England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings London EC4A 1NL
		24/04/2012

His Honour Judge Birss QC :

1. This is an application by the claimant to commit the defendant (Mr Knight) for contempt of court. The application arises from the order I made almost exactly one year ago on 22^nd March 2011 following judgment at the trial in the action for the claimant ([2011] EWPCC 8). The recent history of this application is set out in my judgment of 6^th February 2012 ([2012] EWPCC 6), in particular paragraphs 1 to 19. Rather than repeat them here I will cross refer to those paragraphs. The committal application arises because the claimant contends that the defendant has failed to comply with large parts of the trial order made on 22^nd March 2011.
2. At the hearing on 6^th February 2012 I directed that any evidence Mr Knight wished to rely on in reply to this application should be served by 9^th March and adjourned the application to 23^rd March 2012. Since the 6^th February hearing a number of things have happened.
3. One of the reasons Mr Knight appeared to be giving for not complying with the trial order was that he was seeking to appeal. Whether this was ever a basis for non-compliance is a matter to return to below. In any event, as at the 6^th February, it appeared that there may have been a mix up with documents such that paperwork relating to an application by Mr Knight for permission to appeal may have been lost. Since then the Court of Appeal has considered Mr Knight's application for permission. By an Order sealed on 27^th February 2012, Lord Justice Lloyd addressed the application. He refused the application as being totally without merit with reasons attached to the order. The learned judge analysed Mr Knight's documents and considered the points Mr Knight made about the trial judgment in detail. Lloyd LJ's conclusion in paragraph 19 was:

"I am satisfied that the appellant's appeal cannot possibly succeed. It is totally without merit. I therefore refuse permission to appeal, and the appellant is not to have the opportunity to renew his application at an oral hearing."

4. Mr Knight has therefore exhausted all avenues of possible appeal from the order made on 22^nd March 2011.
5. Following the dismissal of his application for permission to appeal, no evidence was filed by Mr Knight (by 9^th March or otherwise) to address the committal application. On 13^th March 2012 Taylor Wessing wrote to Mr Knight pointing out that his appeal was at an end and that he was still in continuing breach of the trial order and urging him to take steps to comply with the trial order. They also asked him to confirm that he would be attending the hearing on 23^rd March.
6. Mr Knight replied by email to the claimant's solicitors on 14^th March. It stated that "as you know im suffering from depression and will be visting my GP next week" and went on to make various allegations about procedural mistakes which were alleged to have been made. The letter stated that Mr Knight intends to ask the ombudsman to investigate his claim and states "so i ask that the case be put on hold until i am over my depression and the omsbudman investigate my claim. i will send you copies of everything."
7. Two days ago on 21^st March 2012 Mr Knight sent an email to the listing office. The email stated:

Sick note for the attention of Judge Biress only AS I WILL NOT BE ATTENDING THE HEARING THIS FRIDAY DUE TO THE GROUNDS STATED ON MY SICK NOTE this sick note and its content will not to be passed over to any party out side the courts or third party this to include Taylor wessing this complies with the data proctection act.

i will also send a copy of this email to the parlimentry ombudsman. who is investigating the conduct of the PCC and appeals courts.

Tony KNIGHT

8. At the same time Mr Knight sent a copy of the sick note to the listing office. It was a Statement of Fitness for Work signed by a GP on 20^th March 2012.
9. I considered the matter and directed that a message be sent to Mr Knight yesterday (22^nd March) to inform him (i) that a copy of his email would be sent to the claimant's solicitors without the sick note attached and (ii) that I did not consider the sick note, which is in fact a statement of fitness for work, to be prima facie confidential and I proposed to direct that a copy of the note be given to the claimant's solicitors at the hearing unless I heard good reasons to the contrary from Mr Knight.
10. Overnight, Mr Knight sent another email in the following terms:

Dear Sir

i have spoke to the information Commisioner who have advised that a sick note is private and unless i give concent the courts can be prosicuted. for disclosing information without consent also please inform the Judge that the parlimentry ombudsman are investing the PCC court conduct prior to the original hearing and if it is found the courts are at fault i will be seeking a full retrial and also am seeking advice to take the matter to the european courts. I am at present suffering from depression and the courts must allow me to recover.

i will asking the information commisioner to investigate the conduct of the courts. my medical information is private and is NOT TO BE DIsclosed to Taylor wessing if it is then the courts will be investigated.

Tony Knight.

11. When the hearing was called on this morning, the first matter I addressed was the question of the sick note. I indicated that I would direct that a copy of the note be given to the claimant's solicitors because, despite Mr Knight's submissions, it seemed to me to be the right thing to do in the interests of justice. My reasons would be given in this judgment. They are as follows.
12. The majority of Mr Knight's submissions are not sensible arguments but his essential point is that the information is private and he does not wish it to be disclosed to the claimant and her solicitors. While I accept that a person's medical state is to a very large extent their private affair, in the context of this case I do not regard Mr Knight's claim to privacy is one which is sufficient to justify the non-disclosure of this document in these circumstances. The sick note is the reason Mr Knight is giving for his non-attendance at this hearing. It is not for Mr Knight alone to purport to fetter the conduct of these proceedings. The overriding objective, to deal with cases justly, includes ensuring that the parties are on an equal footing. That must mean that in the overwhelming majority of cases one side should know what the other party is putting to the court. A partial and very narrow exception to that principle arises in cases of genuine and highly confidential material which is sometimes disclosed only to a party's legal team but not the party concerned. Those exceptional cases are a long way from the facts of this case. This sick note is not a document setting out a detailed medical history of Mr Knight at all. No details of a kind which might very well be private are included. I can quite see that detailed medical evidence might justify different treatment but the document before me is not like that. Moreover I bear in mind that it is in fact a Statement of Fitness for Work. The purpose of such a document is for it to be shown to third parties such as an employer in order to explain an absence from work and such like. For all these reasons it seemed to me to be in the interests of justice that the sick note should be disclosed.
13. The 20^th March 2012 sick note indicates that Mr Knight has anxiety and depression and is not fit for work for the next four weeks. In other words it is substantially the same information that Mr Knight had told Taylor Wessing anyway in his email on 14^th March 2012.
14. Following disclosure of the sick note, Mr Ward then turned to address Mr Knight's application to adjourn this committal hearing. I heard Mr Ward's submissions and decided I would not adjourn this committal hearing. My reasons would be given in this judgment.
15. Mr Ward referred me to the judgment of the Court of Appeal in Forrester Ketley v Brent [2012] EWCA Civ 324. In that case Longmore LJ and Lewison J (as he then was) heard an appeal from the judgment of Morgan J finding the defendant in contempt of court. One of the grounds of appeal was that Morgan J should have adjourned the hearing because Mr Brent was unwell and unable to attend. The particular passage Mr Ward referred to is paragraphs 25 to 27 of the judgment of Longmore LJ, including the citation of a passage from the judgment of Norris J in Levi v Ellis-Carr [2012] EWHC 63 (Ch). These paragraphs emphasise that adjournment is a matter for the discretion of the first instance judge. In paragraph 25 Longmore LJ said:

While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.

16. The extract from Levi v Ellis-Carr cited by Longmore LJ serves to emphasise the importance of detail and cogency in medical evidence if it to be used to demonstrate that a party is unable to attend a hearing. In that case before Morgan J the court had the benefit of a report from one doctor (Dr Dymond) and a letter from Mr Brent's GP, Dr Johnson. On that basis Morgan J held that Mr Brent was suffering from stress associated with the litigation. He was physically fit to attend the hearing but emotionally vulnerable to stress. Morgan J concluded that Mr Brent was absent from the hearing voluntarily. The judge was aware of Mr Brent taking or attempting to take advantage of his non-participation in hearings and refused the adjournment.
17. Mr Ward also referred me to paragraphs 17 to 19 of my judgment dated 6^th February 2012 at which I had refused Mr Knight's application to adjourn the hearing on that occasion based on another Statement of Fitness for Work (albeit that in the end the claimant sought to adjourn the hearing anyway). I said the following:

17. I do not accept that the defendant has a good reason not to attend the hearing today and/or to seek its adjournment. He has had proper notice of the hearing. It is a very serious matter since it relates to his continued non-compliance with orders of the court. The Statement of Fitness for Work does not establish that the defendant could not attend today's hearing. There is no evidence the doctor was asked to consider whether the defendant could attend court at all.

18. Mr Ward also pointed out that the defendant has shown himself able to conduct email correspondence throughout these proceedings up to and including yesterday. He also reminded me that the defendant had utterly failed to comply with the order made on 20^th December to produce a letter concerning the car accident.

19. I accept Mr Ward's submissions in this regard. This defendant is not engaging with the court's process in a meaningful way. The doctor's note dated 2^nd February 2011 does not, without more, provide a good reason to adjourn this application.

18. Mr Ward also reminded me of the level of frustration his client feels with the way in which this proceedings have developed and the cost involved. The claimant has so far not received any sums in costs from Mr Knight despite the costs order and does not expect to receive any sums in future.
19. If I adjourn this hearing, it will be the third time the matter has been adjourned. The application was first listed to be heard in December 2011. It was adjourned on that occasion on the strength of Mr Knight's contention that he had been injured in a car accident. The claimant did not believe him. I adjourned the hearing and ordered Mr Knight to produce a letter from his GP confirming his attendance and setting out the nature and extent of his injuries. No such information has ever been provided.
20. The committal application was then listed for 3^rd February 2012. As mentioned above, Mr Knight sought to adjourn the hearing again but I refused his application albeit the matter was adjourned anyway (judgment dated 6^th February). That time a Statement of Fitness for Work was produced indicating depression with no further evidence.
21. The only bases to support Mr Knight's application to adjourn today are his sick note indicating anxiety and depression and his point that he seeks to have the ombudsman investigate his claim. The point about the ombudsman is irrelevant. The issue this application relates to is Mr Knight's failure to comply with the trial order. The fact that he believes the order should not have been made does not justify non-compliance as I shall address below. His application for permission to appeal to the Court of Appeal has been dismissed and there never has been a stay of the trial order.
22. As regards Mr Knight's medical condition, I have no detailed evidence at all. There is nothing to indicate what the cause of Mr Knight's anxiety and depression is. I infer in the absence of any other evidence that is it likely to be due to these proceedings. I recognise court proceedings are stressful and being faced with an application for committal will be very stressful indeed. However an adjournment is unlikely to serve any useful purpose because the causes of Mr Knight's anxiety and depression will continue. There is no evidence at all that Mr Knight is not physically capable of attending the hearing. Nor is there any evidence Mr Knight is not capable (physically or psychologically) of putting forward a case to meet the allegations being made against him. No such case has emerged despite this application having been served in October. However in that period Mr Knight has shown himself to be entirely capable of detailed correspondence by email and engaging with the process of seeking permission to appeal from the Court of Appeal.
23. I also bear in mind that Mr Knight has a history of attempting to take advantage of non-attendance at hearings, which goes right back to the case management conference in this case. I refer to paragraphs 11 -13 of my judgment at the CMC [2010] EWPCC 16. A similar episode occurred in the period shortly before trial (see paragraphs 3 to 11 of the trial judgment).
24. I am not satisfied adjourning this application will do any good. I am not satisfied Mr Knight will attend an adjourned hearing of this application. In my judgment Mr Knight is absent from this hearing voluntarily. I will not adjourn it.

Contempt of court

Procedure

25. Applications for committal for breach of an order of the county court are governed by CCR Order 29. The Practice Direction RSC 52 and CCR 309 – Committal Applications is also applicable.
26. This is an application for a committal order in circumstances in which the defendant is alleged to have refused or neglected to do acts he was ordered to carry out and is alleged to have disobeyed orders to abstain from doing acts. As such it falls within CCR Order 29.1(1).
27. In compliance with CCR 29.1 (2) the trial order was served on Mr Knight personally. As regards the mandatory orders, the trial order was served before the time for doing those acts expired. The mandatory orders were an order for delivery up within 14 days of the date of the order (paragraph 3), an order for a confirmatory affidavit on delivery up within 21 days of the date of the order (paragraph 4) and an order transferring various domain names within 21 days of the date of the order (paragraph 6). Since personal service was effected on 30^th March 2011, CCR 29.1(2)(b) was complied with.
28. The order served was endorsed with a penal notice and so CCR 29.1(3) was complied with.
29. The claimant issued an application notice to seek committal for contempt and served that application personally and so CCR 29.1(4) was complied with. The application notice was served on 31^st October 2011. The application notice complies with the requirements of CCR 29.1 (4A). It identifies the provisions of the injunction alleged to be disobeyed, lists the ways in which it is alleged the injunction has been disobeyed and is supported by an affidavit stating the grounds on which the application is made. The affidavit is the First Affidavit of Jason Rawkins dated 26^th October 2011.
30. Insofar as the Practice Direction at paragraphs 2.6(1) and (2) impose additional requirements in the case of a committal application made by application notice, they too have been complied with.

Principles

31. The burden is on the applicant to satisfy me so that I am sure that Mr Knight is guilty of the alleged contempts. That is the criminal standard of proof. Mr Knight is to have the benefit of any reasonable doubt.
32. Since it is clear that one of the reasons Mr Knight has given for not complying with the orders was that, as far as he was concerned, he had appealed the orders, I will address that issue. It has two elements. The first is the suggestion that an order which is the subject of an appeal need not be complied with for some reason. That is wrong. A litigant seeking to appeal and who wishes to seek to suspend the effect of an order in the meantime can seek an order for a stay pending appeal. Whether or not such an order is made will depend on the merits of that application, but in the meantime when the order is in effect it must be complied with. Unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of any order of the lower court (CPR Part 52 r52.7).
33. The second element is that it appears Mr Knight may have believed that he did not need to comply with the order because it was being appealed. That raises the question of whether or not it is necessary to show that a person appreciated that what they were doing was a breach of an order and intended to breach the order.
34. Mr Ward addressed the question of the state of mind of an alleged contemnor and cited the judgments of Christopher Clarke J in Masri v Consolidated Contractors International Co. SAL and others [2011] EWHC 1024 (Comm) paragraphs 150 – 155 and of Teare J in JSC BTA Bank v Ablyazov [2012] EWHC 237 (Comm) paragraph 124.
35. In Masri, at para 150 Christopher Clarke J said:

In order to establish that someone is in contempt it is necessary to show that (i) that he knew of the terms of the order; (ii) that he acted (or failed to act) in a manner which involved a breach of the order; and (iii) that he knew of the facts which made his conduct a breach: Marketmaker Technology (Beijing) Co Ltd v Obair Group International Corporation & Ors [2009] EWHC 1445 (QB). There can be no doubt in the present case but that the judgment debtors have at all times been fully aware of the orders of this court. It is not and could not sensibly be suggested that the conduct of which complaint is made was casual or accidental or unintentional. However, the question arises whether it is, also, necessary to show that they acted knowing that what they were doing was a breach of, and intending to breach, any of the orders.

36. As regards the latter question, in paragraphs 151-155 the learned judge went on to consider two opposing lines of authority (including Irtelli v Squatriti [1993] QB 83) and concluded:

155. […] In my judgment the power of the court to ensure obedience to its orders for the benefit of those in whose favour they are made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he did was a breach of the order – particularly when a belief that it was not a breach may have rested on the slenderest of foundations or on convenient advice which was plainly wrong.

37. In Ablyazov Teare J considered the judgment in Masri and also Irtelli. He held that

124 […] For the reasons given by Christopher Clarke J. in Masri v Consolidated Contractors International [2011] EWHC 1024 (Comm) at paragraphs 150-155 it is not necessary to show that the defendant to a contempt application appreciated that what he was doing was a breach of the court order and intended to breach the court order. I respectfully agree with that decision. I am not persuaded that Irtelli v Squatriti [1993] QB 83 is a decision to the contrary (as opposed to the expression of an assumption as to the law).

38. These two judgments of Christopher Clarke J and Teare J are clear authority that it is not necessary to show that Mr Knight appreciated that what he was doing was a breach of the order. Therefore, provided Mr Knight knew of the terms of the order, acted or failed to act in a manner which breached the order and knew of the facts which made his conduct a breach, the contempt will be proved. In considering whether the alleged contempts are proved, I do not need to consider whether Mr Knight believed he did not need to comply with the order because it is irrelevant.
39. The final point of principle relates to the correct approach in dealing with grounds for committal which are based on acts by the defendant which were not considered at trial. As is routinely the case in intellectual property matters, the injunctions are broader in scope that the particular acts found to infringe at trial. So, for example, a finding that the defendant infringed one of the claimant's registered trade marks in a particular way leads to an injunction restraining any infringement of that trade mark. When the defendant simply continues to do the acts found to infringe and those are said to be contempts, then no difficulty arises, the court has already ruled that they are infringements. What about acts which are different from the acts considered and ruled on at trial? Of course a well advised defendant would not risk having their conduct decided on a committal application and therefore defendants often bring claims for declarations of non-infringement if they intend to do something different from the acts considered at trial and they contend those new acts do not infringe. However that is not what has happened here.
40. In Spectravest v Aperknit [1988] FSR 161 Millett J considered a committal application in relation to an interlocutory order restraining infringement of copyright and held (citing Chanel v FGM Cosmetics [1981] FSR 471) that if a defendant was accused of having broken an order of the court, the court must decide whether he had done so even if this involved deciding the issue in the action. The same must follow after trial, in other words the court must decide whether the accused acts are infringements or not.
41. Accordingly it would be open to a claimant in a case like this to call substantial evidence to prove that a given new activity did infringe. However in this case the claimant has not sought to embark on that exercise for what are no doubt good and sensible reasons of cost and proportionality. However it does mean that I need to take care in considering any action of Mr Knight's which differs in any way from the conduct I considered at trial. On the other hand it cannot be correct in my judgment that Mr Knight could simply make small changes to his website and therefore require the claimant to recall the evidence deployed at trial to prove passing off and/or trade mark infringement.

The facts

42. The application notice sets out the alleged contempts as eighteen separate grounds. I will deal with them in the same way.
43. Most of the allegations relate to Mr Knight's website at www.divineapparel.co.uk. The affidavit evidence served with the application for committal included three sets of print outs of pages from that site. One set (exhibit JWR 10) was printed on 13^th June 2011, another (JWR 11) was printed on 10^th October 2011 and a third (JWR 12) was printed on the day the affidavit was sworn (26^th October 2011). The precise form and content of the site changes over time and it is necessary to keep an eye on which version of the site is under consideration at any stage. This is the only evidence which I will consider in order to decide whether the contempts are proved or not.
44. Once I have addressed that question I will consider the question of how Mr Knight's conduct has varied over time. In this respect the claimant urges me to consider the website in its form after the application was served. The evidence dealing with that later period in time has not been provided by affidavit despite paragraph 3.1 of the Practice Direction RSC 52 and CCR 29. The written material has simply been filed at court and copies sent to Mr Knight. Mr Ward submitted the evidence did not have to be provided by affidavit. I disagree. In my judgment the Practice Direction is clear and evidence in support of or in opposition to a committal application must be given by affidavit.
45. Paragraph 10 of the Practice Direction provides that the court may waive any procedural defect in the conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect. No injustice could be caused to the respondent if I confine my consideration of evidence in deciding whether the contempts are proved to the affidavit evidence and I will do so. It seems to me that insofar as I have already found that the respondent has committed contempts of court, it would not be unjust to consider later material, printed out from his own website, to evaluate the extent to which those already found contempts are continuing up to today and I will do so. However I cannot help but observe that no good reason why this material was not provided by affidavit has been given to me.

#1 Failure to deliver up infringing items to the claimant's solicitors [Trial order paragraph 3]

46. Paragraph 3 of the trial order provides:

The Defendant shall within 14 days of the date of this Order deliver up to the Claimant's solicitors all articles or materials in his possession, power, custody or control the sale, use or distribution of which in the course of trade in the United Kingdom after the date of this Order would offend against the foregoing injunctions or any of them.

47. The injunctions referred to are injunctions to restrain infringement of various trade mark registrations, to restrain passing off in various ways and to infringe copyright in various works of the claimant's.
48. The date by which delivery up should have taken place was 5^th April 2011. Mr Knight has not purported to deliver up any goods at all to the claimant's solicitors at any stage. The only conceivable question is whether he actually has anything to deliver up. If Mr Knight had no infringing goods in his possession then he cannot be in breach of this order for not delivering them up.
49. I am sure Mr Knight has indeed retained possession, power, custody or control of goods which should have been delivered up. I will give a single example (although there are many more). The evidence of Mr Rawkins provides copies of Mr Knight's website (www.divineapparel.co.uk) as at 13^th June 2011. This is after service of the trial order and after the date for delivery up. At p172 of the exhibit (JWR10) is an image showing a scarf being offered for sale by the defendant for £15. The page states the "Qty in stock 10", i.e. indicating clearly that Mr Knight has ten of them to sell. The image of the scarf shows that it bears a prominent device which is a plain copy of the claimant's skull and crossbones device including the words "TOO FAST TO LIVE TOO YOUNG TO DIE". The trial judgment dealt with this device at paragraphs 160 – 170 and made findings that copyright subsisted in it and had been infringed by Mr Knight. The trial order includes an injunction to restrain infringement of this copyright (paragraph 2(c)(i)). The same passages in the judgment also find that the device is the subject of Community Trade Mark 5805528 and that that has been infringed by Mr Knight by using the logo on clothing as well. The trial order includes an injunction to restrain infringement of this CTM (paragraph 2(a)(vi)).
50. Mr Knight's possession of these goods is not a mistake or an accident. He has them in order to sell them. Mr Knight plainly knew of the terms of the order, has breached the order and plainly knows of the facts which made his conduct a breach. Accordingly I find that Mr Knight is in contempt of court on this ground.

#2 Failure to serve affidavit relating to delivery up of infringing items on the claimant's solicitors [Trial order paragraph 4]

51. Paragraph 4 of the trial order provides:

The Defendant shall within 21 days of the date of this Order serve upon the Claimant's solicitors an affidavit sworn by the Defendant truthfully confirming that he has complied in full with the Order for delivery up of articles and materials set out in paragraph 3 above.

52. This has not been done. No affidavit has been served. Even if Mr Knight had had nothing to deliver up (which I have rejected above) he was still required to provide the confirmatory affidavit. It is an important safeguard to ensure that delivery up is done properly. There is no excuse for not doing so and none has been offered save for the general point about appeals which I have already addressed above. I find that Mr Knight is in contempt on this ground.

#3 Failure to transfer the domain name www.2fasttolive.co.uk to the claimant [Trial order paragraph 6]

and also grounds #4 to #7

53. Paragraph 6 of the trial order provides:

The Defendant shall within 21 days of the date of this Order take all steps as may be required to transfer the following domain names to the claimant, that is to say

a. www.2fasttolive.co.uk

b. www.redplanetclothingcompany.co.uk

c. www. toofasttolivetoyoungtodie.co.uk

d. www.toofasttolivetoyoungtodie.com

e. www.letitrock.co.uk

54. Mr Knight has not transferred any of these five domain names to the claimant. Grounds 3 to 7 relate to this, with each ground referring to a separate domain name. It is convenient to deal with them all together. There is no difference between the cases in respect of each domain name.
55. The order required Mr Knight to take all steps as may be required to transfer the domain names. Thus it is at least logically possible that Mr Knight could have tried to transfer the domain names but failed for some reason and thereby complied with the order. The question is one of inference and I remind myself of the court's approach to circumstantial evidence and adverse inferences in contempt cases. At paragraph 145 -146 of the judgment of Christopher Clarke J in Masri (supra) the learned judge addressed these matters. He said the following:

Inferences

145. In reaching its conclusions it is open to the court to draw inferences from primary facts which it finds established by evidence. A court may not, however, infer the existence of some fact which constitutes an essential element of the case unless the inference is compelling i.e. such that no reasonable man would fail to draw it: Kwan Ping Bong v R [1979] AC 609.

Circumstantial evidence

146. Where the evidence relied on is entirely circumstantial the court must be satisfied that the facts are inconsistent with any conclusion other than that the contempt in question has been committed: Hodge's Case [1838] 2 Lewin 227; and that there are "no other co-existing circumstances which would weaken or destroy the inference" of guilt: Teper v The Queen [1952] AC 480, 489. See also R v Blom [1939] AD 188, 202 (Bloemfontein Court of Appeal); Martin v Osborne [1936] 55 CLR 367, 375. It is not, however, necessary for the court to be sure on every item of evidence which it takes into account in concluding that a contempt has been established. It must, however, be sure of any intermediate fact which is either an essential element of, or a necessary step on the way towards, such a conclusion: Shepherd v The Queen 170 CLR 573 (High Court of Australia).

56. The overwhelming inference I draw in these circumstances of this case is that the fact the domain names have not been transferred is because Mr Knight has not taken any steps to do so. There is no basis on which to imagine that the transfer has failed due to inadvertence or a technical computer problem. I am sure that is not what has happened. I find that Mr Knight is in contempt.

#8 Failure to pay the claimant's costs of £71,496.63 plus interest accruing daily at (i) the Bank of England base rate plus 1% from 15 November 2010 until 22 March 2011 and (ii) the judgment rate thereafter [Trial order paragraphs 7 and 8]

57. Mr Knight was ordered to pay costs and has not done so. However the claimant did not rely on this alleged contempt before me. In those circumstances the proper thing to do is to dismiss ground 8.

#9 infringement of registered Community trade mark TOO FAST TO LIVE TOO YOUNG TO DIE (+ device) and passing off by use (of the words, the device and the words and device together) in trade including (i) on the defendant's website and (ii) as the name of a limited company [Trial order paragraphs 2(a)(vi), 2(b)(v) and 2(b)(end)]

58. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

a. infringe the rights conferred by any of the following trade mark registrations that is to say

…

(vi) Community Trade Mark No 5,805,528

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

…

(v) The words "Too Fast to Live Too Young to Die";

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

59. It is convenient to refer to the words Too Fast to Live Too Young to Die as the TFTLTYTD slogan.
60. I will consider use on the website first. In fact this issue has already been considered to some extent in relation to delivery up (ground #1) above. Taking the same example used for ground #1, Mr Knight's website (www.divineapparel.co.uk) as at 13^th June 2011 includes a scarf bearing the skull and crossbones device which includes the TFTLTYTD slogan. It is identical to the claimant's device shown in the trial judgment at paragraph 160. Mr Knight's website is offering the scarf for sale.
61. As regards Community Trade Mark infringement, the trial judgment, paragraph 167 finds that the use of this logo on t-shirts infringes the relevant CTM. The fact the logo is now on a scarf rather than a t-shirt is not a material difference.
62. As regards passing off, the offering for sale of an item bearing these words alone is an act which I have already found in my trial judgment to be an act of passing off (judgment paragraph 168 and, the extent that this is a material consideration, see paragraph 165 which makes clear I was considering t-shirts and scarves).
63. Mr Knight's offering of these items is not a mistake or an accident. As I have said above, Mr Knight plainly knew of the terms of the order, has breached the order and plainly knows of the facts which made his conduct a breach.
64. The front page of the website also uses the slogan "Too Fast to Live Too Young to Die Clothing Company" at the bottom (JWR 10 p143). It also appears on other pages in the site. My finding about the use of the TFTLTYTD slogan alone at judgment paragraph 168 is applicable to this use on a website selling clothing. The addition of "Clothing Company" makes no difference whatever. It is plain passing off, breach of the order and a contempt.
65. Accordingly on this ground #9 (i) I find that Mr Knight is in contempt of court as a result of his website.
66. Ground #9(ii), relates to the company Too Fast to Live Too Young to Die Ltd. During the proceedings Mr Knight incorporated a company using that phrase for its name. The company is No. 7438336 and was incorporated on 12^th November 2010. Mr Knight was named as the sole director on incorporation and was named as the sole shareholder of the single £1.00 share in the company.
67. I have little doubt that Mr Knight has incorporated this company with a view to using it to further his efforts in passing off his goods as and for the goods of the claimant. I also have considerable sympathy with the claimant in trying to address Mr Knight's behaviour as a whole. His continued infringements of the claimant's rights are manifest and they are numerous. To produce detailed evidence pinning down all of them is an impossible task, certainly impossible at reasonable cost. That is part of the vice of Mr Knight's conduct but nevertheless I remind myself that this is a committal application. Considering ground #9(ii), the contempt alleged is infringement of trade mark and passing off by the use of the words "Too Fast to Live Too Young to Die" in trade as the name of a limited company. It seems to me that for this to be proved would require evidence that Mr Knight is trading using the company. I have not had my attention drawn to any material which shows that Mr Knight is doing that. I am not satisfied to the relevant standard that the mere existence of this company constitutes a breach of the trial order by Mr Knight.
68. In summary I find Mr Knight to be in contempt on ground #9(i) but I reject ground #9(ii).

#10 infringement of the copyright in the claimant's TOO FAST TO LIVE TOO YOUNG TO DIE device [Trial order paragraphs 2(c)(i)]

69. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

c. infringe the copyright in the following Works:

(i) The "TOO FAST TO LIVE TOO YOUNG TO DIE" device shown at paragraph 22(b) of the Particulars of Claim;

…

70. The device shown at paragraph 22(b) of the Particulars of Claim is the claimant's "TOO FAST TO LIVE TOO YOUNG TO DIE" device which comprises those words around a skull and crossbones, has already been referred to above and is shown at paragraph 160 of the trial judgment.
71. Mr Knight's scarf referred to in ground #9 bears a device which is identical. Mr Knight's logo is obviously a copy of the claimant's logo and I so held in paragraph 170 of the trial judgment. There is no excuse and I find Mr Knight in contempt on this ground #10.
72. Mr Rawkins' affidavit exhibited various pages from Mr Knight's website and on them he identified with a red circle a number of occasions on which Mr Knight had used a device which appeared to be the skull and crossbones part of this logo alone, without the slogan but at least sometimes the word London across it. I did not consider this sort of usage by Mr Knight at trial and made no findings about it one way or another. While it may well give rise to an arguable case of copyright infringement and for that matter may give rise to an arguable case of trade mark infringement and passing off, Mr Ward did not press the argument before me. Moreover neither Mr Rawkins' affidavit nor the application notice made it clear whether this sort of usage was or was not pressed as being an alleged contempt and in my judgment if and insofar as this point was to be taken, the formal requirements for a committal application in this respect have not been complied with. I reject any allegation that Mr Knight's use of the skull and crossbones itself, without the slogan, is a contempt.

#11 infringement of registered Community and UK trade marks for the Vivienne Westwood Orb mark and passing off by use in trade including the Defendant's website. [Trial order paragraphs 2(a)(ii), 2(a)(iii) and 2(b)(end)]

73. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

a. infringe the rights conferred by any of the following trade mark registrations that is to say

…

(ii) Community Trade Mark No 5,558,788;

(iii) United Kingdom Trade Mark No 1,341,566

…

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

74. The two registered marks are for the same orb device, shown at paragraph 115 of the trial judgment. The specifications of goods are set out there at paragraph 116. Annex 5 to the trial judgment shows a garment offered by Mr Knight in which he uses the words "Red Planet Westwood" and an orb. It is dealt with in the judgment at paragraphs 124 and found to infringe the trade marks at paragraph 129.
75. Mr Knight's website (www.divineapparel.co.uk) as at 13^th June 2011 includes the very same garment which appeared in annex 5 to the trial judgment. It is at page 174 of exhibit JWR 10. This is a plain contempt. No excuse has been offered.

#12 infringement of the copyright in the claimant's VIVIENNE WESTWOOD + Orb device [Trial order paragraphs 2(c)(i)]

76. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

c. infringe the copyright in the following Works:

(ii) The "VIVIENNE WESTWOOD and ORB" device shown at paragraph 22(c) of the Particulars of Claim;

…

77. There is an obvious trivial typographical error in ground #12. It should refer to paragraph 2(c)(ii) rather than 2(c)(i). The device is shown in the judgment paragraph 119. I found that copyright subsisted in it at paragraph 120 and I found that it had been infringed by the garment at Annex 5 to the judgment at paragraph 138. As I have addressed above, the same garment was still on the website in June 2011. It is a plain contempt.

#13 Passing off by use of WESTWOOD in trade including the defendant's website [Trial order paragraphs 2(b)(i)]

78. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

(i) The word "Westwood";

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

79. Mr Knight usually uses the word "Westwood" in the composite phrase "Red Planet Westwood" and I found that to be passing off at paragraph 145. I also dealt with his frequent use of "westwood" in my finding at paragraph 222 that his conduct as a whole amounted to passing off.
80. The garment shown at Annex 5 to the trial judgment and still present on Mr Knight's website on 13^th June 2011 is an example of that usage and has been found to amount to passing off. As before there is no excuse for the continuation of its being offered for sale in June 2011 and I find Mr Knight to be in contempt on this ground.
81. Another example is a garment shown at p175 of exhibit JWR 10 which is a t-shirt bearing the words "RED PLANET WESTWOOD" in an italicised script under one of Mr Knight's orbs which looks the same as the orb in Annex 5 to the trial judgment. The finding at trial in paragraph 145 means that this is also passing off. The fact that this particular garment was not before me at the time is not relevant. I do not need to make any new findings of fact to reach the conclusion that it is passing off and therefore a breach of the trial order. It is a plain contempt.

eBid

82. Mr Rawkins' affidavit also describes trading activity by Mr Knight on the internet through a site called eBid. eBid is similar to eBay and allows traders to sell goods to the public. Exhibit JWR 6 shows that on eBid as at 25 October 2011, Mr Knight (aka Saint artjunkie) was offering various t-shirts / vests for sale. The t-shirts themselves may or may not cause difficulty, it is hard to tell. One carries an image of a skull in a pilot's helmet and there may be one of Mr Knight's infringing orbs at the bottom but it is hard see.
83. In any event all the t-shirts are offered by reference to the strap line "Red planet all westwood saints d&g smith t-shirt" or "Red planet large vest all westwood saints d&g smith t-shirt" and similar. This is a mixture of a number of well known clothing brands. "Red planet westwood" was used by Mr Knight to pass off goods as the claimant's (see judgment paragraph 145), plainly d&g refers to Dolce & Gabbana and "All Saints" are another well known clothing brand. Whether "Smith" is a nod to Paul Smith (another famous clothing brand) I cannot say.
84. In my judgment this eBid site is another contempt of court on ground #13. My findings in the judgment related to use of "red planet westwood" alone in relation to clothing but this approach is not materially different.

#14 Passing off by use of WORLD'S END in trade including the defendant's website [Trial order paragraphs 2(b)(ii)]

85. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

…

(ii) The word "World's End";

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

86. I addressed "World's End" in the trial judgment at paragraph 171-175. I found Mr Knight's use of that term in combination with other famous Vivienne Westwood marks to be passing off. Although the examples of the "other famous marks" given in the brackets in paragraph 174 are just the word Westwood and the orb, the finding was clearly not limited simply to those two other famous marks (c.f. paragraph 157 and the overall finding at paragraph 222). Whether "World's End" alone without any other famous Vivienne Westwood marks amounted to passing off was not a question which arose (judgment paragraph 175).
87. Mr Knight's website (www.divineapparel.co.uk) as at 13^th June 2011 includes a belt marked "Worlds End". It is at page 177 of exhibit JWR 10. At paragraph 178 the belt is placed under the phrase "Worlds Ends Apparel" beside another belt marked "Let it Rock" under the phrase "Let it rock Apparel". The Worlds End belt appears to have a ram's head on it as well which is a similar ram's head to the one shown in Annex 14 to the trial judgment on a t-shirt. I held that that presence of the ram's head did not negative passing off in paragraph 174.
88. Although the belt itself was not considered in the trial judgment, to find that this amounts to passing off does not involve considering a new case. It is in substance the same issue as the one I considered in the trial judgment at paragraph 174. The belt is not being sold in isolation from Mr Knight's other uses of famous Vivienne Westwood marks. It is on the same website (www.divineapparel.co.uk) as the garments I have considered above. As to that website:

i) The front page of the site, from which users can click to enter, carries the TFTLTYTD slogan along the bottom.

ii) The "About us" page lists what are claimed to be registered trade marks owned and managed by "Saint Artjunkie Clothing" (one of Mr Knight's trading styles) and the list includes "Let it rock apparel", "Worlds end apparel" and "too fast to live to young to die".

iii) Another page from the site (page 151 of exhibit JWR 10) is headed with the TFTLTYTD slogan and with a plain copy of the claimant's skull and crossbones device. In fact it is one of the pages showing the scarf I have mentioned already.

iv) The site also carries infringing versions of Vivienne Westwood's famous orb device, the words "Westwood" and "Red Planet Westwood" and the TFTLTYTD device and slogan.

89. I am sure the offering for sale of the "World's End" belt in this way amounts to passing off by Mr Knight and a breach of the trial order. There is no excuse and I find ground #14 to be proved.

#15 Passing off by use of LET IT ROCK in trade including the defendant's website [Trial order paragraphs 2(b)(iv)]

90. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

…

(iv) The word "Let it Rock";

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

91. I addressed "Let it Rock" in the judgment at paragraphs 150-159. I found Mr Knight's use of that term in combination with other famous Vivienne Westwood marks to be passing off (paragraph 157). I did not and did not have to decide whether "Let it Rock" alone without any other famous Vivienne Westwood marks amounted to passing off (judgment paragraph 159).
92. As I have already said Mr Knight's website (www.divineapparel.co.uk) as at 13^th June 2011 includes a belt marked "Let it Rock" beside his "Worlds end" belt. (page 178 of exhibit JWR 10).
93. Although the "Let it Rock" belt itself was not considered in the trial judgment, to find that this amounts to passing off does not involve considering a new case. It is in substance the same issue as the one I considered in the trial judgment at paragraph 157. The phrase is being used in combination with a host of other famous Vivienne Westwood marks for the same reasons as I have gone through in relation to the "Worlds End" belt.
94. I am sure the offering of the "Let it Rock" belt in this way amounts to passing off and a breach of the trial order. There is no excuse and I find ground #15 to be proved.

#16 Passing off by use of ARM & CUTLASS device in trade including the defendant's website [Trial order paragraphs 2(b)(vi)]

95. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

…

(vi) The "ARM and CUTLASS" device shown at the centre of the mark shown at paragraph 9(h) of the Particulars of Claim;

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

96. I addressed this in the judgment at paragraphs 176-182. The garment I was considering from Mr Knight was at Annex 10 to the trial judgment. In paragraphs 180-182 I found as follows:

180. There is no trade mark infringement. A prominent element in the CTM is the word Anglomania. Mr Knight does not use it. He does not infringe that CTM.

181. Mr Knight's t-shirt in Annex 10 with the arm and cutlass carries no other Vivienne Westwood marks (the name, the word westwood alone and/or the orb). The shirt has the mark Saint Art Junkie on it. These facts will serve to reduce the risk of confusion as compared to some of the other instances in this judgment. However the t-shirt takes its place amongst all the other uses of Vivienne Westwood marks by Mr Knight on his websites and that means that someone seeing the t-shirt will encounter it that context. This is one of the claimant's weaker cases in my judgment but the overall context means that I am satisfied it is passing off too.

182. Again I do not have to decide what the position of this shirt would be out of context.

97. What is clearly the same t-shirt as was shown in Annex 10 to the trial judgment is on Mr Knight's www.divineapparel.co.uk website on 10^th October 2011 (p194 exhibit JWR 11). Albeit that I found it was one of the claimant's weaker cases I was satisfied that in the overall context of Mr Knight's website it was passing off.
98. I considered the overall effect of Mr Knight's website as at June 2011 above. In its form in October 2011 the following may be said:

i) The front page of the site still carries the slogan "TOO FAST TO LIVE TOO YOUNG TO DIE" along the bottom.

ii) The "About us" page still lists what are claimed to be registered trade marks owned and managed by "Saint Artjunkie Clothing" including "Let it rock apparel", "Worlds end apparel" and "too fast to live to young to die".

iii) Another page from the site (page 201 of exhibit JWR 11) is headed with the slogan "Too fast to Live To Young to Die" and with a plain copy of the claimant's skull and crossbones device. It is still showing the scarf I have mentioned already.

iv) The "Worlds end" and "Let it Rock" belts are still present.

99. The precise context in which Mr Knight's Arm and Cutlass t-shirt appears in October 2011 is not the same as it was at trial. However in my judgment there is no material difference between the position considered in paragraph 181 of the judgment and the position in October 2011. I am quite sure Mr Knight is still passing off in this respect and is in breach of the trial order. This is another contempt.

#17 Passing off by use of I ♥ CRAP device in trade including the defendant's website [Trial order paragraphs 2(b)(viii)]

100. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

…

(viii) The I LOVE CRAP device set out (on a badge) at Annex 4 to the Judgment;

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

101. I addressed this in the judgment at paragraphs 193-201. Mr Knight's t-shirt was at Annex 11 to the judgment. At paragraph 200 I held:

200. As regards passing off, Mr Knight's T-shirt in Annex 11 carries no other mark (neither Vivienne Westwood marks nor Saint Art Junkie etc.). On the eBay site Mr Knight sells t-shirts like this under and by reference to the other marks associated with the claimant (not least the words Westwood and Vivienne). Thus the purchaser encounters the t-shirt in that context. This is one of the claimant's weaker cases in my judgment but the overall context means that I am satisfied it is passing off. Again I do not have to decide what the position of this shirt would be out of context and I decline to do so.

102. The very same t-shirt was still on Mr Knight's www.divineapparel.co.uk website on 10^th October 2011 (p194 and p196 exhibit JWR 11). I have addressed the presence of other famous marks of the claimant on that site at that date under ground #16. I am sure Mr Knight is still passing off and is therefore in breach of the order. I find this ground of contempt proved.

#18 Passing off by use of the Lips device in trade including the defendant's website [Trial order paragraphs 2(b)(vix)]

103. Paragraph 2 of the trial order provides (so far as material):

The Defendant (whether acting by himself, his servants, agents or otherwise howsoever) shall not:

…

b. pass off goods as and for goods of the Claimant or goods approved by or otherwise associated with the Claimant by the use of the marks at 2(a) above, or by the use of the following marks/words or devices:

…

(ix) The "LIPS" device set out (on a T-shirt) at Annex 2 to the Judgment;

…

or by the use of any other designation confusingly similar to the marks/words or devices at 2(a) or (b) above represent that goods are the goods of the Claimant or goods approved by or otherwise associated with the Claimant.

104. I addressed this in the judgment at paragraphs 202-204. Mr Knight's t-shirt was at Annex 12 to the judgment. At paragraph 204 I held:

200. As regards passing off, Mr Knight's T-shirt in Annex 12 carries no other marks (neither Vivienne Westwood marks nor Saint Art Junkie etc.). The T-shirt appears amongst all the other uses of Vivienne Westwood marks by Mr Knight on his websites and that means that someone seeing the T-shirt will encounter it that context. This is one of the claimant's weaker cases in my judgment but the overall context means that I am satisfied it is passing off. Again I do not have to decide what the position of this shirt would be out of context and I decline to do so.

105. The very same t-shirt was still on Mr Knight's www.divineapparel.co.uk website on 13^th June 2011 (p146 exhibit JWR 10) and on 10^th October 2011 (p195 exhibit JWR 11). I addressed the presence of other famous marks of the claimant on that site on each date under ground #14 (June 2011) and ground #16.
106. Despite the claimant's submissions, I reject this point as a contempt of court. It seems to me that it crosses the line between the application of findings I have already made and deciding a fresh cause of action. The former can be done on the evidence before me but the latter cannot. As I said in the judgment the "LIPS" t-shirt is one of the claimant's weaker cases. It is after all simply a t-shirt with an image of lips on it. In my judgment it was the weakest. I am quite sure the sale of that t-shirt in the context of Mr Knight's website at trial was passing off (as I held) but I entertain a doubt about that conclusion on the basis of the website in October 2011. For example the website in October makes very little use of the word "Westwood" or an orb (there is a single "Red Planet Westwood" t-shirt at page 222 of JWR 11).
107. I rather think there is a good case of passing off in context of all the other of the claimant's indicia on the website but that is not the test for contempt of court. I also recognise that it will be frustrating for a claimant to be faced with a defendant who shifts and changes their manner of trading in this way, especially given how easy it is to do on a webpage. However none of these things justify a finding of contempt of court. To decide whether that was so would require me to conduct a fresh trial with full evidence.

Contempts – summary

108. I find that grounds #1 to #7 and #9 to #17 are proven contempts of court. I reject grounds #8, #9(ii) and #18.

Conduct over time

109. The breaches of the mandatory orders (grounds #1 to #7) are continuing. At the date of this hearing Mr Knight has not delivered anything up, served the affidavit or transferred the domain names.
110. Many of the contempts (#9 to #17) arise from Mr Knight's website. The site has changed over time. Before trial (on 21^st January 2011) the front page carried the words "Too Fast To Live To Young to Die", the copy of the claimant's skull and crossbones device and a list of labels including "Red Planet Westwood", "Worlds end apparel" and "Let it rock apparel". The main menu also referred to "Red Planet Westwood", "Worlds end apparel" and "Let it rock apparel". The position in the period after judgment can be represented by the website as at 13^th June 2011 which I have addressed above. The only obvious changes were to delete "westwood" from "Red Planet Westwood" leaving "Red Planet" both from the front page and main menu page, to remove the copy of the claimant's skull and crossbones device from the front page and delete "Red Planet Westwood", "Worlds end apparel" and "Let it rock apparel" from the list on the front page. It is obvious therefore that Mr Knight was taking some steps to comply with the judgment and order, in particular he reduced his direct usage of "westwood" considerably. But for the reasons I have considered above, these changes were utterly insufficient to properly comply. Indeed the fact they were undertaken seems to me to be an aggravating factor. The changes show that Mr Knight is well aware of the judgment (not that this was ever in doubt) and is seeking to pick and choose those aspects he is prepared to comply with and those he is not.
111. The website had changed again by October 2011. Mr Rawkins exhibited a print off from it on 10^th October (exhibit JWR 11 to Mr Rawkins' affidavit) and another on the day of swearing on 26^th October (JWR 12). The front page, main menu page and other pages of the site on 10^th October have been addressed above in the context of contribution to passing off in combination with certain specific products. There is no difference in this respect between the site on 10^th October and 26^th October.
112. As at 26^th October:

i) Grounds #9 and #10 continued. The scarf referred to was on the website on 10^th October 2011 (p257 of JWR 12). The slogan appears on the front page (ground #9).

ii) Grounds #11, #12 and #13 continued. The vest at Annex 5 to the judgment is still on sale at p259 of JWR 12. The t-shirt with italicised "RED PLANET WESTWOOD" which I considered under ground #13 is also present at p260 of JWR 12.

iii) Grounds #14 and #15 continued. The "Worlds end" and "Let it Rock" belts are still present (p263 JWR 12) and in combination with the other indicia on the site, amount to passing off.

iv) As to ground #16, the Arm and Cutlass t-shirt seems to have been taken off the site after trial and was not there in June 2011. However it was there on 10^th October (see ground #16 above) and seems to have gone again by 26^th October.

v) As to ground #17, the "I love crap" t-shirt seems also to have been taken off the site after trial and was not there in June 2011, but returned to be present on 10^th October and was still present on 26^th October (p233 JWR 12).

113. The first time the committal application was due to be heard was 20^th December 2011. A print out was taken on 7^th December 2011 and copies filed at court (bundle 2 tab 19). The site has changed a little. The front page refers now to the company "Too Fast to Live Too Young to Die Ltd" at the bottom but makes no other reference to the claimant's marks. Despite this reference to the company in this way, there is no evidence the company is actually trading. However the site is therefore continuing to sell clothing using the TFTLTYTD slogan (without or without "ltd"). This is a continuation of the contempt found above in relation to the passing off on ground #9.
114. The "about us" page mentions "Let it rock apparel", "Worlds end apparel" and "too fast to live to young to die". An "I love crap" t-shirt and an "arm and cutlass" t-shirt are present (Bundle p385, 391, 396).
115. Taking the "I love crap" t-shirt first, this was considered above under ground #17. Now the "I love crap" t-shirt has "Saint artjunkie" and a crowned skull device emblazoned across the bottom. The crowned skull device is another device Mr Knight uses sometimes. It is not one the claimant complains of. I am not in a position to say whether that form of the "I love crap" t-shirt is passing off. Mr Ward did not make submissions either way. This is not the appropriate occasion to make a finding of that kind. Insofar as I am asked to hold it to be in contempt I refuse to do so.
116. The "arm and cutlass" t-shirt was considered under ground #16 above. It is the same t-shirt as at annex 10 to the trial judgment. However its context now is different from the context considered in ground #16. The website as at 7^th December is quite different from the one in its form in June and October 2011. As far as I can see the TFTLTYTD skull and crossbones device has gone, the word "westwood" has gone and there are no orbs. The "Too Fast to Live Too Young to Die" slogan still appears on the front page but that is the only use of it to which I have had my attention drawn. Mr Ward did not make submissions either way. I will make no finding that the "arm and cutlass" t-shirt in the context in which it appeared in December 2011 amounts to passing off. Insofar as I am asked to hold it to be in contempt I refuse to do so.
117. A print out was also taken from the site on 21^st March 2012. The front page still uses the slogan at the bottom, rendering it as "Too Fast to Live Too Young to Die Ltd". That is a continuation of the contempt on ground #9.
118. The "I love crap" and "arm and cutlass" t-shirts are still present but in the same manner as at 7^th December and my rulings on those applies.

eBid

119. The pages from eBid on 8^th December (Bundle 2 p414) showed that the contempt in this respect on ground #13 continued at that time. Indeed it appears that Mr Knight's use of the name "Westwood" was expanding on sites distinct from his www.divineapparel.co.uk website because also at 8^th December 2011 on eBay he was offering more clothing by reference to the name "westwood" (Bundle 2 p430).

Contempt – overall conclusions

120. It is clear that Mr Knight has adjusted his conduct considerably as time has gone on. Changes were made to the website after trial but they were plainly not enough. Further changes were made after the committal application was served and a number of grounds for contempt in existence when the application was brought have ceased. However one serious contempt of court remains on the website, i.e. Mr Knight's use of the slogan "Too Fast to Live Too Young to Die". It is a website selling clothing. This is a plain act of passing off and the judgment held that the use of the words alone in relation to clothing was passing off.
121. The position on eBid and eBay is not without note either. Although Mr Knight does appear to have stopped using "westwood" or his orbs on his own site, he is still using westwood and red planet westwood (or words to that effect) on eBid. There may be a relevant orb on the t-shirt on eBay but I am not sure and I make no finding that it is present.
122. Of course his failures to comply with the mandatory orders continue.
123. Pulling all this together the position is that I have a defendant who has acted in clear, flagrant contempt of court. His contempts are numerous, substantial in nature and have continued for a very long time. His adjustments to his behaviour indicate that Mr Knight tries at every turn to get away with as much as he can but when confronted, retreats somewhat. However those retreats are never enough to comply with the court's orders. He simply will not face up to the findings of the court.

Further emails

124. On 30^th March I received a further email from Mr Knight. It reads:

Subject: INFORMATION FOR JUDGE BIRSS - Westwood V knight

Tony Knight

Too fast to live to young to die ltd

[address]

30th march 2012

Dear Judge Birss

i have now passed over details of evidence lost by your courts this being PCC, i have asked the parlimentry ombudsman to investigate the conduct of the courts as loosing evidence in court case did jepodise my case.

as gesture of good will i will be sending you the lost evidence segments this will be also sent to dame vivienne westwood all the information i'm  sending  was sent for your attention prior the original hearing and all tracking numbers and date recieved by the courts have been passed over to the ombudsman to allow them to investigate.

i have also asked for full retrial, i will also be working very closely with the ombudsman and my MP.

thank you

Tony Knight

Cc Taylor Wessing

125. On 5^th April I received another email from Mr Knight:

Subject: Parlimentry Ombudsman Knight V Westwood

Dear Jason Rawkins and Judge Birss

I am just keeping you informed AND UPTO DATE that the Parlimentry Ombudsman has now recieved my complaint including copies oF all the lost evidence including there Royal mail tracking numbers this includes the evidence that was sent prior to the hearing in march 2011. i or course will send you copies of the lost evidence. As you know i still suffering from depression so i ask you kindly respect this.

Can you please confirm receipt of this email. by both parties

Yours Faithfully

Tony KNIGHT

126. In my judgment neither message makes a difference to any of the matters I have to decide.

Sanction

127. The claimant submitted that it was not usually appropriate for the applicant in a contempt application to be invited to comment on the appropriate level of punishment for a contempt of contempts since that is a matter for the court citing Re M (Contact Order) [2005] EWCA Civ 615. The only other piece of assistance I have been given is a citation from the judgment of Lawrence Collins J (as he then was) in Crystal Mews v Metterick [2006] EWHC 3087 (Ch) at paragraph 8 concerning the object of the penalty being both to punish conduct in defiance of the court's order as well as serve a coercive function by holding out the threat of future punishment as a means of securing the protection which the injunction is primarily there to do.
128. The first question I need to address is whether I should at this stage go ahead and determine the punishment. I must say I had the distinct impression that that would be the preferred course as far as the claimant is concerned.
129. In Taylor v Persico (Court of Appeal, Parker and Stocker LJJ and Sir David Croom-Johnson) unreported 27^th January 1992 and referred to in Part 2 of the White Book at 3C-87, the Court of Appeal allowed an appeal from an order for immediate committal. In his judgment (with which Stocker LJ and Sir David Croom-Johnson agreed) Parker LJ referred to a short report of a case (Shoreditch County Court Bailiffs v. de Madeiros) in the Times on 24th February 1988 where:

the Court of Appeal announced that, once contempt had been proved, "no penalty should be imposed before the contemnor had been given an opportunity to address the court as to penalty and to apologise to it for the contempt."

130. Parker LJ acknowledged that in that case the appellant contemnor was unrepresented unlike the case before the court below. Looking at the matter more generally, Parker LJ concluded:

… in my judgment, when a man is accused of contempt and the judge is intending to impose a sentence of imprisonment, he should, whether the contemnor is represented or not, give a proper opportunity to mitigate, the more particularly if he appears in the earlier stages of the action to have been reluctant, or even unwilling, to consider any sentence other than immediate imprisonment. It may well be that if, after mitigation, he had remained of the view that an immediate committal was necessary, the term of imprisonment could have been less than it in fact was.

131. I also note that the commentary in the White Book in 3C-87 states as follows:

A judge exercising the jurisdiction to punish for contempt will be well advised to invite, although he cannot require, the alleged contemnor to be legally represented. In this way he will obtain the assistance of counsel or solicitors in considering his powers and the circumstances of the case (R. v Tyne Tees Television Ltd , The Times, October 20, 1997, per Beldam L.J., Ognall and Buckley L.JJ.).

132. These authorities give powerful reasons why a court should not move to sentence a respondent without giving him an opportunity to present mitigation and an invitation to be legally represented. Set against that is that fact Mr Knight has had those opportunities in this case already. I have already found that Mr Knight's absence from the hearing was voluntary. It might be said therefore that to adjourn the case for sentencing simply allows Mr Knight to benefit from his non-attendance at the committal hearing.
133. It seems to me that the seriousness of Mr Knight's contempts is itself a reason why I should not determine the sentence in this reserved judgment at this stage. I bear in mind the observation of the Court of Appeal in In the matter of G [2003] EWCA 489 (Civ) in paragraph 21 that "Circumstances vary widely, but a committal order, even if suspended, is a last resort normally reserved for serious, intentional and, in most cases, repeated contempt of court which has been established by due process […].".
134. On the material available to me I will say no more at this stage than the following, the contempts are of such a character and include serious continuing breaches that I seriously doubt a fine would be appropriate and I doubt whether a suspended sentence would be appropriate either. Given that Mr Knight has had ample opportunity to present his side of the matter, this is a case in which immediate imprisonment is a real possibility.
135. With that in mind it seems to me that this may be a proper case in which to issue a bench warrant to bring Mr Knight before the court. Before making such an order I need to consider two matters. First whether I have jurisdiction to make such an order at all and second whether, even if I do, it is a proper order to make in the circumstances.

Jurisdiction of circuit judge sitting in the county court to issue a bench warrant

136. The first difficulty is knowing where to start. There appears to be no county court form for an arrest warrant. There is a county court warrant for committal to prison (form N80) and it includes the possibility of an order to the prison Governor to bring the contemnor before a judge of the court. There appears to be no reference to bench warrants in the CPR and few to warrants for arrest (RSC 52.7A). In Zakharov v White [2003] EWHC 2463 (Ch) Evans J heard an application to set aside a bench warrant issued by Etherton J. In the section of his judgment from paragraph 29 to 35 headed "Jurisdiction to issue the bench warrant" the learned judge considered the matter in detail, referring inter alia to a judgment of Butler Sloss LJ in a wardship case, Re B [1994] 2 FLR 479. In the passages from Re B cited by Evans J, Butler Sloss LJ (as she then was) had described the power to issue a bench warrant as one made under the inherent jurisdiction of the High Court and ancillary to the investigation by the court of the relevant issues before it. Hobhouse LJ described the power to order the arrest of a person so that he may be brought before the court as a well established part of the jurisdiction in wardship and is available in other aspects of civil procedure should, exceptionally, the necessity arose. The particular question arising in Zakharov was whether the court (the High Court) had jurisdiction in the absence of an established contempt of court. Evans J held that the court had jurisdiction to issue a bench warrant without it being limited to a case in which contempt had already been found and refused to set aside the order of Etherton J.
137. Then in paragraph 37 of his judgment Evans J considered an argument that the arrest of the defendant in that case infringed the defendant's right to liberty under article 5 ECHR as the procedure was not "prescribed by law" in accordance with article 5(1) ECHR. The judge found no infringement of Art 5, holding that the jurisdiction is not a general discretion to arrest without properly formulated principles as to the circumstances in which it can be exercised. It exists and is exercisable for the purposes and in the circumstances set out by the Court of Appeal in Re B.
138. In Law Society v McPhail (Times 15 April 2011 and Lawtel 11 Feb 2011) Norris J decided to issue a bench warrant to secure the attendance of the respondent, the alleged contemnor, at the hearing of a committal application. Norris J took that course instead of proceeding to hear the committal application in the absence of the respondent. His reasons were addressed in paragraphs 9 and 10:

9. I have issued a bench warrant for Mr. McPhail's attendance at the next hearing because I consider that attendance of a person charged with contempt is important for at least five reasons. First, as a matter of fairness, because where liberty is at stake the person charged should appear both to hear what is said against him and to provide answers if he chooses. Secondly, attendance at the committal hearing eliminates the risk of a challenge to the hearing on the ground that some point was or was not made, or a fresh point had arisen which there had been no opportunity to answer. Thirdly, the function of a committal application is not to issue a bench warrant for the arrest of the person committed; it is to commit that person to prison there and then if found guilty of contempt and that function is frustrated if the person does not attend the hearing. Fourthly, I think it is necessary for the alleged contemnor to attend to secure the integrity of the process of the court. Fifthly and lastly, there is a matter of public perception. It should not be a matter of choice whether the alleged contemnor attends court or not to answer the charge that he is ignoring the orders of the court. See Lexi Holdings v Luqman [2009] EWHC 496 (Ch).

10. For those reasons I have issued a bench warrant, so that Mr. McPhail must attend court; but I have adjourned the application for one further week to enable him to obtain the advice of the solicitors he has now retained. I have given a clear indication that the matter will proceed at the adjourned hearing because I consider that Mr. McPhail has had more than sufficient opportunity to answer the charge against him. The question now is whether the Society will be able to prove beyond reasonable doubt on the material before the court that Mr. McPhail is in breach of my order of June 2010 in the identified respects. On that, of course, I have as yet formed no view.

139. Thus in that case Norris J issued a bench warrant to bring the alleged contemnor before the court at the hearing of the application itself whereas I have heard the application in any event for the reasons given above. However the learned judge was not suggesting that bench warrants should only be issued in circumstances like those before him.
140. Taking all this together, it is clear that the High Court has the jurisdiction to issue a bench warrant in appropriate circumstances. It is part of the inherent jurisdiction of the court, particularly to ensure that other orders it makes are complied with.
141. What of the county court? The powers of the county court in contempt cases were considered by the Divisional Court in Barnes v Seabrook [2010] EWHC 1849 (Admin) (Hooper LJ and Parker J). The issue in that case was concerned with so called criminal contempts, that is to say contempts which interfere with the administration of justice and thus constitute public wrongs (Hooper LJ paragraph 6). The power of the county court to try and punish criminal contempt is a limited one (paragraph 9), however Hooper LJ explained that the county court has a common law power to punish breaches of orders and undertakings etc. as a civil contempt (paragraph 10). The maximum sentence is one of two years imprisonment by virtue of s14(1) of the Contempt of Court Act 1981 and for that purpose the county court is treated as a superior court (s14(4A)). The case before me is a civil contempt for breach of orders of the court.
142. The Court of Appeal considered the powers of the county court in In the matter of G (supra) (The President, Dame Elizabeth Butler-Sloss, Mummery and May LJJ). That case also did not involve a breach of a specific court order (paragraph 20 of the judgement of the court). The county court's powers were addressed in paragraph 30. There the court held that:

A judge sitting in the county court has power under section 118 of the County Courts Act 1984 to commit for contempt where the contempt occurs in the face of the court; and power under Order 29 of the County Court Rules (which applies generally to family proceedings) to make a committal order for a party's breach of a judgment or order of a county court or for breach of an undertaking given to the court (Bush v. Green [1985] 1 WLR 1143). The present case was neither of these. [...]

143. The court went on to consider Bush v Green further (another case like In the matter of G), considered the effect of s38 of the County Courts Act 1984 but held that what was decisive in that case was that RSC Order 52 rule 1(2)(1)(iii) provided the relevant sorts of orders for committal could only be made by the Divisional Court. Again, that was not concerned with committal for breach of an order.
144. Since the county court has power to issue a committal order, i.e. a warrant of committal to prison, in a case of breach of an order, then it might be said to be unlikely if the court did not have the power to make what is a lesser order in some respects, to compel attendance at court. However that does not answer the question.
145. It seems to me the answer is provided by s38(1) of the County Courts Act 1984. In its current form this provides that

38.— Remedies available in county courts.

(1) Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.

(2) Any order made by a county court may be—

(a) absolute or conditional;

(b) final or interlocutory.

(3) A county court shall not have power—

(a) to order mandamus, certiorari or prohibition; or

(b) to make any order of a prescribed kind.

146. Regulations made under s38(3) limit the jurisdiction of county courts to make search orders and freezing orders is limited (although that limitation does not apply to the Patents County Court) but there is no limit in those regulations relevant to the case before me.
147. Section 38 does not confer on the county court a jurisdiction to hear a case it has no jurisdiction to hear. It is concerned with remedies and orders the court can make in proceedings properly before it. This committal application is properly before me, a circuit judge sitting in the county court. If this committal application was proceeding in the High Court then the High Court could make an order issuing a bench warrant to secure Mr Knight's attendance at court. Accordingly, by section 38 of the 1984 Act, an order to issue a bench warrant can be made by a county court. I may make such an order here in a proper case.

Is a bench warrant a proper order to make in these circumstances?

148. This is a reserved judgment which will be sent to the parties confidentially by email on 18^th April and handed down in court on 24^th April 2012. Mr Knight should attend the handing down but the fact he has not attended any other hearing of this committal application suggests to me he will not attend the next one either. If he does attend I will be able to hear his mitigation at that stage and decide on a proper punishment for his contempts of court. However since at this stage I do not know whether Mr Knight will attend, I do not know whether a bench warrant will be necessary.
149. All I need to say at this stage is the following:

i) This court has the power to issue a bench warrant to secure Mr Knight's attendance at court.

ii) Mr Knight should be before the court when I decide how to punish him for the contempts of court he has committed. I will then be able to hear any mitigation which may be put forward by him or on his behalf.

iii) Mr Knight would be well advised to obtain legal assistance in this matter. I strongly urge him to do so and to do so urgently.

iv) Mr Knight should attend the handing down of this judgment on 24^th April 2012 in order to present his mitigation. If he attends then there will be no need to issue a bench warrant.

v) If he does not attend, and in the absence of any compelling reason why not, it is likely that on 24^th April 2012 I will issue a bench warrant to bring Mr Knight before the court to decide on the proper punishment for his contempts of court.