Case details

Computer Associates (UK) Ltd (Respondent) v The Software Incubator Ltd (Appellant)

Case ID: UKSC 2018/0090

Case summary

Issue(s)

Whether software supplied to customers electronically and not on any tangible medium constitutes "goods" within the meaning of regulation 2(1) of the Commercial Agents (Council Directive) Regulations 1993/3053 ("the Regulations").

Facts

The Respondent produced software which was supplied electronically as a download. In March 2013, the parties entered into an agency agreement whereby the Appellant agreed to promote the software in the UK and Ireland ("the Agreement"). In September 2013, the Appellant entered into a similar agreement with another company, Intigua, whereby it agreed to promote and market Intigua’s software in the UK and Ireland. In October 2013, the Respondent terminated the Agreement summarily on the basis that the Appellant was in repudiatory breach of its obligations under the Agreement to devote "substantial time and effort" to performing its obligations, and not to engage in any activity competing directly with the Respondent's software. Thereafter, the Appellant commenced High Court proceedings for damages for breach of contract and compensation under the Regulations. The Respondent argued that the Regulations did not apply because software supplied electronically did not amount to "goods" within the meaning of regulation 2(1). The High Court disagreed and awarded damages to the Appellant under the Regulations, as well as for breach of contract. The judge held that a sale of electronically supplied software was a sale of "goods" within the meaning of regulation 2(1). The Court of Appeal allowed the Respondent’s appeal on the meaning of "goods" in regulation 2(1).

Judgment appealed

[2018] EWCA Civ 518

Parties

Appellant(s)

The Software Incubator Ltd

Respondent(s)

Computer Associates (UK) Ltd

Appeal

Justices

Lord Reed, Lord Lloyd-Jones, Lord Kitchin

Hearing start date

28 Mar 2019

Hearing finish date

28 Mar 2019