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 Blackburne)

		The Royal Courts of Justice Strand London WC2 Wednesday 10th July, 2002

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal and a stay of execution from an order for summary judgment in proceedings for trademark infringement and passing-off. The judgment and order is that of Blackburne J of 27th February 2002.
2. The background to these proceedings is as follows. The claimant companies, which are seven in all, are all members of the well-known Halifax group of companies which provide financial and related services under the trademark "Halifax", which is the first word in their name. On 8th March 2000 the claimants brought the present proceedings for trademark infringement and passing-off, initially against five defendants. The first three defendants, Halifax Repossessions Ltd, Halifax Second Mortgages Ltd and Halifax Business Finance Ltd, are companies which were incorporated between September 1998 and September 1999. The fourth and fifth defendants were Motilall Gopee and Anuradha Gopee.
3. It emerged after launch of the proceedings that the fourth defendant was only 11 years old and that the fifth defendant was only ten. They later ceased to be parties and their father, Mr Gopee, who has appeared before me today, was joined as the sixth defendant by order of Master Moncaster dated 9th August 2000. That all emerged from an article which appeared in the Evening Standard of 4th May 2000. There it was reported that the writ had been issued by solicitors representing the Halifax companies demanding injunctions restraining infringement of trademark. It is reported in these terms:

"Today the children's father, east London businessman Dharam Prakash Gopee, told the Evening Standard why he put his children in charge of a home loans business, even though they are still in primary school.

Smiling, Mr Gopee said: `I wanted to encourage them to follow in my footsteps as successful entrepreneurs. It is perfectly legal for my children to be directors of companies and I hope it will encourage them to become successful business people.

`They take an active part in running the companies, but of course I am here to offer them assistance and training.

`People may think it unusual, but think of how much more life experience they have compared to other children in their classroom. They are in the lending business and business is booming. People are queuing up to use our services - the only problem we have is finding more capital to expand.'"

4. The article continues:

"Mr Gopee said the young financiers, who are to represent themselves and their companies in court, would deny the claims. ...

`Their defence will be that the companies were all off the shelf and are not associated with the Halifax Bank. My son and daughter deal with repossessions and second mortgages - which are not things that Halifax does so there is no conflict and they are not using the name to deceive clients."

5. The proceedings alleged that the defendants had infringed the trademark "Halifax" and passed themselves off as associated with the claimants by using an identical sign in the course of trade or alternatively that they threatened to do so. The personal defendants, of which Mr Gopee is the sole defendant at the moment, were alleged to have directed or procured those acts and to have equipped themselves with instruments of fraud.
6. The draft defence contained nothing material except denials and non-admissions, apart from an assertion that the companies were not and had never been trading and that they remained dormant. If that was the position, then the report in the Evening Standard was clearly false. It is also suggested that they were not incorporated by the personal defendants but were taken over bearing the Halifax name. Mr Gopee tells me that these were acquired from a list of companies offered for sale by a company called Hanover Company Services of Bristol. I am surprised that a reputable company should hawk round lists of companies bearing well-known trademarks in that way.
7. The claimants issued an application for summary judgment, pursuant to CPR Part 24, on 20th November 2001. It was supported by a witness statement of Mr Chatterton. I need not go into the details of it. It referred to the Evening Standard article. It referred to the relationship that they had had with Mr Gopee, and went on to deal with the fact that the sixth defendant was at the time an undischarged bankrupt when the companies were incorporated. The statement suggested that that was the reason why his son and daughter were appointed as director and officers.
8. Mr Gopee served a witness statement. He said in it that the Evening Standard article was misleading because he in fact was referring to his children's role in the trading activities of two further companies associated with the company. As this is a case where summary judgment has been given, it is right to accept that statement.
9. As I have said, the application came before Blackburne J on 27th February 2000. He concluded, on the evidence before him, that it was "inconceivable that Mr Gopee and his family had nothing to do with the incorporation of the companies". He also found the evidence of Mr Gopee's involvement in the matters overwhelming. He relied upon the judgments of this court in British Telecommunications Plc v One in a Million [1999] FSR 1, and concluded that these companies were instruments of fraud and that upon the evidence there was an inherent likelihood of passing-off from the similarities of the names. Upon that basis he granted the relief sought by the claimants. The claimants also sought an award of costs and he ordered a payment on account of £12,000 and detailed assessment.
10. The proposed grounds of appeal are, first, Mr Gopee seeks to distinguish the case of One in a Million. He says that in that case the defendants were tainted with fraud or had a track record of taking famous trademarks and extracting money from the proprietors. In this case he says it is completely different. These were off-the-shelf companies and in those circumstances, without a trial, the finding made by the judge should not have been made against him. He also complains that the order made is in breach of his human rights. Finally, he says that the judge contradicted his own finding that there would be nothing wrong for the corporate defendants to be involved in, say, selling bread.
11. In my view, there can be no basis for an appeal based upon those matters. The judge was right to rely upon the judgment of this court in the One in a Million case. This is a case where the company names are clearly instruments of fraud used, it would appear upon the face of the documents, as an attempt to trade upon or at least as a threat to trade upon the goodwill of the Halifax and to deprive them of their property. Although at this stage it is right to accept Mr Gopee's assertion that he bought these companies as off-the-shelf companies and had no involvement in their incorporation, the suggestion that they might be used for selling bread is not tenable. The principal business activities of Halifax Repossessions Ltd are said to be 7411 and 7484, which are legal and other business activities. Halifax Second Mortgages Ltd has its principal business in 6512, 6523 and 6522. Those codes signify monetary intermediation and financial intermediation and credit granting. It is quite clear from the company names that they are concerned with what can be described as broadly financial matters. Those matters are the concerns of the claimants.
12. In my view, the chances of an appeal succeeding in this court are non-existent. In those circumstances, it would not be right to grant permission to appeal.
13. I come last to Mr Gopee's complaint as to the order for costs that was made against him. In the particular case the order was for an amount to be paid on account of £12,000, which appears high in the circumstances. However, the order also provided for a detailed assessment. If the £12,000 is to too high then that can be resolved on the assessment. In my view, it would not be right to grant permission to appeal to consider the quantity of costs ordered to be paid on account. This is not a case where permission to appeal should be granted.
14. I therefore refuse the application.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)