on other elements of the case ahead of the full trial, noting that Grace was heading back to court yesterday (Thursday) afternoon to argue for a bifurcation of the actual trial and the decision process for the determination of liability.
"(We will go to court) to decide whether the question of liability and amount should be tried at the same time," he said. "It is a standard in copyright cases.
Because the damages can be complicated, sometimes the courts say rather than the people spend a lot of money to prepare and decide how much, let us first decide whether there should be any (liability) and then indeed how much, if any. Sometimes the courts do everything one time [that is liability and amount] and sometimes they say do one later. I am representing Grace and we are vigorously contesting that we owe any liability at all. Paymaster is claiming $1 billion in damages."
Last week's decision represents the most significant development in the case that stretches back to 2000 when Marks took action against Grace, alleging that through its subsidiary, Bill Express (GraceKennedy Remittance Service Limited) it stole her business plan and infringed her copyright to facilitate the launch of its competing bills payment service.
Marks, through her Paymaster Ltd, introduced to Jamaica in the late 1990s the business model of multiple bill payments for multiple client companies.
Grace's Bill Express entered the market in 2000 as a direct competitor to Paymaster.
The story of Paymaster's legal action against Grace was first reported by the Observer in 2000. But the case quickly gained traction within the rest of the media, because it represented the first major test case for Jamaica which had been aggressively wooing technology investors, and which had begun to publicly embrace, and legislatively strengthen protection for intellectual property in line with corporate and civil culture within first-
world jurisdictions.
Over the years, the case, away from the public glare, meandered through Jamaica's overburdened court system, but started full steam ahead in April 2008 when Marks filed her supplemental witness statement in which she placed actual dollar value on the impact of what she alleges to be Grace's actions against her company.
The full trial was set for mid-June 2008, but on the third of that month, Grace's lawyers filed a notice to the courts seeking to have Marks's supplemental statement thrown out.
At the first application, the court ruled that the matter as to whether Marks's evidence ought be allowed should be heard by the judge at the actual trial of the case. Grace appealed that ruling. The order was set aside and the matter referred to Justice Leighton Pusey. He then ruled against Grace in January this year, arguing that Marks's statement was relevant, legitimate and should therefore be heard at trial.
Grace then appealed Pusey's ruling to the full Court of Appeal. That judgement was handed down last week Thursday.
Two written rulings were submitted by the Court of Appeal outlining the bases for the decision - one by Justice Howard Coke, and the other by Justice Hazel Harris with Justice Mahadev Dukharan fully endorsing both findings. All three justices agreed that costs should be awarded against GraceKennedy, and dismissed the bases on which the conglomerate's lawyers constructed their appeal, as without foundation.
On Wednesday, Marks's lawyers, in asserting what they said was their "complete belief in our client's case", stressed that they planned to argue in court yesterday for the case and liability to be tried together.
"The matter has been set down for trial for 10 days in October, enough time for us to treat with the case completely, and we would be advancing the position that both liability and quantum should be heard at the same time," said Phillips and Kitson.
The result of yesterday's pleadings was not known before press time.
Marks, who is Paymaster's CEO, while declining to comment directly on the specifics of the case, said on Wednesday that she was awaiting her day in court "to tell the entire world what I went through".
"It has been nine long years, but the Court of Appeal ruling has validated my confidence in our justice system," she said. "I am extremely pleased that the court agreed with the arguments made by my attorneys, and I am looking forward to the full trial."
In her statement of claim, Marks traced the four years she spent during the mid-1990s taking the Paymaster business model from concept, to software development, to test trial, to contract engagement, and implementation.
She said that sometime around 1996, she provided Grace with a full template of her business plan and software architecture, in the belief that the conglomerate had a genuine interest in investing in her new bills collection company, and as part of the information sharing that would be a pre-requirement for such an investment.
But, here is what Marks and her lawyers are alleging to have happened:
".in or about late 1998 or early 1999 the plaintiff (Marks) realised that the first defendant (Grace) was not in fact interested in investing in the plaintiff's business as they had led the plaintiff to believe, but under the guise of investing discussions was only interested in obtaining the plaintiff's technology."
In the court documents the Paymaster CEO further alleges that Grace subsequently induced the software contractor whom she had engaged, to sell to it the software that contained her company's full and complete business plan, and used it to start Bill Express. GraceKennedy paid US$20,000 for the software and business plan.
The software contractor, Paul Lowe, is named as the second defendant in the case.
Grace, having vigorously denied those charges, is now in court defending its position.
- Steven Jackson contributed to this story
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