Alan Williams Entertainment Limited & Anor v Mick Clarke & Ors

When settling a final order, a general costs-in-the-case order does not necessarily displace earlier indications concerning particular applications, especially where the resulting effect would be unfair. IPEC costs categories provide guidance and certainty but are not an inflexible straitjacket; additional costs require sufficient justification. Publicity orders are discretionary and must be necessary and proportionate, rather than punitive. An injunction should not be amended by speculative wording that creates uncertainty or confusion. Where future circumstances raise a genuine issue about compliance, the restrained party may seek a declaration.

The judgment addressed outstanding disputes about the scope of a final order following litigation between the claimants, Alan Williams Entertainment Limited and Alan Wiliams, and the defendants, Mick Clarke, John Richardson and Steve Innes Etherington.

The issues concerned the effect of a prior general costs order on interlocutory applications, recoverable costs for preparing a reply and a Part 18 request, the defendants’ joint and several liability for costs, the geographical scope and interpretation of a passing-off injunction, domain names and social-media accounts, and proposed publicity orders.

1. Costs of earlier applications. The July general costs-in-the-case order adopted the claimants’ draft order. It did not justify awarding the claimants costs of earlier applications where prior judicial indications suggested that particular applications might not be suitable for that treatment. In the circumstances, the costs of those applications were to follow the indications of the judges who heard them.
2. IPEC costs categories. The established costs categories for IPEC litigation promote certainty but assist rather than bind the parties and court. The claimants were not entitled to all costs of preparing a reply because sufficiently strong reasons had not been shown. A substantial Part 18 request had, however, been necessitated by the way the defence was prepared, and £1,300 was allowed on summary assessment for that request and related matters.
3. Costs liability. Mr Etherington was jointly and severally liable for the costs with the other defendants. The claimants could recover only the amount properly due, and could not recover the same costs three times.
4. Injunction. The injunction was not limited geographically. The prohibited conduct was carrying out acts which passed off the defendants’ goods and services as those of the claimants. The court declined proposed wording concerning performances through a distinct legal entity because it would lack clarity and cause confusion. A party uncertain whether particular future conduct would infringe could seek a declaration.
5. Publicity orders. Such orders are not automatic. They must be necessary and proportionate in the circumstances and must not be designed to punish. A three-month trade-press advertisement and website notices were not justified. The defendants were instead ordered to pay up to £3,000 for preparing and disseminating a fair summary of the judgment, excluding the cost of sending it. The claimants were to use best endeavours to send the summary only to specified prior agents, promoters and customers in England and Wales, subject to supplying the proposed text to the defendants for approval.