Whilst it was not necessary to do so in light of that finding, Justice Downes then went on to decide whether Mr Englebrecht, the sole director of Mickala Lighting Towers, was himself an infringing party in the context of Mickala Lighting Towers having admitted it had infringed.
Mr Engelbrecht admitted that he was the sole director and secretary of Mikala, involved in the day-to-day management of the company, in effective control of the conduct and business of the company and the guiding mind in respect of the company.
Her Honour determined that if the patent had been found to be valid, Mr Englebrecht would also have been liable for infringement on the basis that he had authorised the company’s conduct.
However, the situation was not so clear when it came to considering whether the director was also liable as a joint tortfeasor. Her Honour found no evidence that the director had directed or procured the infringement by the company or that he had a “close personal involvement” in the acts of infringement. This was despite the admissions noted above.
Mr Engelbrecht’s involvement in the running of the company is typical of a sole director company. The decision shows that in such situations, there is a real risk that a director will be personally liable for the infringing conduct of the company, at least on the basis of authorisation.
