Azumi Ltd v Zuma's Choice Pet Products Ltd & Anor

A judge sharing chambers with counsel does not, without more, create apparent bias. The question is whether a fair-minded and informed observer, aware of professional standards and the circumstances, would conclude that there was a real possibility of bias.

A court should grant rights of audience to an unqualified advocate only in exceptional circumstances. A suspended solicitor who failed to disclose material disciplinary and appeal history did not satisfy that threshold.

Under section 21(2) of the Trade Marks Act 1994, justification of threats depends on whether the threatened acts constitute, or would constitute, trade mark infringement. The proprietor need not sue on every act mentioned in the threat.

Summary judgment is inappropriate where the defence has a real prospect of success and the issue should be determined at trial.

The judgment concerned three related proceedings: an infringement claim by Azumi Limited concerning the mark ZUMA, and two groundless-threats actions brought by Ms Zoe Vanderbilt. The applications before the court included recusal, rights of audience for Ms Vanderbilt’s proposed McKenzie Friend, and summary judgment on the threats claims.

The summary-judgment application challenged the defence of justification and argued that Azumi had not sued in respect of a company name and domain name. Earlier applications and case-management decisions had directed that the issues be determined at trial. The central questions were whether apparent bias arose from the judge’s chambers relationship with counsel, whether full advocacy rights should be granted, and whether the justification defence had a real prospect of success.

1. Recusal. The application was refused. Apparent bias asks whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias, applying Porter v Magill [2001] UKHL 67. The observer is not unduly sensitive or suspicious: Helow v Secretary of State for the Home Department [2008] UKHL 62. Applying Watts v Watts [2015] EWCA Civ 1297, the observer would understand the professional standards applicable to practising barristers and deputy judges. Sharing chambers with counsel, without allegations of crime, fraud or similar circumstances, did not establish apparent bias.
2. Rights of audience. The application was refused. Under the Legal Services Act 2007, the court has power to grant rights of audience, but the request must be justified. Following Clarkson v Gilbert [2000] 2 FLR 839, exceptional circumstances are required where the proposed advocate has set himself up as an unqualified advocate. Mr Ellis’s indefinite suspension as a solicitor, his failure to disclose that suspension, the refusal of his application to terminate it, and the dismissal of his appeal justified refusal. The absence of financial irregularity did not alter the conclusion.
3. Summary judgment. The application was dismissed. Section 21(2) of the Trade Marks Act 1994 focuses on whether the acts threatened constitute, or would constitute, infringement. It does not require the proprietor to commence proceedings concerning every act referred to in the threat. The pleadings also arguably covered the domain name and company name. The justification defence therefore had real prospects of success and should be determined at trial under CPR rule 24.2. No finding was made on the ultimate merits.
4. Costs and restraint warning. The late application was unreasonable, so costs were ordered immediately and capped at £3,000. The court declined to record that it was totally without merit, because failure and unreasonable conduct do not by themselves satisfy that higher threshold. A warning recital concerning future applications was nevertheless ordered.

The judgment records that an earlier summary-judgment application had been dismissed by HHJ Hacon. Permission to appeal that later paper decision was not granted, and the Court of Appeal directed that the application be renewed before a judge of co-ordinate jurisdiction. The present judgment determined the renewed application and dismissed it.