Declaratory judgements - how to avoid?

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Sherif
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Declaratory judgements - how to avoid?

Post by Sherif » Mon Jun 06, 2011 7:35 am

Hope someone can help me on this one as I am getting a bit worried.

I want to take action against an someone reusing my work without permission (not an exact copy, but IMO clearly based on my work).

My understanding was that the first step in such cases (and what I have done in similar situations the past) is to send a cease and desist letter. I was planning to write my own and avoid the solicitor's fees as I just want the infringement to stop (I do not expect any damages) and cannot really afford a solicitor.
Someone has now pointed out that if I do that, the defendant can file for a 'declaratory judgement' in their own country and that if they do, I would be required to go to their country at my own expense to defend my claim. Looking here http://en.wikipedia.org/wiki/Declaratory_judgment this would seem to be the case!!
Clearly it would not be worth me flying out, but as I understand it, if I do not I would basically be letting them win the case and they would 'take over' my work as their own.


Is there a way to prevent a declaratory judgement? In a few cease and desist examples I have seen the words 'without prejudice' - would that be all I need?
I have been searching around the Internet this morning, but can't seem find a definitive answer.

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AndyJ
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Post by AndyJ » Mon Jun 06, 2011 9:15 am

Hi Sherif,
I have no experience of declaratory judgements being used in this way, but in a sense that's not the only problem you face if the defendant is based in another jurisdiction. From what you say you wouldn't wish to take the matter to court because of the expense and even if you sued in the UK courts, getting the judgement enforced in another jurisdiction would not be easy or worth the cost to you since it is unlikely that the other party would pay your costs, despite what the court might order. That is why for the big companies, it is better to sue in the court in the defendant's jurisdiction, as the judgment has more chance of being enforced.
Depending on the jurisdiction and assuming the alleged infringement is being carried out in part on the internet, you may be better to issue a DMCA takedown notice to the company hosting his site. If the other party or their server resides within the EU you can issue a similar notice under Article 14 of the eCommerce Directive (Directive 2000/31/EC).
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Sherif
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Post by Sherif » Mon Jun 06, 2011 10:31 am

Cheers Andy for such a quick and informative reply.

Can I just ask one (probably stupid) question - picking up on the statement "This may require the sender to appear in a distant court, at their own expense" on the Wikipedia link.

Say I send a cease and desist anyway and they did apply for a 'declaratory judgement' - can I at that point just drop the matter at no cost to myself, or would have to go to the court case or face damages/legal fees, etc?

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Post by AndyJ » Mon Jun 06, 2011 12:23 pm

As I mentioned I am no expert on the way these judgments work in other jurisdictions so take my words with caution. But of course you can break off at any stage after issuing your cease and desist letter. A declaratory judgment cannot make you do anything, indeed I don't believe one issued by a court say in the USA would prevent you from commencing proceedings in the UK. But for the reasons given earlier, a successful action in the UK against someone in a foreign jurisdiction would be a fairly hollow victory if it was unenforceable. Because this would be a civil matter irrespective of the jurisdiction, you have every right not to attend any court. Ordinarily that would result in a default judgment in favour of the other party, but since presumably the other party have no grounds for making a counter claim there would be little point in them doing that.
Bear in mind that it will cost the other party quite a lot in lawyer's and court fees to get a declaratory judgment, so if they are sensible, it will be cheaper and easier for them to just cease and desist as you request.
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Post by Sherif » Mon Jun 06, 2011 2:46 pm

Thanks Andy. That's been really helpful.

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