Burge & Anor v Haycock & Anor

A body may protect goodwill associated with its name through passing off even though it is not a conventional commercial trader or a charity. It must possess valuable goodwill and establish the classical trinity of reputation or goodwill, misrepresentation causing deception or confusion, and resulting damage.

Damage may consist of losing control over the claimant’s reputation through a misleading association. Electoral legislation governing nominations and election petitions does not prevent the ordinary courts from restraining a candidate’s threatened tort, provided the order neither invalidates the nomination nor questions the election. Courts should protect robust political speech, but that protection does not extend to falsely claiming membership, endorsement or official association.

The claimants were senior officers of the Countryside Alliance, a campaigning organisation with substantial membership, public recognition and trading activities. The first defendant, who was neither a member nor an authorised candidate of the Alliance, entered a parish council election using “Countryside Alliance” as his candidate description.

Hart J dismissed an application for an interim injunction because he considered himself bound by Kean v McGivan [1982] FSR 119, although he would otherwise have been willing to make a suitably confined order. The claimants appealed and sought only to restrain the first defendant from representing that he was a member of, supported by, or otherwise associated with the Alliance. They did not seek alteration of the ballot paper or invalidation of the election.

The central questions were whether the Alliance possessed goodwill capable of protection through passing off, whether electoral law barred relief, and whether an interim injunction should be granted.

1. Appeal allowed unanimously. Brooke LJ delivered the leading judgment. Hale LJ and Rix LJ agreed that an interim injunction should restrain the first defendant from representing that he was a member of, supported by, or otherwise associated with the Countryside Alliance.
2. The Alliance had substantial public reputation and valuable goodwill capable of protection as property. Passing off is not confined to conventional commercial traders. Charities, professional bodies and other organisations may invoke it where their activities have created protectable goodwill. Kean v McGivan [1982] FSR 119 was explained as a decision on its particular evidence, where no protectable property or commercial activity could be identified. It did not exclude the established wider line of authority.
3. The claimants had an arguable case on each part of the classical trinity. The Alliance possessed substantial goodwill. Use of its name as a candidate description was capable of representing that the candidate had its membership, support or authorisation. The resulting association threatened damage by depriving the Alliance of control over its reputation, particularly because the candidate might espouse policies inconsistent with its position.
4. The electoral scheme did not bar the proposed relief. Section 22 of the Political Parties, Elections and Referendums Act 2000 did not apply to parish or community elections. Rule 4A of the Local Elections (Parishes and Communities) Rules 1986 regulated descriptions associating candidates with registered political parties. Rule 7 made the returning officer’s acceptance of a nomination final, while the Representation of the People Act 1983 prescribed election petitions for questioning elections. Those provisions did not authorise tortious campaigning or remove the ordinary courts’ power to restrain a tort where the order did not invalidate the nomination or question the election.
5. The court should exercise particular caution before interfering with political debate or legitimate free speech. The candidate remained free to proclaim genuine support for the Alliance and its objectives. He was not free to deceive electors by claiming membership, endorsement or official association. Given the imminent election and the prospect that the damage would become irreparable before trial, interim relief was appropriate.

• Court of Appeal (Civil Division): The claimants’ appeal was allowed unanimously. The court granted a confined interim injunction restraining false representations of membership, support or association and awarded the claimants their costs against the first defendant.
• High Court, Chancery Division: Hart J dismissed the application for an interim injunction on 24 May 2001 because he considered himself bound by Kean v McGivan [1982] FSR 119. He granted permission to appeal.