Alan Williams Entertainment Ltd. & Anor v Hurd & Ors

A compromise agreement must be construed according to the natural and ordinary meaning of its words, read in their contractual and factual context. A prohibition on trading as a band under a particular name may extend beyond the band’s formal trading name to promotional material and other presentations which objectively suggest that it is the original band. Where the agreement requires reasonable endeavours to prevent such promotion, the obligation may include warnings to promoters and reasonable steps to correct inaccurate publicity, but it does not impose absolute responsibility for third-party conduct or a general duty to monitor the media.

The claimants and defendants had previously litigated over the right to use the name “The Rubettes”. Their dispute was compromised by a Tomlin order and agreement permitting two differently named bands to operate, while restricting use of the name, logos and related promotional material.

The claimants alleged breaches concerning websites, advertisements, television appearances, domain names and statements about the original band. The defendants brought a counterclaim concerning promotional material, websites, use of the logo and alleged disparagement. The central issues were the meaning of “trade as” in clause 5, the extent of any obligation concerning third-party publicity, and the resulting breaches and remedies.

1. Construction. The compromise agreement was to be construed according to the natural and ordinary meaning of its words, considered as a whole and against the relevant background. The principles stated in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and referred to in Bank of Credit and Commercial International SA v Ali [2002] 1 AC 251 applied.
2. Meaning of “trade as”. Clause 5 was not confined to the formal name used in contracts or other official documents. It extended to any promotion or presentation which objectively conveyed that either band was “The Rubettes” or the original Rubettes. Fair and legitimate references to the original band remained permissible, but presenting a band as the original band was prohibited.
3. Third-party publicity. Promotion by a promoter or other contracting party formed part of the band’s trading activity. Clause 5 therefore required reasonable endeavours to prevent inaccurate descriptions and, where necessary, to seek their correction. It did not impose an absolute obligation or a general duty to supervise all publicity or search the media. An express contractual prohibition was helpful but was not invariably required.
4. Application and disposal. Several allegations against the defendants were established, including breaches arising from websites, event publicity, television programmes, performances and domain names. Some allegations were rejected where the evidence did not establish responsibility, awareness or failure to take reasonable steps. Breaches by the claimants were also established in relation to promotional material and disparaging statements, while other counterclaim allegations failed.
5. The parties had proceeded on the basis that quantum would not be tried. The court therefore ordered an inquiry as to damages suffered by each side from the breaches established. The judge expressed a provisional doubt that the claimants could lift the stay in the earlier proceedings to prosecute that action, referring to Hollingsworth v Humphrey (C.A. 21 December 1987, unreported) and Gibb v Pubmaster Ltd (Rimer J, 7 October 2002, unreported).