Postscript. Following the hand down of this judgment, counsel for Absolute Lofts returned to the court to ask for an amendment to the award of ordinary damages (the figure of £300). Their grounds for seeeking this were that when the court had taken the Shutterstock fees as good evidence of the real world cost of obtaining a licence for 21 similar images of loft conversions. However the full terms of the licence had been omitted from the trial bundle. The claimant had subsequently obtained these terms and found that amongst other things they contained the following:
“YOU [the licensee of the images] MAY NOT”:
12. Use an Image in a manner that infringes upon any third party’s
trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competition.Clearly Artisan's use of the licensed images was in breach of these terms and so the licence was invalid. It follows that Shutterstock would either have charged more for the actual use, or would not have permitted such use at all. Either way the figure of £300 was the wrong basis for the award.
18. Use any Image (in whole or in part) as a trademark, service mark, logo or other indication of origin, or as part therefore, or to otherwise endorse or imply the endorsement of any goods and/or services.’
19. Falsely represent, expressly or by way of reasonable implication, that any Image was created by you or a person other than the copyright holder(s) of that image."
The judge then had to decide whether he was permitted to reconsider his judgment and award of damages without the necessity a new trial or an appeal. Fortunately earlier this year Mr Justice Birss had had cause to examine much the same issue in Vringo Infrastructure Inc v ZTE (UK) Limited  EWHC 214 (Pat). Birss J concluded that where evidence was adduced after judgment had been given, the principles set out in Ladd v Marshall  1 WLR1489 might well be applied by the trial judge since he would have a better view of the facts than an appeal court.
HHJ Hacon stressed that while these principles are not decisive they are highly relevant to the current case:
“First, it must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial. Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly, the evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”Counsel for Absolute Lofts argued that this was not new evidence, and therefore the first principle did not apply, but the judge disagreed. On the basis that these additional terms could have been discovered with reasonable diligence before the trial or at least before judgment, the first principle was not met and so the application must fail.
Full details of the judgment here