The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors

For passing off, a defendant need not intend a misrepresentation once it is made. However, the claimant must first show that the defendant made, authorised, procured, or was otherwise responsible for its publication. An advertiser does not impliedly consent to an independent website operator placing outdated text on an unknown and inaccessible webpage merely because the advertiser originally supplied the underlying information.

Fresh appellate evidence should be admitted only after balancing finality against a correct result. The Ladd v Marshall criteria remain strongly persuasive, particularly where the evidence could have been obtained for trial and would require a retrial.

The appellant trade body alleged that Bee Moved and its directors had passed off by being described as a member of the appellant on a directory page of the Really Moving website after its membership had ended. The wording was untrue, but Bee Moved contended that it did not know the directory page existed and could not alter it. It had removed references from the webpages accessible through its account.

The Intellectual Property Enterprise Court rejected this aspect of the claim: [2016] EWHC 3192 (IPEC). On appeal, the appellant challenged the finding that Bee Moved was not responsible for the directory-page statement. It also sought to adduce screenshots said to undermine Mr Sampson’s evidence about his knowledge of the page.

Decision

The Court of Appeal dismissed the appeal. Lady Justice Asplin gave the judgment, with which Lord Justice Kitchin agreed.

Fresh evidence

1. Under Civil Procedure Rules 1998, CPR 52.21(2), the court had to balance finality against achieving the right result. The criteria in Ladd v Marshall, as confirmed to remain powerfully persuasive in Sharab v Al-Saud [2009] EWCA Civ 353, guided that discretion.

2. The proposed screenshots could have been obtained before trial. The pleaded case and witness statement had already made the state of the respective webpages relevant. The screenshots from 2009 were not conclusive of the position shortly before membership ended in 2010, and their provenance was insufficiently explained. Their admission would also require a retrial, causing further delay and cost. The court therefore refused to admit them and would not disturb the Recorder’s findings based on the evidence he heard.

Passing off

1. The absence of an intention to mislead does not itself defeat a passing-off claim. The formulation in Reckitt & Colman Products Ltd v Borden Inc & Ors [1990] RPC 341 concerns whether a misrepresentation, once made by the defendant, must be intentional. It does not answer the prior question whether the defendant made the representation at all.

2. On the pleaded case and facts found, Bee Moved had neither authorised nor procured the directory-page statement, and Really Moving was not its agent. Implied consent could not arise merely because Bee Moved had supplied information for advertising on webpages it could alter, when it did not know that an inaccessible directory page existed. The misleading statement was therefore made by the independent website operator, not by Bee Moved.

3. Automatic continuing liability merely because the wording originally came from Bee Moved would be untenable. A request made before the membership ended could not break causation, because the representation had not then become untrue.

• Court of Appeal (Civil Division): Dismissed the appeal and refused permission to adduce fresh evidence.

• High Court of Justice, Chancery Division, Intellectual Property Enterprise Court: Mr Recorder Douglas Campbell QC rejected the passing-off claim concerning the Really Moving directory page: [2016] EWHC 3192 (IPEC).