THE HON MR JUSTICE JACOB
2 NOVEMBER 2001
- Rem Koolhaas is one of the world's foremost architects. He is the holder of the Pritzker 2000 Prize, called by some, architecture's Nobel (the only British holders are Lord Foster and the late Sir James Stirling). In this action Mr Koolhaas stands accused of plagiarism in his designs for the Kunsthal in Rotterdam. The accusation goes beyond plagiarism, for he is accused of surreptitiously and dishonestly making or obtaining copies of the claimant's plans and using these directly in the design of the Kunsthal by a process of cutting and pasting. The accusation extends beyond Mr Koolhaas to the project architect for the Kunsthal, Mr Fuminori Hoshino. Since both of them absolutely deny any use whatever of claimant's designs, they in addition necessarily stand accused of deliberate perjury.
- I state my conclusion at the outset: the case has no foundation whatsoever. It is one of pure fantasy - preposterous fantasy at that. The Kunsthal owes nothing to the claimant. I very much doubt that Mr Koolhaas ever saw the claimant's plans. But even if he did so briefly, I am quite satisfied he never copied them, either "graphically" or in any other way. I am quite sure that Mr Hoshino (an impressive witness who now has no working connection with Mr Koolhaas) never saw or heard of Mr Pearce or his plans until this case started. The case of the claimant, Mr Pearce, has not remotely been made out even to the point when such "similarities" as there are call for explanation. Moreover I am quite sure that the Kunsthal was the completely independent and creative work of Mr Koolhaas assisted by Mr Hoshino.
- The case commenced in 1996. It is advanced not just against Mr Koolhaas and his Dutch firm of architects, the third defendants (whom I call "OMA Rotterdam"). Joined in are also the consulting engineers, Ove Arup (the 1st defendants) and the City of Rotterdam itself (the 4th defendants). The defendants initially applied to have the case struck out on two bases. First it was said that the court had no jurisdiction over the claim: in its essence it is a claim of infringement in Holland of Dutch copyright. Secondly it was said that the claim had no realistic prospect of success. Lloyd J held that there was jurisdiction (on the basis of the Brussels Convention) but that the claim itself amounted to an abuse of process  Ch. 293. The Court of Appeal upheld Lloyd J on the question of jurisdiction (on an even wider basis than he had held) but reversed him on the question of abuse of process and ruled that the matter should come to trial,  Ch. 403. The ruling was, of course, under the pre-CPR rules when the standard for strike out was the higher "abuse of process" test rather than the present "realistic prospects of success" test.
- Since the 1st and 4th defendants are in no way responsible for the design of the Kunsthal, their presence in the action is irrelevant to any question of liability. Ove Arup was probably joined for jurisdictional reasons. I have no idea why the City was joined too. The parties agreed a consent order of 18th December 2000 which stayed the action against the 1st and 4th defendants and provided for the determination of the following preliminary questions:
(a) whether copyright and/or moral rights subsist in the Docklands Plans as original artistic works pursuant to Dutch law;
(b) if yes to (a), whether the Claimant was the author of the Docklands Plans;
(c) if yes to (a) and (b) whether the Kunsthal, and/or the design drawings for the Kunsthal (or any of them) infringe the Claimant's copyright in his Docklands Plans, or infringe any of the Claimants' moral rights subsisting in the Docklands Plans, pursuant to Dutch law.
- Following exchange of witness statements the issues narrowed further because the defendants accepted that under Dutch law copyright and moral rights subsist in the DTH plans and belong to the claimant. The concession was subject to the qualification that it was not thereby admitted that copyright under Dutch law exists in such elements as a pedestal and slab or in the individual elements set out in the Particulars of Similarity such as the alleged square or triangle.
- Like our law, Dutch copyright and moral rights depend upon copying. The parties' respective Dutch law experts, could not, however, completely agree the effect of Dutch law. Their difference lies in the nature and degree of copying necessary for a finding of infringement. Whilst the case was proceeding I was told that the difference had narrowed but that there was one point which could not be agreed. I asked the parties whether, in view of the fact that Dutch law required some degree of copying for a finding of infringement, it would not make sense for me to make my findings on this point first. The Dutch lawyers could then consider whether or not, in view of those findings, they disagreed as to their effect in Dutch law. The parties consented to this course. So it is that what has always been the real point of the case has been isolated. That real point is, of course, did Mr Koolhaas copy or not? In the event, given my firm rejection of any copying whatever, the Dutch lawyers' evidence has proved unnecessary.
- The claimant, Mr Pearce, is a qualified architect. But he is virtually unemployed, and has been so for some years. He currently is trying, through a company formed by him, to do some work on urban monorail systems. The Legal Services Commission funds his litigation. He took his undergraduate degree in architecture at Birmingham University from 1979 to 1982 and obtained his Diploma in architecture from the well-known Architectural Association in London (called by everyone "the AA") which he attended from 1983 to 1986. His final year project was a design for a putative town hall in Docklands. It is the drawings for this ("the DTH plans") which are said to have been used in the design of the Kunsthal. His work consisted of a series of paintings showing the building on site, site plans, floor plans, cross-sections and some perspective drawings of, for instance, the approach to the building, the Court Hall and the view from a proposed public garden. There can be no doubt that Mr Pearce worked very hard in producing his designs.
- I turn to describe the proposed DTH. In preparing this description I have been greatly aided by the model produced by the defendants for this trial. The model (along with the model of the Kunsthal) was not available to the Court of Appeal. The model is quite accurate, though no one suggests that it is precise.
- The proposed DTH building itself would be a very substantial building of generally rectangular shape in plan. The dimensions of the rectangle are roughly 80m.x 46m. The building stands over a vertically stepped site. The step runs through the middle of the length of the rectangle and is about one storey high. The main part of the building (called in the case "the pedestal") is a flat building 2 storeys high. Throughout its length it overhangs the lower half of the step by half its width. The overhanging portion is open to the air and is supported by "piloti" - an architectural word for external columns which support substantial structures so as to make them appear to float. The general effect is that, viewed from that long side, the DTH would appear to "float". I shall call that side the "front" of the building and try to describe everything from that point of view. Mr Pearce envisaged a pedestrian walkway under that part of the building. Pedestrians would walk amongst a forest of piloti. Under the right-hand side of the building a pedestrian would encounter a square pool of water, above which there would be a corresponding square cut-away opening through the building to the sky. This would let light into the walkway and, of course, into the building itself.
- At the left-hand end of the building, on top and in the middle of the shorter side, Mr Pearce placed a substantial 6-storey, mainly glass, rectangular office block, intended as a police station. This block (called "the slab") was intended to float on piloti above the pedestal. It is about 24m. wide, 6m. thick and 22m. high (I ignore excrescences such as the lift column). So Mr Pearce's plan had both pedestal and slab on piloti - a floating slab on a floating pedestal.
- To get into the DTH itself, Mr Pearce devised a double ramp structure. If you view this structure in plan it is essentially a thin (about 15°) right-angled triangle, the apex of which has been cut off to form the beginning of the lower ramp at ground level. The hypotenuse of the triangle leads off to the right. The ramp starts just before the front of the building, its left-hand side being about 18m. from the left-hand end of the building itself. The "cut" of the triangle" is about 3m. wide. As you go up, the ramp widens out to your right until you reach a flat portion at the first main floor level. By now the triangle is about 6.4m wide. The way now divides. You can go right on a flat portion to the main first floor. Or you can proceed up a second ramp to the next floor. The second ramp is also triangular in plan, repeating the first ramp but starting with a greater "cut" of its apex. It starts at about 5m. wide and reaches the second floor at about 8m. wide.
- Mr Pearce's triangle is not limited to the double ramp structure itself. For at the second floor is a lecture theatre or concert hall which itself is, in plan, a continuation of the triangle which starts at the entrance. If one looks down on the model this triangle is clearly apparent. Part of it is open to the sky: the building is "cut" above the triangle until one gets almost to the top of the second ramp. And the roof of the hall itself stands a little proud of the flat roof and continues the plan shape of the triangle. The hall itself projects a little beyond the back wall of the building.
- I now turn to Mr Koolhaas, and London OMA and what was happening there in late 1986-early 1987. That is when Mr Pearce contends that his DTH plans were surreptitiously copied. I begin with Mr Koolhaas. Although Mr Pearce (and the expert architect witness called by him, Mr Wilkey) sought to downgrade Mr Koolhaas' fame and significance in 1986, I am quite satisfied that at the AA he was regarded as a very considerable figure. Mr Koolhaas was himself a graduate of the AA and had taught there from 1976 to 1979. No less than four of his former students, including Mr Wall (who had been Mr Pearce's tutor for the DTH project) had taught Mr Pearce. In 1978 Mr Koolhaas had written an acclaimed book, Delirious New York. He was not just a "theoretician" as is now suggested. By 1986 he had been concerned with two practical offices which had designed many buildings by way of competition. One major building of his design had been built (the Netherlands Dance Theatre) and he had won a competition for the extension to the Dutch Parliament in The Hague - a design given much prominence in the architectural press.
- In the 1970s Mr Koolhaas set up a partnership in London with a Mr Zenghelis. It was called the "Office for Metropolitan Architecture" ("OMA London"). In 1980 he ceased to be a partner as such. What he did was to set up a partnership in Rotterdam. It had effectively the same name (Office for Metropolitan Architecture, "OMA Rotterdam"). From then on, although his home and family were in London, Mr Koolhaas' principal place of work was Rotterdam. It seems clear that everything was very informal - there were no partnership agreements or the like. Mr Koolhaas continued to be on good terms with those in the London office and used to go in there every other weekend or so. Miss Clark submitted that he had, in this litigation, sought to distance himself from the London OMA. I reject that. Mr Sauerbruch, who was at London OMA at the time, confirmed that Mr Koolhaas was only there at weekends "maybe every second or third weekend". It is plain he was there from time to time but it was not his office any more. He went there to discuss and share ideas. He is a man driven by his enthusiasm for his subject. Mr Hoshino painted a vivid picture of working with him in Rotterdam in the late 1980s:
"I was astonished how he could deal with so many people. I cannot prove how much he was involved or how seriously or how he defined these projects, but I was astonished that he had a series of meetings every day from (I do not know) 9 o'clock to 5 o'clock or, sometimes 8.00. I asked Rem, "How do you deal with it?" He answered me; "It is like playing chess with 20 people at the same time. You make one move and you leave other people to think and you go to another table and another table." That is how he did it. It is unbelievable to deal with so many people but he was doing it and that answer explains maybe somehow. I do not think I can do it but I think he was doing it."
- In support of the "distancing allegation" (the precise point of which I never understood) Miss Clark relied on three other matters. First there was a compliments slip of the London OMA office given to Mr Pearce in 1986. This named Mr Koolhaas as a partner along with Mr Zenghelis, the co-founder of London OMA. Of this Mr Koolhaas said:
"Yes, I think this is a letterhead that we had. What is very important to say is that Mr Zenghelis and myself remained on friendly terms at least until 1987, and that we had worked together on the development of what now could be called a brand, B-R-A-N-D, a name in architecture and that I was also, when I was in London, occasionally kind of looking at the work they were producing as a kind of friend and advisor. So there was no reason, strictly speaking, to take my name off there."
- The use of this slip by those in London OMA is not a matter for which Mr Koolhaas was responsible. Whether or not it was old stationery is a matter of speculation - neither Mr Wall nor Mr Sauerbruch, who were there at the time, were asked about it. Miss Clark pointed out that Mr Zenghelis was not called - but since both Mr Wall and Mr Sauerbruch could have been asked, this point of trivial significance has no weight at all.
- Secondly there was the fact that others at London OMA (Mr Wall, Mr Sauerbruch) were prepared to give Mr Koolhaas credit for two pieces of work done by London OMA. These were the Checkpoint Charlie project done during the course of 1986-7 and an unsuccessful (but "near miss") competition entry done in 1985 for the "parc Cevennes" (also called the Parc Citroen) in Paris. Mr Koolhaas himself did not think he deserved any credit for these and never himself claimed any. But, given the informal way things worked at London OMA, and the fact that Mr Koolhaas may well have made suggestions during one of his weekend visits, I see nothing significant in any of this.
- I would add this. There was a serious allegation by way of an attempt to smear Mr Koolhaas' character. It was said he claimed credit for himself for work done by others. It turned out to be entirely untrue - indeed precisely the opposite - others were prepared to give him credit when he himself did not think he had done enough to deserve it. A Miss Siri Tenden, called to support the allegation, turned out to be a most unsatisfactory witness. She suggested that she had seen a letter containing the allegation written by Mr Sauerbruch. In the end she had no idea whether the alleged letter had ever been published (having said originally that it had been). She withdrew the suggestion she had seen it and said Mr Zenghelis had read it out to her. Mr Sauerbruch refuted the suggestion of ever having written any such letter. His evidence on this point was not challenged. The allegation was, moreover, inconsistent with the "distancing allegation": on the one hand the suggestion was that Mr Koolhaas was really having much more to do with London OMA than he was prepared to admit and on the other that he was claiming credit for work done at London OMA when he had no input into that work.
- Before returning to Mr Pearce's allegations I should deal with one further smear sought to be put on Mr Koolhaas' character - that he was in the habit of taking other people's work, cutting it up and using it for his own work. Mr Wall, Mr Sauerbruch and Mr Hoshino refuted the allegation. Mr Pearce alleged this was a practice at London OMA, and by inference I was supposed to assume that Mr Koolhaas did it too. I reject the allegation. It was never shown that Mr Koolhaas had done anything of the sort. The most that was shown was that sometimes, at the very beginning of a project, some at London OMA (not Mr Koolhaas) would copy a published drawing or picture of an existing building to see how it would "sit" on a proposed site - a sort of ranging exercise. Nothing of the sort of cutting and pasting alleged here was ever proved. I must return to the quality of Mr Pearce's evidence shortly.
- Finally I should mention one other, trivial, allegation against Mr Koolhaas. Although he obtained his Diploma in Architecture at the AA he never went on to complete what is called the Part 3 examination of the Royal Institute of British Architects (RIBA), an examination in professional practice. It follows that, according to the rules in place, strictly speaking he is not entitled to call himself an "architect" in this country. I am not clear that he ever has, and in any event the point fell to pieces during the run up to trial when Mr Koolhaas was made an Honorary Member of the RIBA.
- So, in mid 1986, London OMA consisted of a small informal office with relatively few people there. I heard from two of them, Mr Wall and Mr Sauerbruch. Knowing that London OMA had a connection with Mr Koolhaas, I have no doubt that when Mr Pearce got an opportunity to work there he hoped to be noticed. He first helped, as a modelmaker on the Parc Citroen project whilst he was still at the AA. In late 1986 he was again engaged as a modelmaker, this time for the 3-dimensionally more complicated project of Checkpoint Charlie. He claims he was repeatedly asked by Mr Wall to do this. Although he has no specific recollection Mr Wall very much doubts that - newly qualified students need work. I share Mr Wall's doubts. Whatever the position, Mr Pearce came to OMA London to work on the Checkpoint Charlie model. It was not a successful relationship. Mr Pearce walked out in January. On 17th February 1987 Mr Sauerbruch wrote to him as follows:
"I am very sorry that our collaboration reached such an unfortunate end. However your complaints don't seem to be very reasonable: Our arrangement was that you would build a model for the lump sum of £600. You had sufficient time and opportunity to study the building in question before you decided to take this job and you knew the standard of detail involved in a OMA-model from previous work at the parc Cevennes-scheme. I did allow you to work flexible hours according to your own pace but we agreed that the work should be concluded by Christmas at the latest. This was in mid-October 86.
When you walked out of the job by the end of January 87 the model was not complete. And this is due to the fact that your work hours have been very erratic, your methods inefficient. On top of that we had to find out, that the standard of your work was far less than average as we tried to assemble the pieces made by you: Nothing fit together, there were endless inaccuracies and it took a team of three two weeks just to make good what was supposed to be ready to be mounted together.
We would have all reason not to pay you the agreed fee since you broke the agreement and we had to employ extra help to finish a model which due to your incompetence turned out to be much less satisfactory than anticipated.
However, I know that you depend on the money and therefore please return the enclosed invoice with your signature and the office key and I will send you a cheque. The amount you charged for your expenses you find enclosed.
Again I would like to emphasise my regrets, that this cordial collaboration had to come to such an end. But it is obvious that due to reasons stated above and also due to your very unreasonable and arrogant behaviour we are not interested in any further help from you which you generously offer in your letter."
- Mr Pearce said he only got that letter after he had been paid and that he "considered it a knife in thrown in my back". I have to say that I think Mr Pearce here, and in many other parts of his evidence, has developed a perception which does not accord with the facts. Mr Sauerbruch said he would not have paid Mr Pearce until he got the office keys back. The letter makes no sense if Mr Pearce had already been paid.
- Another example of Mr Pearce's misplaced perception and emotional approach lay in relation to the circumstances under which left OMA London. Both Mr Wall and Mr Sauerbruch said his work and attitude was unsatisfactory - as indeed Mr Sauerbruch's letter said. Mr Pearce was quick to blame others, saying the trouble was constantly changing design. That cannot be an explanation for his erratic hours. I prefer the evidence of Messrs Wall and Sauerbruch. It was put to him that he had been asked to leave. He reacted angrily:
"A. This is an absolute lie. I was never asked to leave at all. That is absolutely a lie. I feel absolutely furious about that.
Q. Mr Wall is going to come. I imagine he is going to say it is true, but I want to put it to you so that --
A. I am telling you that he is a bare-faced liar - a bare-faced liar. I was never asked to leave."
In the end Mr Wall could not remember whether Mr Pearce had been asked to leave or had refused to come back. It does not really matter. What matters is his over-emotional reaction to this entirely peripheral point.
- Again, Mr Pearce speaking of Mr Wall said:
"As a tutor he is very good, but as a teacher I do not think he has anything to teach, and they are two different roles".
"A tutor is someone who encourages you. A teacher is someone who actually teaches you something. I had a great deal of encouragement from Mr Wall, but he did not actually teach me anything."
- That evidence is quite inconsistent with an unsolicited e-mail which Mr Pearce sent to Mr Wall on the latter's appointment as Professor in Karlsruhe. It was headed "sincere apology for bad behaviour" and includes the following passage:
"During that year [i.e. Mr Pearce's final year at the AA] I enjoyed contact with you much more than the previous spell had permitted. I reap the reward daily of the thorough investigative approach to design you imparted through your teaching."
- Mr Pearce is evidently an emotional man. He gave his evidence with vehemence, indeed sometimes anger. I have to say that much of it was not believable. In particular his account of the circumstances in which he took his student Docklands project to OMA does not have the ring of truth. He said that Mr Wall asked him to bring the project in to OMA so that it could be shown to a Mr Allen. He says he brought it in on a Friday and that Mr Wall asked him to leave it there because Mr Koolhaas wanted to see it. He says he was reluctant to leave it there because the project was precious to him. I do not think anything of the sort happened. Mr Wall and Mr Koolhaas both indicated that students were anxious to show their work. I do not think Mr Koolhaas knew anything about Mr Pearce's student project and it is wholly improbable that he could have asked to see it. Much more likely is that Mr Pearce left it, hoping that it would be noticed.
- Mr Pearce says that when he came back on the Monday morning his paintings were carelessly strewn together and that his detailed drawings were all rolled up as they could have been if they had been returned from a dyeline printer office. He infers that his plans had been surreptitiously copied over the weekend. He claims that two drawings were missing. Yet he never complained at the time either about the condition of his drawings or the missing drawings. His suspicion that there was copying is all pure fantasy. Assuming he left the drawings, anyone who wanted to have them copied secretly would not have left them as Mr Pearce suggests. Moreover, no particular motive for this alleged copying was advanced.
- Mr Pearce also alleges a wholly improbable meeting with Mr Koolhaas. He says:
"One particular day when Mr Koolhaas was upstairs in the OMA London offices, Alex Wall came downstairs and told me Mr Koolhaas wanted to see me. This was after I had left my Docklands plans at OMA, as described above. I went upstairs, and Mr Koolhaas showed me the plans for his competition design. He asked me what I thought of them. I made a negative comment, and he seemed angry at what I had said. I then returned to my work downstairs. This was the only occasion on which I actually met Mr Koolhaas."
- Mr Koolhaas denies ever meeting Mr Pearce and thinks he would have remembered him if he had - certainly Mr Pearce is a person who wishes to make his presence felt. The story of the meeting and Mr Koolhaas' desire to obtain the opinion of this student modelmaker is incredible. I reject it. Mr Koolhaas very fairly says he could not be entirely sure that he never saw Mr Pearce's plans if they were in the OMA offices. It does not follow that he did. So not even the first link in a chain of causation is proved.
- Yet another absurd part of Mr Pearce's evidence is in relation to his first idea that his Docklands project had been stolen. He says that he visited Rotterdam in 1992 by which time the Kunsthal was being built:
"I happened, by chance, to have sight of the Kunsthal and was immediately struck by the striking similarities between it and my Docklands Project. What particularly struck me was the use of the slab as a vertical element on a horizontal podium. This had been an architectural design feature that appeared during the 1960's. I had used this feature in the Docklands Project as a return to investigating if there was anything of value left in modernism."
- In my opinion only a fevered imagination could lead one to the idea that the vertical slab of the Kunsthal had a "striking similarity" with the vertical slab of the DTH or that there had been copying. Mr Pearce's slab is, as I have described, a six-storey office block floating at the end of his building on piloti. The "slab" of the Kunsthal is much lower and much thinner being just a vertical structure containing lift gear and air conditioning equipment. It is not at the end of the building but offset from the centre. Mr Koolhaas provided a good word for it: it is "fin-like".
- Mr Pearce goes on to relate how, when he went round the Kunsthal, he became more concerned that there had been copying. Well, I have been round the Kunsthal, I have a model of it and I have a model of the DTH made from Mr Pearce's drawings. The buildings are simply nothing like each other. Mr Pearce seemed to think that because the Kunsthal has a ramp it must have been copied from his ramps. But the ramp (or rather the complex three ramp-structure) of the Kunsthal are nothing like the ramps in Mr Pearce's design.
- I must now explain in more detail the design of the Kunsthal. Initially I proposed to do so by annexing copies of drawings, along with copies of Mr Pearce's drawings. I have decided it is not useful to do so. Even if I used many drawings it would not be possible to do the job for the untrained eye. For the drawings alone are not easy to follow: the Kunsthal is not a building one can show by plan views of each floor. Mr Hoshino gave a colourful and fair analogy when he was describing how he and Mr Koolhaas worked on the design:
"The difference between the 3D and 2D is like in music, the difference between a musical note and the actual music. What we are aiming at is what we are going to have in 3D. However that is very vague and we cannot grasp it so he used other material. So he presented his model. It is super important to make the model and to judge it: to discuss if it is right or not or "It should be more like this". That process is the most creative, I think. Of course, to make the model we need to make some kind of drawing hoping that this is what we want. Rem did not make any precise drawing but does not mean that Rem did not have creative input. He is the author of the building and that is a different story."
- Accordingly I propose to use mere words, as best I can. The Kunsthal is adjacent to the Westzeedijk. This stands about 6m. higher than the adjacent parkland. A design requirement was that a means of pedestrian access from the dyke to the park should be provided. In the ultimate design this is provided by a 9m. wide ramp running through the Kunsthal at right angles from the dyke down to the park. The Kunsthal is essentially square, based on a 60m. site. One side of the square stands hard by the dyke. Within the squat, square shape is a building of extraordinary complexity. Mr Koolhaas describes the position as follows:
"In order to understand a design as complex as the Kunsthal's I think it is necessary to conceive the building, and in particular its interior space, in three dimensions. The building was from the outset designed and conceived by me as a volume and I cannot imagine, looking at the final design, how it could have been created otherwise. This is important since the Kunsthal is to be distinguished from, for example, a typical modernist office tower, which might be seen primarily as a superposition of repetitive floor plans."
"It may well be difficult, especially for a person not trained as an architect, to gain a proper understanding of the Kunsthal's complex internal space without actually visiting and walking through and around the building."
- That observation is undoubtedly true. The key to its structure is the use of three-interrelated ramps:
(1) the dyke/park ramp;
(2) the auditorium ramp;
(3) the roof garden ramp.
All three ramps are of fixed cross-section - there is no triangular widening out which is the key feature of Mr Pearce's ramps and design. The dyke/park ramp runs over a service road running along the base of the dyke. The road runs under the building and was a pre-existing feature which had to be allowed for in the design. By putting it under the ramp and building, Mr Koolhaas has effectively "buried" it. The auditorium ramp is the rake of the auditorium. It is adjacent and parallel to the dyke/park ramp but slopes the other way from the first floor down to the road. They are at the same height halfway up the dyke/park ramp. It is at that point that one enters the Kunsthal, into the auditorium. Finally the roof garden ramp lies above the dyke/park ramp but at an angle so that it forms a long parallelogram.
- Each ramp is used in several ways. The auditorium ramp is not only the rake of the auditorium but one side of it forms part of the route through the building. Most of the overall width (9m.) of the dyke/park ramp forms the walkway from dyke to park. But 2.5m. is enclosed by a glass wall, forming a ramp within the building which ascends from the ground to first floor. The roof garden ramp starts at the top of the auditorium. It is partly stepped and enclosed within the building but its main width carries growing plants. Because it is angled it cuts into the upper part of the route through the auditorium. And because it is angled it lets light both into the building and above the walkway of the dyke/park ramp.
- Mr Koolhaas, by reference to some pictures in his 1995 book "S, M, L, XL" describes the spiral circulation within the building - a circulation which has no counterpart in the DTH.
"The series begins with photographs of the exterior of the building taken from the dike, showing the pedestal and the slab. The reader is then taken to the ramp which dissects the building and which also serves as its entry point. The first ramp, which slopes from the dike down to the park, is divided by a glass wall such that it serves as an external connecting passage between the park and dike, an entrance to the building and an internal space. Walking from the dike down the external walkway towards the park, at about its mid-point one finds (on the left) the entrance I have mentioned. Upon entering one immediately confronts an auditorium. This auditorium, for functional reasons (i.e. so that audience gets unobstructed views), is also set on a ramp, but this time sloping in the opposite direction to the external walkway. If one walks down this second ramp (keeping to the left of the seats in the auditorium), turns left at the bottom, walks a small distance and, turning left again, goes down a small flight of steps, one comes to a hall which faces the park. This lower hall has a "forest" of five columns. Walking through the lower hall towards the park and turning left again at the end (i.e. continuing in a circular route through the building) one rediscovers the initial ramp. Walking back up the ramp towards the dike, this time on the inside of the glass wall, and turning left at the top, a second, brighter hall is reached. This hall faces and is roughly on the same level as the dike. Walking through the hall back towards the park, keep going left and exiting under a suspended "balcony", a third ramp is reached just before an entrance to the auditorium. This ramp is the "roof" of the first ramp and is set diagonally to the first ramp, permitting light to enter the external passageway. Walking up this third ramp and turning right half-way up one emerges on a platform that protrudes into the third hall. The third hall, which is lower, more intimate and without daylight, connects to the suspended "balcony" over the second hall. Walking further upwards over the third ramp one accesses the sloping roof garden."
- Mr Wilkey, the architect who gave "expert" evidence for Mr Pearce, suggested that the spiral circulation of the Kunsthal is a post-copying rationalisation. I found that suggestion, together with a lot more of Mr Wilkey's report, fantastic. To suppose that the spiral circulation of the Kunsthal is an "accident" is just absurd. The whole point of the building is as an exhibition space. It is self-evident that the designer of such a building must think deeply about how people are to move about within it - moving from exhibition space to exhibition space.
- How then is the case for Mr Pearce put? It runs something like this. There are such similarities between the Kunsthal designs and the DTH plans that an inference of copying arises. And Mr Koolhaas' and Mr Hoshino's account of independent design is so incredible as not to be believed.
- I begin therefore with the "similarities" relied upon. Do they raise a prima facie case of copying? Originally there were 52 similarities pleaded - similarities identified by Mr Pearce before Mr Wilkey came to consider the matter. Mr Wilkey was not prepared to rely upon all 52 - though why he abandoned some and retained others never made any sense, as I shall demonstrate.
- It is convenient to divide up the allegations into three levels of generality. The first is that which I have already mentioned, namely the pedestal and slab. I have little to add about this - they are obviously vastly different. However I should mention two further points which serve to demonstrate Mr Wilkey's unbalanced attitude. First it seemed to be his expert opinion that any "slab" on any pedestal would be an indication of copying. I say this because of what he said about model A. During the course of the design process Mr Hoshino made a series of 9 models called A-I. Model A was the first. It was for a 60m. square set away from the dyke. In the centre of the square was a large cube which could go up and down. When up it would project out of the square. Mr Wilkey said that projection - as it appears on model A - was an indication of copying. If that were so, any block, on any pedestal would, to him, but to no impartial observer, serve as such an indication. Secondly there is his attitude to the "AMC" drawings. These were design drawings for the Kunsthal which appeared in a magazine in 1989. By then the design was virtually completed though in the event some minor features were different in the ultimate building. One of these features related to the "slab". The AMC drawings show two block sections protruding above the roof, one where the actual block turned out to be and the other in a corner. Mr Wilkey characterised this as a "mistake". But he failed to draw a much more important inference; namely that the designers had put in two blocks and so could not be copying Mr Pearce's block or even the idea of it. [Actually, there was no "mistake". The corner block was for the lift gear for a second lift which, in the event, was omitted.]
- The next two levels of "similarity" require prior explanation. The Pearce drawings are at a scale of 1:250. The Kunsthal drawings are at 1:200 (though there were some early drawings at 1:500). Mr Pearce's case is that shapes and measurements on his drawings were simply copied when the Kunsthal drawings were made.
"My claim arises out of the manner in which I believe my plans were copied, namely by dyeline copying, photocopying, simple tracing or possibly electronic scanning. All of these processes would result in the reproduction of my plans as graphic works. The copied plans would then provide a basis for a "cutting and pasting" operation, in which modifications could be made by moving features or elements of my plans. The use of this technique is, I believe, the most likely explanation for the striking and exact similarities between both major and minor dimensions in the plans. It is even less likely to be coincidental when the fact that the two sets of drawings are at different scales is taken into account."
"I emphasise that my complaint is of copying my plans as graphic works. The fact that the dimensions taken have ultimately had different functions in the final design is therefore irrelevant."
- The full implications of this need to be spelt out. Suppose a particular dimension, say 1.0cm. on the Pearce drawing has allegedly been copied. The allegation is that it is copied as 1.0cm. on the Kunsthal drawing. The Pearce 1.0cm. would represent a distance of 250 cm. in the actual DTH, whereas the 1.0cm. on the Kunsthal drawing would represent 200 cm. on the Kunsthal itself. Mr Koolhaas described the difference as involving a "special Pearce factor": if you copy a Pearce dimension on the Pearce drawing to a drawing for the Kunsthal, you get a reduction of the distance represented by a factor of 200/250, namely 0.8.
- Another important matter is the accuracy of the comparisons. One has to take the measurements from the drawings. Two possible sources of inaccuracy arise. First there is the question of whether you measure from the inside, outside or middle of a line. And secondly there is the question of the accuracy of the drawings themselves. For in nearly all cases copies of drawings have been used sometimes at an enlarged scale. It is now common ground that photocopying produces distortion. The result of all this is that one cannot say with great precision that one dimension on one drawing is "the same" as that on the other. For the Court of Appeal Mr Pearce produced a "Portfolio." This consists of pairs of transparent copies of the Kunsthal and Pearce plans to show some of the similarities relied upon. For each pair he coloured in purple the portions relied upon. If you overlay one over the other you get a near exact fit. But it is now apparent that this gives a false impression. The Kunsthal copies were greatly enlarged from the AMC plans. The Pearce drawings were taken from the original plans but, surprisingly, display more distortion even though there is not the same degree of enlargement. Professor Dijkstra (the careful and balanced expert called for Mr Koolhaas) thought that the degree of distortion of the Pearce drawings was more than could be attributed to photocopying. He was not prepared to attribute blame for this and nor am I. It is sufficient to observe that what the Court of Appeal was presented with, namely a near exact fit of overlays, gives a false impression.
- The next level of generality is in two dimensions only. It thus ignores the essentially three-dimensional nature of the Kunsthal. It is said to be the use of a square and rectangle with a triangle in between. Mr Pearce says his building is based on the use of a square, a triangle and a rectangle and that what was done was to cut up his drawing into those elements. Then, he says, they were used in the same order in the Kunsthal, though the triangle was turned over, moved laterally and truncated. I am quite unable to see how that alleged process could be done so as to lead to the design of the Kunsthal. No-one ever explained how this 2D process could begin to lead to the complex 3-ramp structure of the Kunsthal. The Court of Appeal expressly indicated that expert evidence as to how architects think conceptually might assist. Even so, none was forthcoming from Mr Wilkey.
- Actually all these shapes are mere arbitrary constructs as far as the Kunsthal is concerned. This is most obvious from the "Booklet of Alleged Similarities" prepared by the defendants. Although this contains some undisputed minor errors (which I have taken into account) the Booklet identifies the alleged similarities extremely well. The Booklet covers all 52 of the originally pleaded Particulars of Similarity which include all those in Mr Pearce's Portfolio. The rectangle is Similarity No. 5. Its longer side is said be from the back of the auditorium to the foot of the raked portion upon which there are "steps" for the seats. Actually, the auditorium is longer than that since it has a flat area below the seating where the lecturer stands. As for the width, this is taken from the far side of some columns in the Kunsthal by the external glass wall to the inside of some columns on the other side. So, by taking some arbitrary points in the Kunsthal one can arrive at a similar rectangle, even though architecturally there is no such rectangle. The point seems even more farcical when one considers that the dimension is the plan dimension of what in the Kunsthal is really a raked area. I never remotely received an answer as to how the supposed copying would assist in the design of the Kunsthal.
- As for the triangle (Similarity 6), again it requires the eye of a fundamentalist faith to discern it in the Kunsthal. Mr Wilkey, on the site visit, pointed a triangle out to me. But he got it wrong. It is another, congruent, "triangle" which is relied upon. Actually even the shape relied upon is not really a triangle. It is just a trapezium formed (in plan) by the angled roof garden ramp. Moreover even the angle of the triangle is not the same as that of Mr Pearce, though it appears to be so from the Portfolio put before the Court of Appeal. There is about a 1.5° difference on the sharp angle which itself is about 15° - a 10% difference. Again I cannot imagine how anyone, basing themselves on Mr Pearce's triangle, could come up with the Kunsthal trapezium.
- Finally there is the square (Similarity No. 7). On the site visit Mr Wilkey initially got this wrong. If he had not been an expert witness supporting a very serious allegation of piracy he might have been forgiven. For the "square" simply forms no part of the Kunsthal. You have to construct it notionally from the glass wall dividing the dyke/park ramp, the adjoining glass wall facing the park, part of the adjoining external wall on the far side of the dyke, and the line parallel to the park-facing wall. The dimensions are not exactly the same in any event. Mr Wilkey made no attempt to show how the alleged taking of this "square" could have helped in the design of the Kunsthal. Take for instance the passageway up the dyke/park ramp. Why would taking that in as part of the "square" help the designer with this?
- The last principal group of similarities (by far the most numerous) relate essentially to features which are said to be dimensionally the same in both buildings. But they are bizarre because they do not relate to similar features in the two buildings. For instance, balconies in the DTH are compared to stairs (No.11) and a proposed indoor garden (No.9) of the Kunsthal, the length of a pair of courtrooms plus a reception area in the DTH to the length of the seating area in the Kunsthal auditorium, (No.24), the length and width of the 2 witness stands in the DTH courtrooms to the entrance "apron" for the Kunsthal (No.17). There is much more of the same sort. They are all, as the late Lloyd-Jacob J used to say, "comparing apples with Thursdays." I do not intend to go through all in this already-over-long judgment. I will take a few; particularly those relied upon by Miss Clark.
- Similarity No. 9. The DTH is provided with a balcony at front and rear. Here the comparison is between the full width of that balcony (the internal and jutting out bits of the balcony) and the width of a proposed feature of the Kunsthal which was omitted from the final design but is shown in the AMC drawings. The feature was to be a "wintergarden" running at first floor level facing the park and extending across half the room. The length of the wintergarden is supposed to be taken from the one end of the balcony to the external side wall on the other side of the balcony. Why anyone considering a wintergarden would want to take those dimensions, or even could accidentally take them, was never explained - still less so given the "special Pearce factor."
- Similarity No. 11. This relies on the other DTH balcony. This time only the jutting out width is used for the comparison. It is compared to a small flight of steps in the Kunsthal. The comparison has only to be stated to be seen as absurd. Steps are for getting up and down. You need to know the height and then to put in enough steps of appropriate width and height. That gives you the width. Starting with part of the dimension of a balcony (shown on a different scale) would be an insane way of proceeding. And why should anyone get any help for the length of the stairs from the length of someone else's balcony on a different scale?
- Similarity No. 20. This is a pure dimension rather than a shape. The length of the service core in the DTH is compared to the length of a service core containing quite different equipment in the Kunsthal. Again one wonders how, supposing copying, it could have been done. Was the Kunsthal equipment so chosen that it, together with a duct, would have the same dimension as that shown in the DTH plan, allowing for the Pearce factor? And why only the length and not the width?
- Similarity No. 31. The corners of the square forming a pool on the ground floor in the DTH is said to be taken exactly for the centre points of the large columns in the right hand side of the Kunsthal. The pool feature of the DTH lies under the portion of the plinth part of the building supported by piloti. There are no piloti at the corners of the pool. The columns of the Kunsthal are structural members within the right hand side of the Kunsthal supporting the roof. Ultimately 5 rather than 4 were used - the AMC plans show the 4 relied upon. Mr Wilkey accepts that the two features are wholly unrelated. He adds:
"The 4 columns are in the same position as the pool in the Docklands forming the same geometric shape. The position of the columns and pool are in a different position within the overall building: however this is a similarity of dimension."
- It never seemed to enter his mind that it would be nonsensical to use the corners of a square pool of one design for structural elements of another, whatever the scale. Yet you do not have to be an architect to recognise the absurdity of the comparison as evidence of copying.
- I do not go on with this, for the points are essentially the same in the case of all these comparisons. It suffices to say that not one makes sense individually. Mr Wilkey accepted that unrelated features are being compared. But he adds, time after time "however there is a similarity of dimension" as though that alone could lead to an inference of copying. It is because the abandoned Similarities also have "similarity of dimension" of unrelated features that I do not understand why they were abandoned yet other, exactly similar sorts of similarity, were retained. There is neither rhyme nor reason in it. At no point did Mr Wilkey begin to consider, as an architect, how, supposing use of the DTH plans, the copying could happen. If you were trying to take these particular dimensions you would have an enormously difficult task in creating a very different building - they would be restraints on your thinking rather than aids. Mr Wilkey suggested you might save time - but conspicuously failed to explain how.
- Before parting from these dimensional similarities I should deal with one other point. It is submitted that whilst alone they might amount to mere accidental coincidence, collectively there are too many for this to be an explanation. I disagree. You can make thousands upon thousands of measurements between various points in the DTH and similarly for the Kunsthal. Some are bound to be similar. There are likely to be more similarities over short distances because there are likely to be more short distance measurements. Such is indeed the case with the dimensional similarities relied on - there are more short ones than long ones. So the fact that Mr Pearce has identified a number of somewhat similar dimensions means absolutely nothing. It is simply not shown that there are an improbable number of "coincidences" explicable only by copying. All that has been adduced is a collection of "similarities" amounting individually and collectively to nothing.
- I am sorry to have to say that Mr Wilkey supported the allegation of copying to the point when he said that Mr Koolhaas must be lying if he said he did not copy. Now I have no objection to, and I think it is admissible for, an expert to express his opinion as to the "ultimate question" (i.e. the question the court has to decide). Indeed it can be helpful in producing a more logical structure for an expert report. But as I said in Routestone v Minories Finance  BCC 180:
"What really matters in most cases are the reasons given for the opinion. As a practical matter a well constructed expert's report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up, the opinion does, if not, not."
- Here Mr Wilkey hardly gives any reason for his opinion on the ultimate question beyond pointing out similarities. That is hardly a matter of architectural expertise. It is just matter of measurement. Even then Mr Wilkey did not point out that you could get different measurements depending upon whereabouts exactly you measured from. His measurements appeared to favour the claimant. In my judgment Mr Wilkey's "expert" evidence fell far short of the standards of objectivity required of an expert witness. He claimed to have appreciated the seriousness of what he was saying but made blunder after blunder. I list a number of them:
(a) Notwithstanding the seriousness of the allegation, he did not visit the Kunsthal before making his report yet did not mention that fact in his report. It may be that that there were funding difficulties. But it certainly would have been fairer to say he had not actually seen the Kunsthal. After all it was clear that its design as a 3D building was central to the case.
(b) He never really considered how an architect could actually have carried out the copying alleged, conceptually or by using scissors and paper or in any other way. He mentioned copying by the use of tracing paper but wholly failed to explain how, assuming tracing had been done, the copy could be used to help in the design of the complicated three dimensional Kunsthal structure. Actually he never expressly mentioned cutting and pasting (Mr Pearce's surmise) - nor if that had been done, how it could have helped.
(c) He made errors in relation to both "square" and "triangle" at the site visit and yet maintained his position thereafter.
(d) He never properly read an important document exhibited to his report. One of the similarities he relied upon to indicate copying was the orientation of the two buildings on an uneven level. Yet that was part of the design brief for the Kunsthal. Mr Wilkey exhibited as English translations of this but failed to realise, as is abundantly apparent if you read it, that it pre-dates the Kunsthal.
(e) He showed his biased attitude by looking for triangles in the early stages of the Kunsthal design ("keen to find the triangle" as it was "an element alleged to have been copied"). His keenness resulted in his misreading a drawing and finding a vertical trapezium.
(f) He appeared to think that almost any triangular (or cut off triangular) shape in the Kunsthal must be the result of copying, though the building is full of such shapes:
Q. If it is a triangle shape then it is sufficient for your inference is it?
A. Yes, it is the development of an idea that came from a triangle.
- I do not go on. Mr Waugh QC's closing written argument sets forth the shortcomings of Mr Wilkey's evidence in painstaking and exhaustive detail. So biased and irrational do I find his "expert" evidence that I conclude he failed in his duty to the court. That duty is set out in CPR Part 35 rule 35.3:
(1) "It is the duty of an expert to help the court on the matters within his expertise
(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid".
- At the end of his report, Mr Wilkey said he understood that duty. I do not think he did. He came to argue a case. Any point which might support that case, however flimsy, he took. Nowhere did he stand back and take an objective view as an architect as to how the alleged copying could have been done. Mr Wilkey bears a heavy responsibility for this case ever coming to trial - with its attendant cost, expense and waste of time, including Mr Koolhaas' loss of professional time.
- Now there is no rule providing for specific sanctions where an expert witness is in breach of his Part 35 duty. Nor is there any system of accreditation of expert witnesses such as is proposed by Lord Justice Auld for forensic scientists (see paras. 129 -131 of his Review of the Criminal Courts of England and Wales, October 2001). So there is no specific accrediting body to whose attention a breach of the duty can be drawn. Most (but not all) expert witnesses, however, belong to some form of professional body or institute. I see no reason why a judge who has formed the opinion that an expert had seriously broken his Part 35 duty should not, in an appropriate case, refer the matter to the expert's professional body if he or she has one. Whether there is a breach of the expert's professional rules and if so what sanction is appropriate would be a matter for the body concerned. Prima facie, therefore, I consider it necessary to refer Mr Wilkey's conduct to his professional body, the RIBA. But before I do so it is only right that Mr Wilkey should have an opportunity of being heard. So I intend, unless successful representations are made on behalf of Mr Wilkey in the meantime, to ask the defendant's solicitors, after 21 days from the date of this judgment, to send a copy of it, and any necessary papers, to the RIBA. Doubtless any of the models can be made available too.
- I conclude therefore and without the slightest hesitation, that a mere comparison of the DTH and the Kunsthal or any of the drawings for it does not give the slightest reason to suppose copying. On top of that, however, both Mr Koolhaas and Mr Hoshino gave detailed and clear explanations of what they did. Those explanations were principally by reference to the models A-I. They show a process of trial and error, which was entirely credible. Nothing in the cross-examination of either witness began to touch their credibility. They were both honest and reliable. I do not propose to go through the detail of the various design attempts. The use of a ramp from dyke to park featured fairly early. In a number of models it was covered over by a roof running directly over it. The crucial stage was the idea of twisting the overhead ramp to let in light (model H). It was that twisting which created, in part, the trapezoidal area alleged to have come from Mr Pearce. It had nothing whatsoever to do with him.
- Since it was particularly relied upon I should also mention Similarity 31 - the support pillars. Mr Hoshino explained exactly how he first put the 4 columns in, using a grid. He subsequently moved them for engineering reasons: ultimately those reasons dictated 5 rather than 4, columns.
- The only other point worthy of separate mention is the slab containing the lift-gear. It does not appear on any of the models - but then there is no reason why it should have done. The models were made to design the fundamental architectural structure of the building. They were not concerned with detail such as the services. Originally Mr Koolhaas wanted as far as possible to put the services in a basement. But a basement turned out to be too costly because the land was already below sea level and the cost of keeping water out would have been too much. So the gear had to go elsewhere. It was a neat solution to the problem to put it in a slab at the top rather than try and spread it around the roof - particularly since it was intended to bring in light through much of the roof. Mr Pearce's 6-storey glass office block on piloti had nothing to do with the slab of the Kunsthal.
- I should briefly also mention some non-structural items said to be evidence of copying, albeit not of the "graphical" kind which, from time to time, was said to be the heart of the case. The Kunsthal has some stonework facing on its front and across the entire back wall. The former (but not the latter) is said to have been copied from Mr Pearce. He proposed some stonework of a quite different shape on the left-hand front of the DTH. Mr Wilkey accepted that the use of a stone-faced wall is common. But then said there was an "element of graphical copying as illustrated by the position of this element in relation to the entrance and elevational treatment." It is true that both stoneworks are on the left-hand side of the respective buildings and so broadly on the left of the entrance. I do not know what Mr Wilkey meant by "elevational treatment" for Mr Pearce's stonework is above the piloti whereas the stone of the Kunsthal runs from ground level to the roof. Mr Wilkey never explained why there was an "element" of copying.
- Then there were various items in the park said to be copied from Mr Pearce's work. Mr Koolhaas did not design the park in which the Kunsthal stands at all. The design was by a Mr Yves Brunier who has since died. So he too is implicated in the fantastic allegations made in this case. The supposition is that Mr Koolhaas gave him Mr Pearce's plans or something derived from them. Nothing in the "similarities" relied remotely suggests this. I say no more than to point out another claimant-biased blunder by Mr Wilkey. He seemed to think that the Kunsthal drawings showed some picnic tables which he alleged were copied from Mr Pearce. If he had read the Kunsthal drawings properly, as he should have done, he would have seen that the objects depicted could not be picnic tables. Instead of abandoning the point, as he would have done if he had been fair, he clung on, saying: "there is a similarity in the size of a shape within the landscaping."
- I therefore unhesitatingly dismiss this action and will hear counsel as to the appropriate order.