England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Hart)

		Royal Courts of Justice Strand London WC2 Thursday 31st May, 2001

1. LORD JUSTICE BROOKE: This is an appeal by the claimants from an order of Hart J made on 24th May 2001 when he dismissed their application for an interim injunction in an action they had brought for passing off. The nature of their application, which relates to a parish council election in Herefordshire which is to take place on 7th June, will become clear in due course.
2. We have read the judgment of Hart J in which he makes it clear that he would have been willing to make some sort form of order against the first defendant, Mr John Bernard Haycock, except that he was bound by a judgment of this court in Kean v McGivan [1982] FSR 119. He said that the ratio of that case appeared to him that a political party as such could not use the remedy of passing off to protect the value it had in a particular name. He granted the claimants permission to appeal.
3. The application was originally made on short notice, and short notice has been given to the first defendant of this appeal. We have been told that when the claimants' solicitor notified the first defendant that the appeal would be taking place today he said that he would be in Hereford today, but he expressed no preference for some different date for the appeal. In view of the relative urgency of the matter, it appears to me in all the circumstances appropriate to abridge time as appropriate.
4. The claimants are the Chief Executive and Deputy Chief Executive of the Countryside Alliance ("the Alliance"). The evidence about the Alliance comes from a witness statement by Mr Armstrong, the Deputy Chief Executive, who has responsibility in practice for the day-to-day running of the Alliance. He says that the Alliance is an organisation which campaigns and lobbies for countryside issues and, in particular, for the interests of those who take part in country sports activities and whose livelihoods are farming or countryside connected. Because of the present political climate, the Alliance is best known for campaigning against attempts to introduce a ban on country sports activities and, most particularly, hunting with dogs.
5. The Alliance was formed on 1st March 1998. It was created through an amalgamation of the British Field Sport Society, an organisation which had existed since the 1930s specifically to defend country sports against the threat of a parliamentary ban, and two more recent organisations: the Countryside Business Group and the Countryside Movement.
6. He produces what he says is a copy of the recent draft of the Alliance's constitution; a draft in the sense that the document which is before us is not signed by anybody. But it purports to have been revised at the Annual General Meeting held on 23rd May 2000. I see no reason to suppose that this is not the agreed constitution of the Alliance. The constitution has provisions as to membership, which include a provision that:

"The Board may at its absolute discretion and without giving reasons, decline to admit any person to membership of the Alliance whether or not such person has paid a subscription or membership fee."

7. Mr Armstrong explains that the purpose of the amalgamation was to create a broader church to campaign for the interests of all rural people who appeared to be increasingly becoming a minority whose interests were not properly understood or protected by an increasingly urban government. He added that the Alliance did not support or oppose any particular party, but its officers privately supported a variety of political parties. By way of example, its President and Chief Executive are all members of the Labour Party. Its director of political affairs was formerly the Chief of Staff for the Chairman of the Conservative Party. The Alliance has an head office in Kennington, with regional offices throughout England and Wales. It has about 90 employees, but many more voluntary staff as well. He says that the Alliance has never put up a candidate for an election of any kind and has no intention of ever doing so. The Alliance's advice to its members is to support in any election the candidate who is most sympathetic towards countryside interests. It would therefore be highly inappropriate for the Alliance to put up a candidate for a public election of any kind.
8. I pause there to show that the evidence in this case differs from the evidence in a number of cases concerned with disputes over elections, in that the claimants in this case have no wish or inclination to put up candidates in any public election.
9. Mr Armstrong then goes on to say that the Alliance has a membership in England and Wales of approximately 95,000. He says it would be fair to describe it as having a high public profile and being the most well known organisation campaigning for countryside interests. He refers to the Countryside March on 1st March 1998 which attracted over 300,000 participants through the centre of London, and he says that if it had not been for foot-and-mouth disease, there would have been a further march through the centre of London in March of this year, which would certainly have attracted considerably higher numbers than the one three years ago.
10. He then says this:

"The Alliance is a non-profit making organisation which pays tax only on bank interests and dividends. Nonetheless, the Alliance does have significant trading activities in order to generate revenue for its campaigning and lobbying role. At most country sports and countryside events across England and Wales, the Alliance has a trade stand which sells a variety of products, including mugs, books, tea towels, puzzles, note pads, cards, pullovers, polo shirts and other items. Our stands appear at point-to-points, country fairs, horse trials and game fairs. The Alliance also provides a variety of benefits and products to its members."

11. It describes arrangements it has made with a holiday company which organises riding and adventure holidays, and also arrangements it makes for insurance cover for members and the benefit of a free legal helpline service Mr Armstrong then goes on to describe how in September 1999 the Alliance became aware of a possible attempt by the British National Party to associate themselves with the Alliance. He has exhibited to his witness statement correspondence between Mr Burge, the Chief Executive, and Mr Tyndall, the Chairman of the British National Party, arising out of speculation in the press in September 1999. Mr Armstrong describes how antipathetic the Alliance is to some of the aims of the British National Party. He says that the Alliance, among other things, campaigns from an ideological point of view for the safeguarding of the interests of minorities; the British National Party's main policy is the removal of racial minorities from Britain.
12. He then describes how he heard that Mr Haycock, the first defendant, was standing purportedly as a Countryside Alliance candidate in the Bromyard Town Council election on 10th May. He said that he checked with the membership department and found that Mr Haycock was not even a member of the Alliance. He says why he was concerned about this development. He said:

"Mr Haycock had, at least until only a couple of months ago, clearly been closely and public associated with British National Party and, for the reasons I have stated above, any apparent connections between the British National Party and the Alliance would be extremely damaging to the reputation of the Alliance. It would also suggest that the Alliance was putting forward candidates for public elections, despite its policy of not doing so and instead encouraging support for pro-countryside candidates. It would also indicate that the Alliance welcomed as an Alliance representative a supporter of a party widely perceived as being racist and certainly one which has at its heart prejudice towards minorities."

13. The evidence shows how a letter before action was sent to Mr Haycock on 11th May and a chasing letter was sent on 18th May. There is a newspaper cutting with the papers in which he is reported as maintaining that he cannot be stopped from standing. He is quoted as saying: "What is the Alliance going to do about it? If the electoral office has passed it, that is good enough for me." He is reported as saying he was no longer a British National Party member and was trying to do the Countryside Alliance a favour by standing in their name. He said: "I am a strong supporter of the Countryside Alliance. I have been to all the rallies."
14. There are in the papers before the court copies of the nomination paper for the election of a parish councillor for the Bromyard and Winslow Town Council for the election to be held on Thursday 7th June 2001 which shows Mr Haycock, his name and his home address. His description (if any) is Countryside Alliance and he has a proposer and seconder as required by law. We also have with the court papers a copy of the statement as to persons nominated, signed by Mr Pringle, the second defendant, who is the returning officer, dated 14th May 2001. There were four candidates, one of whom describes himself as an independent, Mr Haycock who describes himself as the Countryside Alliance, and the other two candidates have left a blank against their description.
15. The second defendant, Mr Pringle, is the returning officer. He was originally joined in these proceedings, but the proceedings against him were in due course withdrawn and only survived in relation to a dispute as to costs which was settled between him and the claimants. But his intervention in the proceedings is helpful because a skeleton argument was placed before the court, settled by counsel on his behalf, which draws our attention helpfully to relevant provision of electoral law.
16. Not surprisingly, the Countryside Alliance is not a party registered under the new Registration of Political Parties Act 1998. That Act provides for a register of political parties to be maintained by the registrar or other officer who performs the duties of registration of companies under the Companies Act 1985. A party name may not be registered if, in the opinion of the registrar, it:

"... would be likely to result in the party's being confused by voters with a party which is already registered, ..."

17. Two consequences of non-registration are clear from the papers before us. One consequence arises from section 22(1) of the Political Parties Elections and Referendums Act 2000.
18. The scheme of this section is that in the elections which are described as "relevant elections for the purpose of this Part" parliamentary elections, and elections to the European Parliament, and elections to the devolved institutions under the devolution legislation, for example, are relevant elections - a person may only be nominated either if he stands for election in the name of a qualifying registered party - and that expression is defined in subsection (2) - or if he does not purport to represent any party, or if the nomination may be in respect of a qualifying registered party where the election is one in which registered parties (as opposed to individual candidates) may be nominated, as is beginning to happen under English electoral law. However, this does not apply under subsection (4) in relation to any parish or community election, Parliament no doubt not wishing at that level of electoral endeavour to prevent small pressure groups who are interested in a particular small local pressure group from calling themselves by the name of their pressure group without having to go to the trouble of registering themselves as a political party under the 1998 Act. However that may be, that Act does not apply to parish and community elections.
19. We have also had a sight of the existence of the 1998 Act in the Local Elections (Parishes and Communities) (Amendment) Rules 1999 which were made by the Secretary of State in exercise of a power conferred by section 36(2) of the Representation of the People Act 1983. That statutory instrument inserts into Schedule 2 of the governing rules (the Local Elections (Parishes and Communities) Rules 1986) a new rule, 4A, which is headed "Nomination papers: name of registered political party". This rule provides, among other things, that:

"(1) A nomination paper may not include a description of a candidate which is likely to lead voters to associate the candidate with a registered political party unless the description is authorised by a certificate-

(a) issued by or on behalf of the registered nominating officer of the party, and

(b) received by the returning officer before the last time for the delivery of nomination papers."

20. and a cross-reference is made for the words "registered political party" to the provisions of the 1998 Act.
21. As I have said, the Countryside Alliance did not purport to be a registered political party, did not wish to take part in elections and the provisions of the Act of 2000 do not apply to it.
22. The rules about parish elections, such as the election for a parish councillor for the Bromyard and Winslow Town Council, are set out in the 1986 Rules to which I have referred. Because these elections are taking place on the same day as a parliamentary election, Schedule 2 with appropriate modifications governs the position. The most important rules, for present purposes, are rules 4, 7, 8, 10 and 14. Rule 4 provides:

"(1) Each candidate shall be nominated by a separate nomination paper in the form in the Appendix, delivered at the place fixed for the purpose by the returning officer.

(2) The nomination paper shall state the candidate's-

(a) full names,

(b) home address in full, and

(c) if desired, description,

and the surname shall be placed first in the list of names.

(3) The description, if any, shall not exceed 6 words in length, and need not refer to his rank, profession or calling so long as, with the candidate's other particulars, it is sufficient to identify him."

23. Rule 7 is headed "Decisions as to validity of nomination papers". It provides, so far as material:

"(1) Where a nomination paper and the candidate's consent to it are delivered in accordance with these rules, the candidate shall be deemed to stand nominated unless and until-

(a) the returning officer decides that the nomination paper is invalid; or

(b) proof is given to the returning officer's satisfaction of the candidate's death; or

(c) the candidate withdraws.

(2) The returning officer is entitled to hold a nomination paper invalid only on one of the following grounds-

(a) that the particulars of the candidate or the person subscribing the paper are not as required by law; and

(b) that the paper is not subscribed as so required,

(3) As soon as practicable after each nomination paper has been delivered, the returning officer shall examine it and decide whether the candidate has been validly nominated.

(4) Where he decides that a nomination paper is invalid, he shall endorse and sign on the paper the fact and the reasons for his decision.

(6) The returning officer's decision that a nomination paper is valid shall be final and shall not be questioned in any proceeding whatsoever.

(7) Subject to paragraph (6) above, nothing in this rule prevents the validity of a nomination paper being questioned on an election petition."

24. Rule 8 is concerned with the publication of the statement of persons nominated. Rule 8(1) provides:

"The returning officer shall prepare and publish a statement showing the persons who have been and stand nominated and any other persons who have been nominated, with the reason why they no longer stand nominated."

25. Rule 10 is concerned with the power to withdraw a candidature by notice of withdrawal. By the timetable set out in Rule 1, the delivery of notice of withdrawal must be made not later than noon on the 16th day before the day of election. Mr Hacon has told us that by using the rules for computation of time set out in Rule 2, any withdrawal of Mr Haycock's name would have had to be made before noon on 16th May.
26. Rule 14 provides:

"(1) The ballot of every voter shall consist of a ballot paper and the persons remaining validly nominated for the electoral area after any withdrawals under these rules, and no others, shall be entitled to have their names inserted in the ballot paper."

27. Those rules were made, as I have said, under section 36(2) of the Representation of the People Act 1983. Section 127, which is headed "Method of questioning local election", provides:

"An election under the local government Act may be questioned on the ground that the person whose election is questioned-

(a) was at the time of the election disqualified, or

(b) was not duly elected,

or on the ground that the election was avoided by corrupt or illegal practices or on the grounds provided by section 164 or section 165 below, and shall not be questioned on any of those grounds except by an election petition."

28. The expression "local government election" is extended to mean the election of councillors for any electoral area by section 203(1) of the Act, which also provides that:

"`electoral area' means any electoral division or ward or, in the case of a parish or community in which there are no wards, the parish or community, for which the election of councillors is held under the local government Act; ...."

29. As I have indicated, this statutory scheme provides that an election may be questioned on the statutory grounds set out in section 127 and shall not be questioned on any of those grounds except by an election petition.
30. In the case of Sanders and Younger-Ross v Chichester and Palmer Scofield on Electoral Law E104, a dispute arose in connection with a European Parliamentary election held on 9th June 1994. The Liberal Democratic Party was objecting to a candidate who described himself as a Literal Democrat. Sedley J on 20th May refused leave to apply for judicial review on the basis that his jurisdiction was ousted by a provision in the same terms as Rule 7(6) of the 1986 Rules with which we are concerned. In November 1984, on an election petition, the Divisional Court ruled in that case that the defendant, the respondent to the petition, was entitled to behave in the way that he did under the existing law by describing himself as a Literal Democrat. No doubt that decision was one of the factors which led to the recent legislation to which I have referred.
31. Mr Hacon has made it clear to us that he does not wish in any way to interfere with the electoral process by seeking to have Mr Haycock's name and description removed from the ballot paper or in due course seeking to have his election, if he is elected, quashed on the grounds that it offends against electoral law. He submits that so long as he does not seek the kind of remedy for which Parliament has provided that the electoral petition should be the only form of remedy, ousting the jurisdiction of the courts, there is no reason at all why an organisation like his clients', which are not involved in the election, should not have the same remedies available for them if they have been wronged, or if they anticipate they are going to be wronged by activities which amount to a civil tort, and should not be entitled to those remedies in the same way as they would be entitled to remedies, if any, if they or their executive officers were defamed during the course of an election campaign or if there was trespass to their property or if any other civil wrong was committed against them.
32. The relief that he seeks is set out in a draft minute of order. He has made it clear that he only seeks the relief numbered (1), namely that until after final judgment in this action the first defendant must not represent to any person whether expressly or by implication that he is a member of the Countryside Alliance or is supported by the Countryside Alliance as candidate in any election or is otherwise associated with the Countryside Alliance.
33. The claimants had originally sought further relief to the effect that the first defendant must take all reasonable steps to withdraw his present nomination for election as councillor for the Bromyard and Winslow Town Council to be held on 7th June 2000 (without prejudice to any later nomination not in breach of order numbered (1)). But Mr Hacon realises that time has now passed, and that there can be no question of a withdrawal under the timetable prescribed by the rules, and he therefore does not seek that relief.
34. When the matter was before Hart J he said in his judgment that the claimants were then seeking an order that Mr Haycock must not stand as a candidate in the Bromyard Town Council Election to be held on 7th June 2001 under or by reference to the name Countryside Alliance, or otherwise campaign, advertise any candidate or carry out any other political activities under or by reference to the name Countryside Alliance, or any name confusingly similar to that name.
35. At the end of his judgment, the judge said that even if he had come to a different conclusion he would have had difficulty in granting relief in terms as wide as that sought by the claimants if for no other reason than that he could see no ground upon which Mr Haycock could be prevented from putting himself forward as a candidate based on his proclaimed support for the aims of the Countryside Alliance, whether or not that proclaimed support was either genuine or welcome to the Alliance. That is not to say, said the judge:

"... that had I come to a different conclusion about the effect of Kean v McGivan it would not have been appropriate to make some order against Mr Haycock carefully confined so as to prevent him asserting that he was in any way officially authorised by the Countryside Alliance."

36. For my part, given the way in which Mr Hacon has put his case, I see nothing in the ouster provisions of the statutory scheme relating to the conduct of elections to prevent his clients, in the circumstances of the case, from obtaining the relief they seek if it is otherwise available to them. I therefore turn to the way in which their claim is put in passing off.
37. One starts for this purpose with the dictum of Nourse LJ in Consorzio Del Prosciutto Di Parma v Marks & Spencer Plc [1991] RPC 251, 358. Nourse LJ said, referring to the judge at first instance:

"Having then dealt with a further preliminary point which does not arise for consideration in this court, Morritt J, correctly applying the principles laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396, turned next to the question whether the consortium had an arguable case for the grant of a permanent injunction at the trial. That made it necessary for him to state the essential ingredients of a valid cause of action for passing off, for which purpose he referred to well known passages in the speeches of Lord Diplock and Lord Fraser of Tullybelton in Warnink v Townend, at pages 742 and 745, in each of which five such ingredients are identified, the ingredients not being the same in each case. Although those speeches are of the highest authority, it has been my experience, and it is now my respectful opinion, that they do not give the same degree of assistance in analysis and decision as the classical trinity of (1) a reputation (or goodwill) acquired by the plaintiff in his goods, name, mark etc, (2) a misrepresentation by the defendant leading to confusion (or deception), causing; (3) damage to the plaintiff."

38. In the more recent case of Chocosuisse Union des Fabricants Suisses de Chocolat v Cadbury Ltd [1999] RPC 826, this court made it clear that goodwill need not be established in the mind of every member of the relevant public, but in a significant section of it.
39. The way that Mr Hacon puts his case runs along these lines, be reference to the trinity mentioned by Nourse LJ. So far as reputation for goodwill is concerned, he submits that the evidence shows that the Alliance acquired considerable press and public attention by reason of the march organised in 1998 and the coverage that would have been given to it since then as a lobbyist in support of rural interests, and in particular in the opposition to the moves to ban hunting. He submits, and on the evidence I would accept this submission, that the Alliance has a substantial public reputation in its activities.
40. For the requisite ingredient of misrepresentation, Mr Hacon submits that Mr Haycock is campaigning under the description of Countryside Alliance, and the public will see this on the ballot paper, and as things stand, unless he is enjoined, he is free to canvass votes and campaign using material which may prominently feature the banner "Countryside Alliance". Mr Hacon submits that it is inconceivable that the public will interpret this in any way other than he is standing as a member and with the support of the Alliance. He submits that this is a clear misrepresentation.
41. Again, everything else being equal, it appears to me that this is a way of putting the case which is unquestionably available to the claimants on the evidence. They have not provided any direct evidence that he is, and they have provided no evidence of his intention short of the evidence, such as it is, that might be culled from that press notice. But Mr Hacon argues, supporting himself by the extract from the evidence of Mr Armstrong to which I have referred, that this is a case in which the appropriate ingredient of misrepresentation is made out, and I would accept this submission, too.
42. So far as damage was concerned, he submits that the nature of Mr Haycock's actions is such that the Alliance will be tarred with the impression that it supports any policy that the first defendant cares to espouse. Its ability to gain the support of the public and to lobby successfully is thereby severely threatened. This is particularly the case in the light of his former membership of the British National Party and his likely continuing sympathy with it.
43. During the course of his submissions today Mr Hacon argued strongly that if Mr Haycock was permitted to continue to behave in the way that the Alliance fears he is capable of behaving, that will mean that they will lose control over the goodwill that they have established in the public eye for their activities which is, of course, a valuable property of theirs. In support of his submission that the court should consider this aspect of his clients' case, he has referred us to the recent case in this court of Harrods Ltd v Harrodian School Ltd [1996] RPC 697. Millett LJ said, at page 715:

"In the classic case of passing off, where the defendant represents his goods or business as the goods or business of the plaintiff, there is an obvious risk by substitution. Customers and potential customers will be lost to the plaintiff if they transfer their custom to the defendant in the belief that they are dealing with the plaintiff. But this is not the only kind of damage which may be caused to the plaintiff's goodwill by the deception of the public. Where the parties are not in competition with each other, the plaintiff's reputation and goodwill may be damaged without any corresponding gain to the defendant. In the Lego case, for example, a customer who was dissatisfied with the defendant's plastic irrigation equipment might be dissuaded from buying one of the plaintiff's plastic toy construction kits for his children if he believed that it was made by the defendant. The danger in such a case is that the plaintiff loses control over his own reputation."

44. This concept of the loss of control over reputation and consequent damage to goodwill by a potentially injurious association with the defendant is also picked up in the judgment of Sir Michael Kerr at page 724.
45. Everything else being equal, therefore, I would consider that a remedy in passing off should be available to the claimants. But as Hart J observed, before one can reach such a conclusion one is forced to consider the effect of the decision of this court in Kean v McGivan [1982] FSR 119.
46. That was a very different case. Mr Kean, who appeared as litigant in person, had formed a small northern-based political party in July 1979. So far as one can gather from the very short judgments, the party attracted a very small number of people and operated in a limited area. Mr Kean was not able to describe any activities which could be designated as commercial which had been undertaken by his party, and in that sense the facts which were before the court were very different from the facts which are before us. The court (consisting of Ackner LJ and Sir Denys Buckley) denied Mr Kean relief, without calling on counsel who appeared for the much better known Social Democratic Party which had been formed nearly two years after Mr Kean's party, and the two extempore judgments contain no reference to any authorities at all.
47. Ackner LJ set out the facts quite briefly. He said he was:

"... quite prepared to approach the matter on the basis that confusion could arise, although in very limited circumstances, partly because of the very wide publicity given to what I may briefly refer to as the defendant's party and the main personalities in that party and partly due to the very small numbers in what I may briefly refer to as Mr Kean's party and the limited area in which it operates."

48. But he went on to say:

"... Mr Kean's problem from the outset seems to me to be this:

It is well-settled - and I do not refer to refer to the text books; it is amply set out in the text books and in particular in Halsbury and in Clark and Lindsell - that apart from statute there is no property in name as such; and, in the absence of misrepresentation or some malicious motive, a man or woman has the right to use not only his own name but to adopt the name of another for himself or his property. This is so despite the fact that this can give annoyance and inconvenience, and there are decided cases dealing with the consequences which can occur when a house is given a particular name which is also the name of another house in a telegraphic address. However, if the particular name is used in connection with a business or a profession, it may achieve a right to prevent another person from using that in a manner likely to cause confusion in the minds of members of the public. But the basis of a right of action in passing off is that the conduct of the defendant is such that the public may be led to believe that the goods which the defendant is offering or the services which he is offering are in fact the goods or services of the plaintiff. The property which is said to be injured in that situation is not the name or the description of the goods but the right to the goodwill of the business which results from the particular commercial activity. Therefore the courts do not in general interfere to protect a non-trader. I hasten to add that of course the word `trade' is widely interpreted and includes persons engaged in a professional, artistic or literary occupation.

Thus the action lies where there is a real possibility of damage to some business or trading activity. Therefore the plaintiff must establish that in some sense he is carrying on a business with which the trade or public will be led to associate the defendant's activities.

In this case, as Mr Kean every frankly accepted at the outset of his carefully set out submissions, we are not concerned with goods or with a business; nor was Mr Kean able to say in the course of his submissions that there were any commercial activities carried on by what I refer to as his party. Of course his party may wish from time to time itself to enter into contracts for the hire of a hall or other facilities necessary for the operation of a political party, but that is not involving itself in a commercial activity in the sense which I have indicated.

Such being the case, although Mr Kean understandably drew our attention to a number of authorities which dealt with circumstances in which confusion can arise - circumstances in which despite the narrowness of the locality the remedy can still operate - he was unable to draw our attention to any situation where the remedy of bringing a passing off action has operated in a situation where there was no trade in the widest meaning of that word; no commercial activity carried on.

Accordingly, in my judgment, there is no basis in this case for a claim based upon the tort of passing off. The situation is simply that a non-commercial activity - a political party - is seeking to use the same name, the same initials, as a very small other such party with, so we are told, somewhat similar values and ideals. It does not provide a situation, in my judgment, in which there is any basis for contending that a tort has occurred, and in those circumstances in my judgment the learned judge was perfectly right to refuse an injunction."

49. At the end of his judgment Ackner LJ made it clear that he was deciding the case on the basis of the facts that Mr Kean had put before the court. He ruled that no wrong had been done, and therefore not surprisingly there was no remedy.
50. In a very short supporting judgment Sir Denys Buckley said:

"Passing off is a remedy which is designed to protect some form of property - usually the goodwill of the plaintiff in his business or his goods or his services or in the work that he produces or something of that kind. In the circumstances of this case, I do not think that considerations applicable to cases of that kind are really applicable at all."

51. I do not read this short extempore judgment as suggesting in any way that the line of cases concerned with charitable institutions or professional institutions which do not carry on commercial trade in the ordinary sense of the word is being overruled. I regard this as a decision on the particular facts, a case in which the two members of the court were quite unable to identify any property owned by Mr Kean and his colleagues which was in any way susceptible of being protected by the tort of passing off. In that sense it is a very long way removed from the facts of the present case.
52. The decision of this court in Kean v McGivan was considered by the Court of Appeal of New South Wales in The Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association v Attorney General 16 IPR 609. That was a case in which the Attorney-General, in his role of protector of charities, was bringing proceedings to protect the charitable trust over property belonging to the Ancient Church of the East. An issue in this case was whether the Ancient Church of the East had a goodwill which could be protected by this branch of the law. The Court of Appeal upheld the decision of Young J [1989] 14 IPR 609, 611 to the effect that:

"... as a matter of general principle, I cannot see any reason why a religious organisation should not have the same protection as to the goodwill in its name as is afforded by the law to commercial organisations. Surely whilst religious organisations may not have ordinary commercial goodwill, they have something closely analogous thereto in that their reputation will be damaged by people falsely ascribing as an adjunct to them the organisation which is holding itself out by a deceptively similar name."

53. The facts of that dispute are again far-removed from the present, but it is valuable in that the Court of Appeal of New South Wales referred to three American cases and two English charity cases before coming on to consider the case of Kean v McGivan. Of the American cases the most notable is Purcell v Summers (1944) 145 F(2d) 979 at 985, where Parker J said:

"We have no doubt that these principles ordinarily applied in the case of business and trading corporations are equally applicable in the case of churches and other religious charitable organisations; for, while such organisations exist for the worship of Almighty God and for the purpose of benefitting mankind and not for the purposes of profit, they are nevertheless dependent upon the contributions of their members for means to carry on their work, and anything which tends to divert membership or gifts of members from them injures them with respect to their financial condition in the same way that a business corporation is injured by diversion of trade or custom."

54. The Court of Appeal of New South Wales also drew attention to the decision of Farwell J in British Legion v British Legion Club (Street) Ltd [1931] 48 RPC 555 in which the British Legion was held to be entitled to relief in a claim of this kind, and also to the decision of Vaisey J in Dr Barnardo's Homes: National Incorporated Association v Barnardo Amalgamated Industries Ltd (1949) 66 RPC 103. The court then referred to Kean v McGivan and a passage in the judgment of Ackner LJ, in particular the passage in which the plaintiff was said to have been unable to draw the court's attention:

"... to any situation where the remedy of bringing a passing off action has operated in a situation where there was no trade in the widest meaning of that word; no commercial activity carried on."

55. The court commented:

"Such a submission fails, of course, to draw upon a not inconsiderable body of authority and the case should not be followed."

56. In an electoral context, the High Court of Justice in Ontario had the opportunity in Polsinelli v Mazill 21 CPR(3d) 140 to consider the decision in Kean v McGivan [1982] FSR 119 which Campbell J inaccurately attributed to the House of Lords at page 143. In his comments on that case he noted that this kind of claim was traditionally restricted to matters of commercial trade or property. He then said (at p 144):

"I see no reason to extend that kind of claim to this kind of case. There is in this context no property in a political name. No person and no organisation owns or has any monopoly on any political idea, or any designation of political belief. This is particularly so when the designation, which is impugned, is intended to convey information about the political beliefs of the person using the designation. The respondent by referring to himself as `A Trudeau Liberal' obviously seeks to identify himself with a particular political position and with particular issues, and to indicate that he ascribes to and stands for particular issues and particular types of political beliefs."

57. An appeal against his judgment dismissing the application for relief was dismissed by the Ontario Divisional Court, but on different grounds. They considered that on the facts the evidence before the court simply failed to go far enough to amount to evidence of significant confusion and they dismissed the appeal on that ground. But they added:

"We wish to make clear that we have not formally considered and are not deciding whether the law of passing-off applies to political affairs such as an election campaign. It is fair to say that our inclination is to disagree with Campbell J's view that it does not, but if the law is to be settled on the point it will have to be settled on some other day and by some other court."

58. That decision therefore left matters not much further forward.
59. In the field of charity, our attention has been drawn to the decision of Scott J in British Association of Aesthetic Plastic Surgeons v Cambright Ltd [1987] RPC 549 and the decision of this court in Institute of Chartered Accountants of England and Wales v Hardwick [1919] 35 TLR 342. But more particularly Mr Hacon has shown us a judgment of Robert Walker J in The British Diabetic Association v The Diabetic Society [1996] FSR 1. In that case the plaintiff was a registered charity which was concerned with promoting the interests of people who suffer from diabetes and was supported by voluntary contributions from the public, for example inter vivos gifts, testamentary dispositions and covenants and so on. It also received membership subscription. It had an income of £10 million a year and it carried out fund-raising activities at local and national level. It sought to restrain two personal defendants who had become disenchanted with the manner in which the plaintiff was running itself. The action was concerned with the name in which this rival organisation was carrying on its affairs. Robert Walker J said, at page 9:

"The Association is not, in the ordinary sense, a trader (though it has a trading subsidiary, and it distributes its general periodical Balance to members as part of what they get for their subscriptions). The Society is even less of a trader. That is the first and most important of the unusual features to which Mr Thorley referred in opening, and it is convenient to deal with it at once.

Although the essentials of passing-off may be formulated (as in the speech of Lord Diplock) in terms that require both parties to a passing-off action to be traders, it is clear from the authorities and here the concept of trade is much wider than in (for instance) a tax context). Trade and professional associations have frequently succeeded in passing off actions, as have the British Legion and Dr Barnardo's Homes in actions against commercial organisations."

60. Then after referring to a textbook and to the Australian case and to the American decision of Parker J, Robert Walker J continued:

"Mr Nicholas Pumfrey QC (who appears with Dr Heather Lawrence for the defendants) does not argue that I should not follow these Australian and American decisions (to which might be added the South African case of Old Apostolic Church Of Africa v Non-white Old Apostolic Church of Africa [1975] (2) SA 684) and I think I should follow them. To my mind they represent a natural progression of the basic principle, which has already been extended some way beyond normal commercial trading activities.

I conclude, therefore, that the scope of a passing off action is wide enough to include deception of the public by one fund-raising charity in a way that tends to appropriate and so damage another fund-raising charity's goodwill - that is, the other charity's `attractive force' (see Lord Macnaghten in Inland Revenue Commissioners v Muller & Co's Margarine Ltd [1901] AC 217, 223)..."

61. Mr Hacon submits that there is nothing in the decision of this court in Kean v McGivan which should deter the court from giving effect to this strong line of authority both in this country and overseas. This line of authority shows that a claimant in a passing off action may be a charitable organisation or a professional institution which does not carry on commercial activity in the ordinary sense of the word, but which has unquestionably in the eyes of the law a valuable property in the sense of its goodwill which it is entitled to protect by bringing a passing off action if the three classic ingredients of a passing off action are present.
62. Mr Hacon was prepared to make elaborate submissions in an attempt to persuade us, if necessary, that the decision in Kean v McGivan had been decided per incuriam. In my judgment, however, this is an example of an extempore judgment of this court, based on argument only from one side and without reference to authorities, being attributed a weight much greater than those who delivered that judgment would have expected it to bear. The court dismissed Mr Kean's appeal in the summary way that it did because it could see no trace in the evidence which was before it of the attributes necessary to establish a right to the protection of goodwill in a passing off action.
63. In my judgment Ackner LJ's words in this extempore judgment should not be properly interpreted as meaning he was turning his back on that well-established line of authority to which I have referred in this judgment. Sir Denys Buckley, for his part, with his enormous experience of this field of law, stated, completely accurately, that passing off was a remedy which was designed to protect some form of property. I am satisfied on the evidence in this case that the claimants did have a valuable property by way of its goodwill which it was entitled to protect.
64. I therefore consider that there is nothing in the decision of this court in Kean v McGivan to preclude us from granting relief if we would otherwise be disposed to grant it. In view of the urgency of the matter and the fact that if relief is not given today it will be pointless to wait for the trial of the action, because the damage, if any, will already have been irreparably done, I consider that this is a case for appropriate interim relief.
65. I turn to the form of relief sought. There is clear evidence that Mr Haycock is not a member of the Countryside Alliance, that he is not supported by the Countryside Alliance as a candidate in the election, and he is not otherwise associated with the Countryside Alliance. I see no reason why the Alliance should not have the protection they seek until after final judgment in this action in the form in which they seek it.
66. I must stress that nothing in this judgment should be taken to be precluding the normal course of forceful advocacy in the context of a parish election, and it would be quite wrong to interpret this court as seeking in any way to control freedom of speech in the context of democratic elections. On the other hand, the claimant has a valuable right it is, in my judgment, entitled on this evidence to protect. I would therefore allow the appeal and grant the relief sought.
67. LADY JUSTICE HALE: The first question in this appeal is whether in principle this could amount to the tort of passing off. As Sir Denys Buckley said in the case of Kean v McGivan [1982] FSR 119 at page 121:

"Passing off is a remedy which is designed to protect some form of property - usually the goodwill of the plaintiff in his business or his goods or his services or in the work which he produces or something of that kind."

68. The question therefore is: has the claimant built up a sufficient property in the goodwill associated with its name that it should be protected against damage to that property caused by the confusing or misleading use of that name by another? The evidence of the activities of the claimant in this case indicates quite clearly that it has indeed established a valuable property in the goodwill associated with its name.
69. The Court of Appeal in Kean v McGivan cannot be taken, as my Lord has said, to be disapproving the consistent line of first instance authority that charities can have and protect such a property right, or the Court of Appeal authority in the case of The Institute of Chartered Accountants of England and Wales v Hardwick [1919] 35 TLR 342 that a professional body can also do so. The right to protect such established goodwill cannot in my view depend upon the precise legal status of a body such as this, and in particular whether or not it is a charity. Many of the considerations which have led to conclusions in favour of those bodies in this context apply equally strongly in this case; and I bear in mind particularly that it is not just the loss of trade or of donations which may constitute the damage, but particularly the loss of control over the goodwill that has been established.
70. For my part, therefore, I would not consider that the case of Kean v McGivan is anything other than a decision on its particular facts and it does not stand in the way of a remedy in this case.
71. The second, and perhaps more troubling question is whether electoral law makes any difference. I go back to the days when no description of candidates was allowed on ballot papers and a large amount of the resources of those conducting electoral campaigns had to be devoted to making as sure as possible that the electors knew the names of the candidates associated with the party that they wished to support. In order to get round that particular problem a description was then introduced. We now find that, no doubt partly because of some of the confusions that that has led to, that the right to use such a description has been curtailed. In particular, as my Lord has described, section 22(1) of the Political Parties, Elections and Referendums Act 2000 prevents a nomination unless the nomination is in respect of "a person who stands for election in the name of a qualifying registered party" or "a person who does not purport to represent any party" or "a qualifying registered party" (if it is an election where this is possible).
72. Subsection (3) of section 22 takes this further, because it provides that:

"For the purposes of subsection (1) a person does not purport to represent any party if either-

(a) the description of the candidate given in his nomination paper is:

(i) `Independent', or

(ii) where the candidate is the Speaker of the House of Commons seeking reelection, `The Speaker seeking reelection', or

(b) no description of the candidate is given in his nomination paper."

73. The effect of this therefore is that for the elections to which these provisions apply a candidate can only be described as standing in the name of a qualifying registered party, in which case he must of course do so, or as an independent or give no description. But this does not apply, according to subsection (4), to any parish or community elections. Rule 4A inserted into the Local Elections (Parishes and Communities) Rules 1986 by the 1999 Amendment Rules simply precludes somebody standing in the name of a political party unless authorised by certificate so to do. Thus, in parish and community elections people may still use their description of up to six words.
74. There are many possible reasons why Parliament may have taken this line, which do not necessarily indicate any intention to allow individuals to commit torts through the descriptions that they employ, let alone allow them to commit torts in the course of their conduct of the campaign as a whole. As my Lord has said, one obvious possibility is that in a small-scale local election people should continue to be able to describe their affiliation to local groups or local causes without those groups having to go through the whole process of registration as a political party.
75. So I would not, without more, conclude from that distinction that relief is barred in this case. It is of course necessary to consider the effect of Rule 7 of the 1986 Rules. This provides that a candidate shall be deemed to stand nominated unless and until the returning officer decides that the nomination paper is invalid. It further provides that the returning officer is entitled to hold a nomination paper invalid only on one of the defined grounds, in particular that the particulars of the candidate or the person subscribing the paper are "not as required by law", and finally provides that the returning officer's decision that a nomination paper is valid shall be final and not be questioned in any proceeding whatsoever.
76. This makes it clear that the returning officer cannot reject the nomination as invalid unless, of course, the case of Sanders and Younger-Ross v Chichester and Palmer (Scofield on Electoral Law E104) is wrongly decided - a point on which I would not wish to express any view whatsoever in the context of this case. If the returning officer is not able to reject it, the Rule also makes it clear that the election thereafter could not be challenged as an invalid election. But none of that affects, in my view, the power of the ordinary courts to restrain the commission of torts by individuals in the course of an election campaign which is the remedy actually sought in this case.
77. The third question, therefore, is whether the court should exercise its discretion to grant the relief sought. I agree of course that as a matter of discretion the court should be reluctant to do anything which might be seen as stifling robust political debate or legitimate free speech. There can, as Mr Hacon has rightly acknowledged, be no objection to the defendant in this case proclaiming his general support for the Countryside Alliance and its aims and objectives. But that does not, in my view, permit him to commit the tort of passing off by indicating incorrectly his membership of, or that he enjoys the support of, or is otherwise associated with, the Alliance.
78. I agree that the appeal should be allowed and the relief which the claimants now seek granted.
79. LORD JUSTICE RIX: I agree. I am grateful to my Lord, Lord Justice Brooke, for his statement of the facts, his review of the legislative background and his discussion of the authorities on the tort of passing off.
80. I confess that for a time, while the provisions of the legislative background to the conduct of elections were being helpfully explained to us by Mr Hacon, I was concerned that for the courts to interfere by injunction in such a case would run contrary to that legislative scheme. I have in mind the provisions of the Registration of Political Parties Act 1998, Rule 4A of the Local Elections (Parishes and Communities) Rules 1986 (as amended in 1999), and section 22 of the Political Parties Elections and Referendums Act 2000. The effect of section 22, which is however expressly disapplied in relation to parish or community elections by subsection (4), is that no nomination may be made by a person, save either in the name of a qualifying registered party, in which case his or her candidature's description must be certified by that party in question, or in his or her own name, either as an independent or without further description of his or her candidature. The effect of Rule 4A is to apply to parish and community elections only that part of the prohibition which concerns any description associating a candidate with a registered political party in the absence of a certificate authorising that description.
81. In circumstances therefore where Mr Haycock's nomination and the description which he has arrogated to himself of "Countryside Alliance" have been accepted by the returning officer, and thus will appear on the ballot form, and where a combination of sections 120 and 187(1) of the Representation of the People Act 1983 provides that no election shall be questioned except by a subsequent election petition, I have been concerned that Parliament had indicated that the courts could not interfere with respect to the conduct of the election of such a candidate, in particular as to the manner in which he represents himself to the electorate.
82. Nevertheless, I am satisfied, for the reasons given by my Lord and my Lady, that it was not Parliament's intention to permit the commission of what would otherwise be a tort to go unchecked. The fact that Parliament has granted to a candidate at a parish or community election a wider latitude to the description of his or her candidature, which at that level is perfectly understandable, is not reason to think that it intended to permit a candidate to electioneer in a way which would amount to a tort. On the contrary, it may be said that the provisions of section 22 indicate Parliament's general concern regarding the misleading of the electorate in the manner of a candidate's affiliation.
83. Of course, in the election context courts would be very cautious indeed about any interference which might trespass upon the democratic process. In the present case, however, to permit Mr Haycock to continue to represent himself in his electioneering as being an authorised candidate of the Countryside Alliance would be to permit the electorate to be deceived and would only serve to undermine that democratic process.
84. In the circumstances therefore, where I am satisfied that Mr Haycock threatens to commit the tort of passing off, I am relieved that this court can do something to prevent such deception.
ORDER: Appeal allowed; the claimants to have their costs in the case as against the first defendants, both here and below; interim order for costs in favour of the claimants of £2,500 payable in six weeks. (Order not part of approved judgment)