J&J Snack Foods Corporation & Anor v Ralph Peters & Sons Limited & Anor

At a without notice hearing, an applicant must present the case fairly and even-handedly. That includes explaining the respondent’s reasonably anticipated arguments on notice, merits, quantum, risk and the scope of relief. A strong case on one part of a claim does not establish the required merits threshold for a materially different part. Where liability is accessory and an account of profits is sought, the relevant profits are those received by the accessory, not those made by the primary tortfeasor. Serious failures of fair presentation ordinarily require discharge of the order and may justify refusing re-grant, even where the failures were not deliberate.

The claimants sought trade mark, passing off and restitutionary relief against a holding company and its director, alleging that they were joint tortfeasors or accessories to infringement by Frozen Brothers Limited, which was not joined as a defendant. On 3 December 2024, without notice, a worldwide freezing injunction and an access and imaging order were granted.

The defendants applied to discharge the orders, alleging failures of full and frank disclosure and fair presentation. The issues included whether notice should have been given, whether the evidence established the requisite merits thresholds for two phases of alleged infringement, whether the quantum reflected profits potentially recoverable from the defendants, and whether the imaging order effectively operated against a non-party.

1. Orders discharged. The freezing injunction and access and imaging order were set aside. There were insufficient grounds to re-grant a freezing injunction.
2. Fair presentation. The duty at a without notice hearing requires a conscientious and even-handed presentation of the respondent’s likely arguments. The applicant must identify material weaknesses, alternative interpretations of the evidence, related proceedings, and issues concerning liability, quantum and the scope of relief. The advocate cannot simply acquiesce in indications that the judge accepts the applicant’s case.
3. Without notice relief. A hearing without notice is exceptional. It requires persuasive evidence and an explanation to the judge of why notice would frustrate the relief. Evidence of a risk that documents may be destroyed justified the imaging application to some extent, but did not justify a without notice freezing application or establish a real risk of the defendants becoming judgment-proof.
4. Different merits thresholds. The strong prima facie case established for the Phase 1 claim did not carry the materially different Phase 2 claims. The latter involved non-identical signs and required proper consideration of similarity, confusion, reputation, detriment, unfair advantage and passing off. Those issues were not fairly presented.
5. Accessory liability and quantum. The pleaded case and evidence did not establish a good arguable case that the defendants were principal infringers. They were alleged, at most, to be accessories to FBL’s wrongdoing. Applying Lifestyle Equities, the relevant account was confined to profits received by the defendants. No adequate case was presented that FBL’s profits were received by Mr Peters or RPSL.
6. Sanction and preservation. The failures were serious and had led to relief for an excessive sum and to imaging largely directed at Phase 2 documents held by a non-party. The imaged documents were to remain securely held to the order of the court until at least the first CCMC. Mr Peters was required to preserve relevant Phase 1 documents in his possession, custody or control.