Bayrische Motoren Werke Aktiengesellschaft & Anor v Young & Ors

Permission to appeal requires a real prospect of success. A challenge to a default judgment based on non-receipt will not meet that threshold where the first-instance judge was entitled on the evidence to find that service was proper and the appellant cannot show that the proceedings were not received. An appellate court will not readily disturb such a finding of fact. If non-receipt had been established, the default judgment could have been set aside independently of the merits. In any event, the absence of trading or the dormant status of companies did not, on the material, create a real prospect of defending claims concerning use of a sufficiently well-known name protected by trade mark law and passing off.

Mr Young applied in person for permission to appeal against an order of Mr Justice Ferris dated 8 November 2002, refusing to set aside a default judgment. The judgment had been entered by Mr Justice Park on 30 July 2002 in proceedings brought by BMW companies alleging passing off and trade mark infringement.

There had been no acknowledgement of service or defence. Mr Young argued that the proceedings had not been properly served, that the companies were dormant and had not traded, and that there was no infringement or passing off. He also raised human rights and personal liability points. The central issue was whether any proposed ground disclosed a real prospect of successfully appealing the refusal to set aside the default judgment.

Disposition

1. Permission refused. Permission to appeal could be granted only if the proposed appeal had a real prospect of succeeding.
2. Mr Justice Ferris was entitled to find that service had been proper. The claim form and related documents had been sent to the companies’ registered address and had not been returned. Mr Young had produced envelopes which reached him, but gave conflicting accounts and provided no proper evidence establishing non-receipt. There was no real prospect that the factual finding on service would be disturbed on appeal.
3. If Mr Young had established that he had not received the proceedings through the methods of service used, there would have been grounds to set aside the default judgment independently of the merits. That condition had not been established.
4. Alternatively, on the material before the court, there was no real prospect of Mr Young or the companies successfully defending the claims of passing off and trade mark infringement. The fact that the companies were dormant and had not begun trading, together with the asserted absence of an intention to trade, did not remove the risks associated with using the sufficiently well-known BMW name.

The other points advanced, including the human rights argument and the contention that only the companies could be liable, did not establish a real prospect of success. The application was refused.

• Court of Appeal (Civil Division): in [2003] EWCA Civ 857, Lord Justice Mummery refused permission to appeal.
• High Court: Mr Justice Ferris, on 8 November 2002, refused to set aside the default judgment.
• High Court: Mr Justice Park, on 30 July 2002, entered default judgment after no acknowledgement of service or defence had been filed.