Damages for Copyright Infringement - Charles and Ivy Ltd v Chelsea Supplies Ltd

John Speed's Map of Lancashire (1610)

Author: John Speed, Copyright: Public Domain, Source: Wikimedia Commons

 

Jane Lambert

Intellectual Property Enterprise Court (Her Honour Judge Melissa Clarke) Charles and Ivy Ltd and another v Chelsea Supplies Ltd [2026] EWHC 2556 (IPEC) (9 Oct 2026)

This was an inquiry as to damages for copyright infringement conducted by Her Honour Judge Melissa Clarke. The claimants were Charles and Ivy Top Ltd. ("CIT") and its wholly owned subsidiary, Charles and Ivy Ltd. ("CI").  The copyright works were 20 images of fencing elements and finishes, copies of which occupy the left-hand column of Annex A to the transcript of Judge Melissa Clarke's judgment in Charles and Ivy Ltd and another v Chelsea Supplies Ltd  [2026] EWHC 2556 (IPEC) (9 Oct 2026). Those images had been made by Greg Robinson, a British citizen living in the UK.  He assigned the copyrights subsisting in those works to CIT on 7 July 2025.  That company granted its subsidiary an exclusive licence on 19 Aug 2025.

The Infringement

The defendant, Chelsea Supplies Ltd. ("Chelsea"), retails fencing products.  The claimants alleged that Chelsea had copied the images from their website and posted them on Chelsea's website without their licence.   Chelsea admitted subsistence of copyright and unlicensed reproduction but alleged that the copying had been done by its web designer without its knowledge or consent.     

The Case Management Conference

Chelsea consented to judgment for infringement at the case management conference and offered undertakings not to infringe.   The judge ordered Chelsea to pay the claimants' costs to be assessed at the inquiry if not agreed.  She gave directions for disclosure and service of witness statements and listed the following issues to be tried:

"i) Did the Defendant and/or its admitted agents know, or have reason to believe, that copyright subsisted in the Claimants' Images?
ii) What is the quantum of the Claimants' claim to compensatory (general) damages?
iii) Should additional damages be awarded pursuant to s. 97 (2) CDPA and/or Regulation 3 of the Intellectual Property (Enforcement, etc) Regulations 2006 and if so, what quantum?"                

Did the Defendant and/or its admitted agent know, or have reason to believe, that copyright subsisted in the Claimants' Images?   

Chelsea failed to satisfy Judge Melissa Clarke that neither it nor its web developer knew or had reason to believe that copyright subsisted in the claimants' images. In selecting those images, the web developer, as Chelsea's agent, copied professionally produced marketing images of specific fencing elements from a commercial website. The images were used to promote competing products. They were not generic stock images. 

Her Honour found that the web developer, as Chelsea's agent and/or employee, had at least reason to believe that copyright subsisted in the claimants' Images.  The web developer's knowledge was attributable to Chelsea as its employer because it is trite law that an employer is fixed with the knowledge of its employees acting in the course of their employment. Also, as Chelsea had accepted that the web developer had been its agent, it was fixed with knowledge acquired by the web developer in the course of the very task for which the web developer had been engaged, namely building Chelsea's website using the images. The judge referred to art 95 (1), Bowstead & Reynolds on Agency 23rd Ed ¶8-208 - 8-217, citing, among other cases, Dresser v Norwood 144 E.R. 188; (1864) 17 C.B. N.S. 466 and Real Estate Opportunities Ltd v Aberdeen Asset Managers Jersey Ltd [2007] EWCA Civ 197, [2007] 2 All ER 791 to support her conclusion.

What is the quantum of the Claimants' claim to compensatory (general) damages?

It was common ground that a reasonable licence fee was the appropriate measure of damages. The evidence did not permit any reliable conclusion that the claimants had lost sales to Chelsea, or that Chelsea's sales were attributable to infringing use of the images. The judge directed herself at para [50] of her judgment that the proper approach was to assess the value of the infringing use made of the copyright works to the defendant and identify the fee which willing parties would reasonably have agreed for the use actually made of the images.

The judge found that the images cost £15,875 plus VAT to create and that they had been used in the development of Chelsea's website. The infringement concerned 20 images used on the website, first in development and then when it went live, from the end of April until 3 July for the majority of the images and end of April until 22 July for the remainder. Taking into account the duration of use on a non-exclusive basis, the number of images, the non-exclusive nature of the hypothetical licence, the commercial sensitivity of licensing commercial images to a nearby competitor and the value of launching i fencing pages without delay, she considered that the likely result of that negotiation would have been a licence fee of £4,000.

Should additional damages be awarded pursuant to s.97 (2) CDPA and/or Regulation 3 of the Intellectual Property (Enforcement, etc) Regulations 2006 and if so, what quantum?

Judge Melissa Clarke set out s.97 (2) of the Copyright, Designs and Patents Act 1988:

"The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to -
a) the flagrancy of the infringement, and
b) any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require."

She directed herself at para [60] that Flagrancy implies scandalous conduct or deceit, including deliberate or calculated infringement per Ravenscroft v Herbert [1980] RPC 193, and a "couldn't care less" attitude has been held to be sufficient (Nottinghamshire Healthcare National Healthcare Trust v News Group Newspapers Ltd [2002] RPC 49).

She was satisfied that this was a case of flagrant infringement. The web developer had deliberately used images for a commercial website knowing or having reason to believe that copyright subsisted in them. In so doing, the developer demonstrated a "couldn't care less" attitude to the claimants' copyrights at the very least. She also found that the use of the images conferred a benefit on Chelsea in that it enabled it to launch its business sooner. Taking all these factors into account, the justice of the case required a modest award of additional damages, which she assessed at £3,000.

Assessment of Costs

The judge assessed the claimants' costs up to the case management conference at £13,704.50.   She will have to assess the costs of the enquiry unless they can be agreed.

Comment

Even after taking into account the award of additional damages, the relief granted by the court was well within the jurisdiction of the IPEC small claims track.  The procedure would have been simp252 ler and possibly faster.  It would certainly have been cheaper for Chelsea as costs are limited by CPR27.14.  Anyone wishing to discuss this case may call me on +44 (020 7404 5252 or send me a message through my contact page.