COPYRIGHTJudge finding copying of fabric design - Court of Appeal departing from unchallenged finding - impermissible approachDesigners Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC): HL (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett and Lord Scott of Foscote): 23 November 2000The claimant brought proceedings claiming that the defendant had infringed its copyright by copying its fabric design.

The judge found that there were similarities between the two designs and held that the defendant had copied a 'substantial part' of the claimant's design for the purposes of s.16(3) of the Copyright, Designs and Patents Act 1988.

The defendant appealed against the finding that the copying had been 'substantial' but did not challenge the basic finding of fact that there had been copying.

The Court of Appeal decided on the basis that there were certain dissimilarities between the two designs that the copying had not been substantial.

The claimant appealed.Alastair Wilson QC and Jonathan DC Turner (instructed by Taylors, Blackburn) for the claimant.

Michael Fysh QC and Iain Purvis (instructed by Philip Conn & Co, Manchester) for the defendant.Held, allowing that appeal, that in analysing individual features of the two designs and highlighting certain dissimilarities the Court of Appeal had failed to give effect to the judge's conclusion, not challenged before it, that the similarities between the two designs were so marked as to warrant a finding that the one had been copied from the other; that on the facts of the case the finding of copying was almost bound to conclude the issue of substantiality; that the Court of Appeal had approached the issue of substantiality more in the manner of a first instance court making original findings of fact than as an appellate court reviewing findings already made and in very important respects not challenged; and that it was not for the Court of Appeal to embark on the issue of substantiality afresh, unless the judge had misdirected himself, which he had not.

(WLR)