Ah, ta.

There are at least two separate issues.

There is the issue of the service to which the charity is entitled. That is indeed a matter of contract although terms may be implied into contracts in three ways (some might argue a fourth, custom, but it is probably not in point here).

Statute implies what it implies and I am not aware of any relevant statutory implications.

Some terms are implied by law as a result of the nature of the agreement - some implied terms in contracts of employment are like that eg the mutual duty of good faith, but see also Liverpool City Council -v- Irwin - a term will not be implied in law merely because it is reasonable, although it will not be implied in law if it is not.

I am very doubtful if a term entitling the charity to output of all records would be implied in law.

Some terms are implied in fact. Some express these to be terms that are necessary for business efficacy but the most common formulation is the officious bystander test - that if some officious bystander suggested it to the negotiating parties while negotiating they would BOTH "suppress him with a common "of course"". I doubt if the consultant would have done so, see Shell -v- Lostock.


Next is ownership of the database and the rights in it.

Databases are protected by two different rights. Those that are the intellectual creation of the maker are protected by copyright. Those that are mechanical (like a white pages telephone directory) have database right which only protects against substantial unauthorised extraction. While contracts of employment have the benefit of statutory implied terms as to ownership in some cases, consultancies do not (pace one case I will mention). So I think that in general it is unlikely that the courts will treat the charity as the owners of any relevant copyright or database right.

Now comes "re Gestetner". It is a case in which it was held implied as a matter of fact that the commissioner of a work (fully paid for) was entitled to the copyright in it.

So if the charity has fully paid for the database and is not subject to ongoing fees (save possibly for access and maintenance) I think it very possible that the charity is entitled to ownership of the copyright or database right and MAY be entitled to delivery up of material reproducing it. It probably would not even then solve the re-entry cost although if the consultant is in breach of contract he might well be additionally liable for the costs to the charity of mitigating the damage to them flowing from the breach of contract (see Banco de Portugal -v- Waterlow).

Usual exclusion of liability applies!