The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors

There are two issues on this appeal. The first is whether Mr Recorder Campbell QC erred when determining that despite advertising on a website, the Respondents were not responsible for the misrepresentation on a particular webpage relied upon for the purposes of the tort of passing off because they had no knowledge of it and did not intend it. The second is whether the Judge erred in accepting the oral evidence of the Third Respondent, Mr Sampson, that he did not know about the wording on the webpage despite what is alleged to be contradictory written evidence on the same issue. In relation to the second issue, the Appellant, the National Guild of Removers & Storers Limited (“NGRS”), seeks to rely upon fresh evidence which is said to undermine Mr Sampson’s credibility. Mr Recorder Campbell QC’s judgment dated 13 December 2016, is to be found at [2016] EWHC 3192 (IPEC).

NGRS is a trade body which represents and provides services to its members in the removal and storage business. Members are subject to rules and agree to uphold standards of competence and integrity and to be subject to monitoring. In return for an annual fee, members are entitled, amongst other things, to describe themselves as a “Member of the NGRS”. The First Respondent, Bee Moved Limited, (“BM”) is a removal and storage company. It was a member of the NGRS from 20 April 2006 until 25 June 2010. Mr Burns and Mr Sampson are both directors and 50% shareholders of BM.

It was alleged that as a result of certain advertisements appearing on pages on four websites after 25 June 2010, in which BM was described as a “Member of the NGRS” BM was liable in passing off, that the acts complained of were committed pursuant to a common design and that each of BM, Mr Sampson and Mr Burns were jointly and severally liable for them. This appeal relates to that description on the Really Moving website at www.reallymoving.com/removals/directory page (the “directory page”) in relation to BeeMoved Ltd (Crawley), BeeMoved Ltd (Brighton) and BeeMoved Ltd (Tunbridge Wells). It was common ground that the Really Moving website was a popular and successful website relating to house moving. BM, on its own behalf and that of its subsidiaries, had joined the site in 2004.

It was also common ground that: NGRS was the owner of goodwill and/or reputation in the title “NGRS”; that the statement that BM was a member of the NGRS was untrue in 2013; and that the wording complained of would have appeared to anyone who accessed the relevant page. Within a few days of receipt of a letter of claim, the offending words had been removed from the directory page.

At paragraph 23 of the Defence it was pleaded amongst other things, as follows:

“. . .

a.

It is admitted that the text set out in italics beneath subparagraph 23(a) would have appeared to anyone who accessed the page reached via the URL www.reallymoving.com/removals/directory?page=6 (“the RM Page”) of the website at www.reallymoving.com (“the RM Website”) after 25 June 2010 . It is denied that the Defendants or any of them caused or procured the presence of that text on the RM Page. Prior to the termination of the First Defendant’s membership of the Claimant’s organisation, the First Defendant removed every statement that associated its business with the Claimant from areas of the RM Website that it was able to alter. None of the Defendants placed the statement that associated the First Defendant with the Claimant on the RM Page and none of the Defendants knew of the existence of that statement before learning of the Claimant’s complaint in respect of it . . .”

As is common in the IPEC, the Case Management Order provided that the statements of case would stand as evidence in chief.

At paragraph 15 of his witness statement dated 1 October 2015, Mr Sampson had stated that shortly before the termination of BM’s NGRS membership he had logged on to the Really Moving site and “removed any reference to [BM] being a member of the Claimant’s [NGRS’s] organisation from [BM’s] pages which were accessible on logging in.” Having denied passing off, he went on at paragraph 18 of his witness statement to add:

“I confirm that as a Company [BM] we did and continue to advertise on Really Moving and at the time of membership had included the phrase “Members of NGRS” however as noted above prior the termination of membership I logged on to the Really Moving website and removed reference to the Company [NGRS]. In particular, I deleted the wording “Members [sic] of NGRS”.”

Paragraphs 19 – 21 of his witness statement are as follows:

“19.

At no time after the termination of membership, 25 June 2010, did I add the wording “Members of NGRS” to Really Moving nor did I agree to this wording being re-entered in association with the Company. I did not and did not have any cause to check the advertisement on Really Moving between 25 June 2010 and November 2013 when the letter before action was received, as the company had not expanded its portfolio and therefore the contents of the advertisement did not need to be updated.

20.

Upon receipt of the letter from Coyle White Devine (‘CWD’) solicitors in April 2013 (pages 10 to 14) I immediately contacted Really Moving to see what had happened as I had previously removed any wording to the Claimant. I was advised by Mrs Rosemary Rogers, Director of Really Moving that there had been an issue with the website which had caused the system to crash and then replicate itself from a previous edition of the website. Unfortunately, this would appear to have included the wording used by the Company when they were members of the Claimant’s organisation and therefore included the wording “Members of NGRS”. I did not agree to this wording being placed on the Company’s advertisement nor was I aware of any such advertisement.

21.

During the course of my discussion with Rosemary Rogers, I asked that the phrases “Members of NGRS” be removed from the website and I understand that this occurred immediately. Indeed, I understand that the Claimant accepts that the reference was removed.”

In conclusion, he stated at paragraph 34 of his witness statement that:

“In relation to Really Moving, this is a third party website and whilst the Company [BM] could access its records, the last time it did the content of the website was changed to remove any reference to the Claimant [NGRS]. Any references to the Claimant [NGRS] resulted from errors with Really Moving and were against any express or implied instructions from the Company [BM] or myself.”

In cross examination, Mr Sampson stated: that he had had no access to the directory page on the Really Moving site; that he did not know that the directory existed or that BM was listed in it and could not change the text on that page; that he was not referring to the directory page when he stated at paragraph 18 of his witness statement that he had removed any reference to BM; and that the reference he was making was to the pages to which he had had access which he described as the “company pages”. He also stated that the directory page had been “put up” by Really Moving and explained the way in which the website worked in the following way:

“. . . you’re given a partnership login, so you come to their homepage, and the navigation for members takes you into your partnership login and then just takes you to your profile, which from all due respect I thought I’d effected [sic] all references to the NGRS to my best knowledge because that was the only place I could go and effect [sic] our profile. To actually find this directory yourself you’d have to be searching as a customer of the site, someone who is potentially trying to move.”

In re-examination, he confirmed that when BM became a member of NGRS he had logged in and changed BM’s profile in the only part of the website which he could change.

Having recorded that Mr Sampson had explained that BM had supplied the website with information about its activities via a login page at paragraph [25] of the Judgment, the Judge dealt with the evidence in relation to access to the directory page of the website and the alleged “web crash” in the following way:

“28.

Mr Sampson explained that this entry was on a “directory page” within Really Moving, as opposed to the First Defendant’s own “company page” within the same website. The difference was that whereas he was able to and did edit the First Defendant’s company page prior to termination to remove any reference to the Claimant, he had no idea that this directory page existed prior to receiving the letter before action from the Claimant (which was on or about 12^th April 2013). Upon receiving that letter before action, he immediately contacted Really Moving to see what had happened and he had been advised by Ms Rosemary Rogers, a Director of Really Moving, that there had been an issue with the Really Moving website. Specifically, he said that Ms Rogers told him that there had been an issue with the website which had caused the system to crash and then replicate itself from a previous edition of the website. Mr Sampson believed that the wording “Members of NGRS” must have come from such a previous edition. In any event he confirmed that the ultimate origin of the wording must have been the First Defendant. For instance he agreed that Really Moving would not have written “our aim”, “our flexible approach”, “our fleet”, etc. Mr Sampson explained that during his discussion with Ms Rogers, he asked that the wording be removed from the website immediately, and it is not disputed that this happened.

29.

Mr Burns’ evidence added nothing to that given by Mr Sampson. Mr Burns was not involved in either editing the First Defendant’s entry or in the conversation between Mr Rogers and Mr Sampson. He did, however, make it clear that at no time after termination of membership on 25 June 2010 did he add the wording “Members of NGRS” to Really Moving, nor did he agree to this wording being re-entered in association with the First Defendant.

30.

No part of Mr Sampson’s evidence about the website crash was challenged, and I accept it. Nor was it put to either Mr Sampson or Mr Burns:

i)

That either of them knew of the Really Moving directory pages in question; or

ii)

That either of them had placed the offending (or indeed any) text on such directory pages; or

iii)

That either of them intended that the directory pages should carry the offending text.”

Before turning to the Judge’s conclusions, it is important to note the Judge’s analysis of the claims. He analysed NGRS’ position as follows:

“34.

Before going further, it is important to identify what the precise scope of the arguments is. In this Court, such arguments have to be set out in the pleadings in accordance with Part 63.20(1). The relevant paragraphs of the Particulars of Claim are paragraphs [1] (definition of Names), [15] (definition of Defendants), [20] (re Schedule B), [23(a) and (b)] (re www.reallymoving.com) and [26] (re common design). It will be seen from these paragraphs that:

i)

The only allegation involving this advertisement is that “the Defendants”, namely D1-D3, had been advertising “its” [sic] services under and by reference to the Names on www.reallymoving.com.

ii)

There is no allegation of any breach of contract, let alone of clauses 6.1.1 or 6.1.2. The only reference to Schedule B is in paragraph [20(d)], but this is simply setting out post-termination terms and there is no suggestion that any of these terms were breached.

iii)

There is no allegation involving any issues of agency, authorising anything, or procuring anything.

iv)

The only allegation of common design is one between the Defendants themselves, and does not involve Really Moving.

35.

It follows that the argument on Schedule B is not open to the Claimant. The Defendants added that if the Claimant had pleaded that failure to send the Schedule B letter was both a breach of contract and also part of its case on passing off, then the Defendants would have sought to adduce evidence and make submissions in reply. For instance the Defendants said that this breach had never been mentioned in any of the letters following termination and it would have been open to the Defendants to argue that this breach had been waived. Without going into the detail, I accept that the failure to plead this point has prejudiced the Defendants and that this is a further reason not to allow the Claimant to run it.

36.

The question then arises as to how it is that the Claimant says the Defendants were liable. The Claimant ran two arguments, as follows:

i)

First, the Claimant said that since the words originally came from the Defendants then the Defendants were automatically liable for Really Moving’s use thereof.

ii)

Secondly, they relied on the passage in Wadlow mentioned above.

It is not clear to me that either of these arguments is pleaded either, but I reject them in any event.”

A number of references in those paragraphs need some explanation. Clauses 6.1.1 and 6.1.2 and the Schedule B letter are not directly relevant to this appeal save to the extent that they are part of the analysis of the claims. The clauses formed part of the post termination terms of the Rules of Members 2008 of NGRS by which the member was required immediately to give written notice to all advertisers with whom contracts were subsisting and under which advertisements bearing the NGRS names and/or logos had already been published. The form of the notice was contained in Schedule B to the relevant Rules, hence the reference. As the argument based on the extract from “Wadlow: The Law of Passing Off” is no longer pursued, I will not refer to it further.

The Judge went on to reject both the strands of argument which he had highlighted at paragraph [36], where relevant, in the following terms:

“37.

First, I fail to see how the Defendants can be responsible for acts done by an independent third party in circumstances where (as pointed out above) the Defendants did not know of such acts nor did they intend them, and no question of agency, authorisation, or procuring arises. Secondly if the Claimant’s argument is correct, and for some reason Really Moving had declined to remove the text in question when the Defendants asked Really Moving to do so, then it would seem to follow that the Defendants still remain liable forever. That cannot be right. I note that HHJ Hacon expressed a similar reaction when the same Claimant ran a similar argument (albeit expressed in terms of agency) in National Guild of Removers and Storers Ltd v Milner (2014] EWHC 670 (IPEC) at [31].”

As the application to adduce fresh evidence is relevant to Mr Sampson’s knowledge of the existence of the directory page, which is central to the appeal, I will consider it first. Mr Gamsa on behalf of NGRS, submits that the Judge erred in finding that Mr Sampson was a reliable witness and instead, he should have found that Mr Sampson had knowledge of the existence of the directory page and access to it, in accordance with what Mr Gamsa describes as admissions contained in the Defence and Mr Sampson’s witness statement. Mr Gamsa says that the Judge was wrong to accept Mr Sampson’s contrary evidence given in cross examination and that the Judge’s findings should be disregarded. Furthermore, he says that the new evidence which he seeks to adduce demonstrates that Mr Sampson’s evidence given in cross examination, was unreliable and untrue.

The application is supported by a witness statement dated 16 March 2017, made by NGRS’ solicitor, Mr David Sheahan. He exhibits the new evidence in the form of copies of three pages of the Really Moving website. He says that they are respectively the directory page on 9 March 2009, and views of the company page, in the sense of the pages to which BM had access, for BeeMoved (Brighton) on 16 March and 10 August 2009. The phrase “Member of NGRS” appears on the directory page in relation to BeeMoved (Brighton), (Crawley) and (Tunbridge Wells) but does not appear on the BeeMoved (Brighton) company page either on 16 March or 10 August 2009. Mr Gamsa submits therefore, that Mr Sampson’s evidence that he removed the wording from the pages to which he had access, being the company page or pages, shortly before the expiry of BM’s membership of the NGRS in June 2010, cannot have been true.

Mr Sheahan explains that having received the draft judgment, he made enquiries of the “Internet Archive” and obtained the pages which he exhibits. He does not explain what the Internet Archive is or whether the dates of the screen shots of the webpages are intended to have a particular significance save that they precede the time in 2010 at which Mr Sampson stated in evidence that he had removed the phrase “Member of NGRS” from certain pages on the Really Moving site. Mr St Quintin on behalf of BM also pointed out that the webpage address for the exhibited pages is different from the website itself. There is no explanation of this discrepancy in the evidence.

Mr Sheahan also adds that he does not recall seeing the phrase “Member of NGRS” on the pages of the Really Moving website to which BM had access (the company pages) at any time since his firm was instructed to investigate in preparation for the claim. He also says that: the evidence could not have been obtained earlier because it was not relevant in the light of the Defence and Mr Sampson’s witness statement and it could not have been foreseen that Mr Sampson would change his evidence in cross examination; that the fresh evidence shows that Mr Sampson was an unreliable witness and that his explanation in cross examination was untrue; and that the evidence goes to the heart of the case.

In a short witness statement in response, dated 24 July 2017, Mr Sampson states that he is sure that he deleted references to the NGRS on the parts of the Really Moving website which he was able to affect, that he never, at any time prior to the letter before action, knew of the existence of the directory page, but that if his memory is faulty, and he did not delete the references to the NGRS, that it must have been because he logged on to do so and found that there were none. Although Mr Gamsa made reference to Mr Sampson’s 2017 witness statement in his submissions, it seems to me that Mr Sampson’s further evidence about his lack of knowledge of the directory page and the steps he took are neither relevant to whether the Judge erred in relation to the evidence before him at the trial, nor to whether the fresh evidence should be admitted and I take no account of it.

It is well known that this court will not receive evidence which was not before the court below unless it orders otherwise: CPR 52.21(2). When determining whether to do so, the court must seek to give effect to the overriding objective of doing justice and, in doing so, attempt to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. The principles in Ladd v Marshall [1954] 1 WLR 1489 remain not only relevant to the exercise of the discretion but are powerfully persuasive: Sharab v Al-Saud [2009] EWCA Civ 353: [2009] 2 LlR 160. They are: whether the evidence could have been obtained with reasonable diligence for use at the trial; whether the new evidence would have had an important influence on the result; and whether the evidence is apparently credible.

In my judgment, it is not appropriate to admit the fresh evidence. In the circumstances of this case, the balance is in favour of the finality of the litigation. It seems to me that the fresh evidence could have been obtained before the trial. The issue of the state of different pages on the Really Moving website immediately before and after the cessation of BM’s membership of the NGRS up to and including March 2013, was always in issue. Paragraph 23a. of the Defence, which, as a result of the case management order stood as evidence in chief, was clear. It stated that none of the Defendants knew of the existence of the statement on the directory page and had not placed it there. Mr Gamsa says that that is ambiguous and might mean that they never knew or that they did not know after the termination of BM’s membership of NGRS. He also says that paragraphs 15, 18, 20 and 34 of Mr Sampson’s witness statement for the trial were not clear. However, it seems to me that the Defence when read with Mr Sampson’s witness statement were clear enough, or at least, raised all of the contentious issues.

Furthermore, there was no fundamental shift in evidence during cross examination which made evidence of the state of the website pages in 2009 relevant in a way in which it had not been before. The paragraphs of the witness statement and the Defence were consistent with Mr Sampson’s evidence in cross examination and in my judgment, did not contain an admission that Mr Sampson had accessed the directory page of the Really Moving website, as Mr Gamsa suggests. Mr Sampson’s position and that of BM was that he had altered the pages of the Really Moving website to which he had access to remove the phrase “Member of the NGRS” and did not know of the existence of the directory page. Although the reference to alterations in paragraph 18 of his witness statement does not include an express statement that they were made on pages to which BM had access, that paragraph expressly refers to paragraph 15 in which that statement is made. When read as a whole, the same is true of paragraphs 20 and 34. The fresh evidence, therefore, did not only become relevant at the trial as a result of wholly inconsistent evidence in cross examination. It was always of some relevance and there is no suggestion that it could not have been obtained in time for the trial had anyone thought of it. The same is true of Mr Sheanan’s evidence that he did not recall seeing “Member of NGRS” on the company pages of the website at any time after having been instructed. That evidence would always have been of some relevance and could have been available at the trial had NGRS chosen to rely upon it.

I have described the copies of the web pages as being of some relevance. On the face of it, they appear to contradict Mr Sampson’s evidence that shortly before BM’s membership of NRGS expired in June 2010, he went onto the Really Moving site and removed the offending phrase from the company pages to which he had access. However, to have any real influence upon the Judge’s estimation of Mr Sampson’s credibility in relation to whether he knew of the existence of the directory pages, it would be necessary also to be able to show that the position was the same in the weeks immediately preceding BM’s expiry of membership of the NGRS in June 2010. As it stands, the copies of the web pages are far from conclusive. I find it difficult to conclude that they would have necessarily affected the Judge’s estimation of the credibility of the witness overall. It is also difficult to come to a conclusion about the reliance to be placed upon the screen shots in the absence of further information about their provenance. All that is said is that they have been obtained from the Internet Archive. Although they may well be from a reliable and accurate source which relates in a logical way to the pages on the website itself, that is not explained.

Lastly, when seeking to fulfil the overriding objective to do justice, it is important to bear in mind the effect on this litigation were the further evidence to be admitted. Although Mr Gamsa suggests otherwise, it seems to me that a retrial in the IPEC would be necessary and would inevitably result in more delay and cost to the parties. Taking all of these factors into consideration, it seems to me that the balance is struck in favour of the finality of litigation and it is not appropriate to allow the fresh evidence to be adduced.

In the light of my conclusion about fresh evidence and the lack of any shift between the written evidence and that given in cross examination, it follows that Ground 2 of the appeal should be dismissed. The Judge was fully entitled to reach the findings he did based upon the evidence which he heard and it is not for this court to interfere. That is all the more so in the light of the fact that as the Judge recorded at paragraph [30] of his judgment, no part of Mr Sampson’s evidence about the website crash was challenged, nor was it put to either Mr Sampson or Mr Burns: that either of them knew of the Really Moving directory pages in question; or had placed the offending text on the directory pages.

Even if Mr Sampson did not know of the statement on the directory page of the Really Moving website, was BM still liable in passing off in relation to it? The three elements which must be proved in order to succeed in an action for passing off were described succinctly by Lord Oliver in Reckitt & Colman Products Ltd v Borden Inc & Ors [1990] RPC 341 at 406. The second element to which Mr Gamsa drew attention is that the Claimant must demonstrate:

“. . . a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. . .”

Mr Gamsa submits, therefore, that it is not necessary to intend that the misrepresentation be made and that it is sufficient that BM provided the language in its profile to the Really Moving website providers for the purposes of advertisement, to render it responsible for the misrepresentation on the directory page, whether or not Mr Sampson placed it there or had knowledge of it. He says that: passing off is a strict liability tort; the Respondents had accepted that they were the source of the offending text; and it was provided to the website for the purposes of advertising BM. Mr Gamsa submits, therefore, that the Judge was wrong to require knowledge or an intention on the part of the Respondents to display the advertisement on a particular page of the website as he appeared to do at paragraph [37] of the Judgment.

He also submits that the Judge’s concern expressed at paragraph [37] that if NRGS argument were correct, and Really Moving declined to remove the text having been requested to do so, BM would remain liable for ever, is answered by the break in the causal connection between the misrepresentation and the damage which would arise if Really Moving had been given notice of the imminent expiry of BM’s membership of the NGRS which BM failed to do. He accepts, however, that there is no claim in breach of contract in this regard.

It seems to me that the real question here is not one of intention or knowledge of the misrepresentation at all. It is whether the misrepresentation on the directory page can be said to have been “made” by BM or, to put it another way, whether BM was responsible for it. Did BM make the representation on the directory page by becoming a member of the Really Moving site and uploading information through a login page for the purposes of advertising, without stating at that stage, that the information was in any way time limited or might become inaccurate, when it was unaware of the existence of the directory page and had no intention that information be placed there? Lord Oliver in the Reckitt & Colman case was drawing attention to something entirely different. He was not addressing the question of whether the defendant “made” the misrepresentation in the first place but whether he knew it was a misrepresentation or intended it to be one.

I agree with the Judge that on the facts of this case, the proposition that BM made the misrepresentation must be based upon agency, authorisation or some kind of procuration, none of which were pleaded: see the judgment at paragraph [34(iii)]. At the very least, it would be necessary to imply BM’s consent to the use to which Really Moving might put the information in order to render it liable. That was not pleaded either. In any event, it seems to me that consent cannot be implied from merely having uploaded information which might become inaccurate to pages on a website which could be and were altered, without knowledge that the information has been placed on pages which were inaccessible and could not be altered. In such circumstances, the misrepresentation is made by an independent third party.

It seems to me that the circumstances of this case are different from the example postulated in argument where a would-be advertiser supplies copy to a newspaper in order to place an advert but by the time the advertisement appears, after some unforeseen delay, circumstances have changed and as a result, the advert contains a misrepresentation. In those circumstances, the advertisement when published, appears in the newspaper or magazine of which the person intending to advertise was aware, and in the form originally supplied. It is easier to see that in such circumstances, putting aside questions of agency or authorisation and the terms of the agreement between the newspaper and the person wishing to advertise, it is at least possible that consent to the publication of the advertisement as placed might be implied. Of course, the exact circumstances including for example, the length of the delay, the position of the advertisement within the newspaper or magazine and any attempts made to retract or alter the advertisement before publication are likely to be relevant to the issue.

In this case, the allegation in the pleading relates to the offending wording on the directory page in or around March 2013, almost three years after the termination of BM’s membership of NGRS. Furthermore, the undisputed evidence was that BM had no knowledge of the existence of the directory page on which the erroneous information appeared. If there had been evidence that BM was aware or upon the basis of which one might have concluded that it ought to have been aware of the directory page, or even a range of webpages which facilitated its advertising and upon which information which it had originally provided might appear, but to which it did not have access, the position might have been different. If the would-be advertiser is unaware of the existence of such additional pages, to which he does not have access, it is difficult to see that he can have consented to the website owner or operator’s use of the information on those pages. The issue does not turn upon knowledge that certain text contains a misrepresentation or an intention to make a misrepresentation. It is concerned with the simple proposition that if one has no knowledge of the existence of a representation published by a third party, whom one has neither authorised, nor is one’s agent, it cannot be said that one has “made” the representation oneself or impliedly consented to it being made by another.

In my judgment, therefore, on the basis of the pleaded case and the evidence before him, the Judge was entitled to find as he did at paragraph [37] of the judgment. In the absence of implied consent, the misrepresentation was not “made” by BM and it was not responsible for it. It was an act of an independent third party, in this case the owner or operator of the Really Moving website and not that of BM. It seems to me quite clear that if the first sentence of paragraph [37] of the judgment is read as a whole, the Judge’s reference to knowledge and intention is made in the context of his findings at paragraphs [28] and [30] and relates to whether BM made the representation or was responsible for the text on the directory page. It is not an attack upon Lord Oliver’s formulation of the requirements of the tort of passing off.

I also agree with the Judge’s conclusion in the second half of paragraph [37] of his judgment. If BM were automatically liable merely because the offending text originated from it but having become aware of the directory page before its membership of the NGRS expired it requested the website operators to remove references to the NGRS and they refused to do so, it seems to me that BM would remain primarily liable forever. That cannot be right. The request would not break the chain of causation in relation to the passing off unless it was made after the membership had expired and the reference to the NGRS had become untrue.

For all the reasons to which I have referred, I would dismiss the appeal.

I agree.