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Cite as: [2012] EWPCC 36

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		Neutral Citation Number: [2012] EWPCC 36
		Case No: CC11P02928

IN THE PATENTS COUNTY COURT

Rolls Building
7 Rolls Buildings
London EC4A 1NL

10/08/2012

B e f o r e :

HIS HONOUR JUDGE BIRSS QC
____________________

Between:

	SUSSEX HEIGHTS (BRIGHTON) LIMITED	Claimant
	- and -
	TOM COADY	Defendant

____________________

Jeremy Heald (instructed by Bains Cohen LLP) for the Claimant
The defendant appeared in person

ON PAPER
____________________

HTML VERSION OF JUDGMENT
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His Honour Judge Birss QC :

This is an action for passing off. It came before me at a case management conference on 27^th January 2012 (see my judgment [2012] EWPCC 26) and again on 2^nd July 2012.

It is an unusual sort of passing off case. In Brighton there is a block of flats called Sussex Heights. The claimant is the management company for the flats. Mr Coady is a resident in the block. He has set up something called the Sussex Heights Residents Association and is the chairman of it. The residents association has a website at sussexheights.org. The claimant says that this website gives rise to passing off. By amendment the claimant also complains about another website of Mr Coady's. This is at sussexheightsresidentsassociation.org.uk. The websites are said to involve passing off essentially because they are said to represent that the sites are "official" sites for the building when they are not. The claimant says this has caused relevant actual confusion and loss and damage. The claimant also contends that Mr Coady's association is not entitled to call itself a residents association at all as a result of the effect of Guidelines from the Association of Residential Managing Agents. The root of that problem, says the claimant, is that a resident's association has to be recognised by the claimant. Thus according to the claimant unless it consents, Mr Coady's association of residents of Sussex Heights is not entitled to be called the Sussex Heights Residents Association.

With all respect to the parties, this case is in danger of occupying a disproportionate amount of their own and the court's resources. It is a storm in a tea cup. It is clear that the real problem is that the claimant does not like various things Mr Coady has put on his Sussex Heights Residents Association website(s). That problem has very little to do with allegations of passing off. There was mention of defamation at the hearing but it is not pleaded.

At the CMC on 2^nd July and subject to the point below, I gave directions intended to bring this case to a conclusion as quickly and cheaply as possible and with the minimum of expenditure on both sides. The claimant sought disclosure at the CMC. I refused on the ground that it would be disproportionate. There will be no cross-examination at trial.

There is clearly no love lost between the parties but they are going to have to live with one another as long as Mr Coady remains a resident of Sussex Heights. It is plain that this action should be settled and as far as I can tell the parties have been in almost constant negotiations.

Also at the CMC hearing, Mr Coady also submitted that the action had in fact settled at a meeting in late January of this year. The meeting took place after the hearing on 27^th January which gave rise to my earlier judgment which itself presaged the possibility of a settlement meeting. The terms of settlement were said to be set out in a document dated 30^th January 2012. The claimant contended it had not settled. Mr Heald, who appeared for the claimant instructed by Bains Cohen LLP, submitted that the document was a draft heads of agreement for the parties to work on. He relied on a first witness statement of Julian Laing, a director of the claimant.

The state of the materials was such that it was not possible to decide the matter at the hearing. Mr Coady had not had time to reply. I gave directions including a timetable for each side to file any further material they wished to rely on in relation to the issue. I would then decide the point on the papers without a further hearing. The directions for trial were made at the CMC as well so that there would not be any need for a further CMC in the event the action had not settled.

This is my judgment on the settlement point.

In accordance with the directions both sides filed further material, which I have read.

The document Mr Coady relies on is headed 'Proposed final settlement of "passing off" case between Sussex Heights (Brighton) Ltd and Tom Coady'. He also had another similar version of it. The document lists 18 terms in typescript with a few amendments in manuscript and has a 19^th term added in manuscript. There are initials by the names Julian Laing and Tom Coady and Val Philips has signed it by her name. There are other initials on the document too. Mr Heald submitted, based on Mr Laing's evidence, that the initials were to record that the heads of agreement were acceptable as heads of agreement but that the full binding agreement (which in fact was never created) was to have been signed later.

Broadly the terms involved the action coming to an end with the claimant paying Mr Coady's costs. Most of the terms relate to various websites the claimant and Mr Coady use. They reflect the fact that the real dispute between the parties relates to material put on these websites.

Mr Coady submits that the terms were agreed. He also submits that all the terms have been complied with save for three – the agreement by the claimant to pay his costs, the transfer of one internet URL to the claimant and the term that the agreement will be filed at court. If that were correct it might well be evidence that both sides regarded themselves as bound by the terms and would be evidence of an agreement having been reached.

In response the claimant field a second witness statement of Mr Laing. He maintains that agreement had not been reached and that the action has not settled. His evidence also goes through the various terms and on various points disagrees with Mr Coady that those terms have been implemented.

I am quite satisfied on the basis of Mr Laing's witness statements that the document in question was a draft heads of agreement and that this action has not settled. Accordingly it must continue.

Nevertheless the parties should sit down once again and attempt to settle their differences once and for all. It is clear that one of the real sticking points relates to the quantification of Mr Coady's costs. However it is possible for parties to a court case to agree a binding settlement whereby one side will pay the other side's properly assessed costs without them actually coming to an agreement about the correct level of those costs. That latter question appears to be one of the major problems here. On the basis of such a settlement, the court will usually be able to conduct a summary assessment of a party's costs as long as it is given the material on which to do so.