The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors [2018] EWCA Civ 1302

For first instance judgment, see [2016] EWHC 3192 (IPEC)

The case

The Claimant, the National Guild of Removers and Storers Ltd (“NGRS”), is a trade association which represents members of the removals and storage industry. The First Defendant, Bee Moved Ltd (“Bee Moved”), is a removals and storage company, which had been a member of the Claimant from 2006 to 25 June 2010. The Second and Third Defendants are directors and 50% shareholders of the First Defendant.

NGRS brought proceedings in 2014 alleging passing off. They complained about two advertisements in which the Defendants had, they claimed, described themselves as members of the NGRS. The first advertisement was on Bee Moved’s own website (“the Bee Moved advert”). Mr Recorder Douglas Campbell QC found at first instance for the NGRS on this part of the case (see [13-24] of that judgment), and it was not in issue on appeal, so no more is said about it here.

The second advert (“the Really Moving advert”) was on www.reallymoving.com, which, it was common ground, is a “popular and successful website relating to house moving”. NGRS exhibited a printout of that advert as it existed on 21 March 2013, and it concluded with the sentence “Member of NGRS”.

It was common ground that by that date such a statement was no longer true. Mr Sampson, the Third Defendant, explained that when they had left the NGRS in 2010, he had edited their page on Really Moving to remove the reference to their membership. The passage complained of was from a directory page, and although he accepted Really Moving must have taken the wording from something the Defendants had written, he had not known of the existence of the page till alerted to it by NGRS’s pre-action letter. He had immediately contacted Really Moving to ask them to edit it. They had explained to 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” (first instance judgment at [28]); though the judgment gives no further detail, it appears Really Moving had at one pointed restored their data from an old backup which still contained that, now incorrect, wording.

The Claimant argued that the Defendants had written the passage used by Really Moving, and were automatically liable for the latter’s use of it. There were other arguments put forward, but once again, as those were rejected and the NGRS did not seek to revive them on appeal, no more is said here (for details, see first instance judgment at [8, 31, 34-35, 38]).

The Judge, however, accepted that neither Bee Moved, nor Mr Burns or Mr Sampson individually, had known of the Really Moving advert, placed any text on the directory page, or intended the offending text to be carried there. He considered the Defendants could not be responsible in those circumstances for that advert. Indeed, the Claimant’s first argument would make the Defendants liable even if Really Moving, on being contacted by the Defendants, had refused to take the advert down, which, he said, “cannot be right”.

In short, the Judge dismissed that part of the claim which related to the Really Moving advert. It was against that part of his decision which the Claimant appealed.

The appeal

NGRS’s appeal was heard by Lord Justice Kitchin and Lady Justice Asplin, with the latter giving the substantive judgment. Ground 1 of the appeal (which was taken second, at [24-31] of the appeal judgment) attacked the Judge’s conclusion that Bee Moved could not be liable for the Really Moving advert if they did not know about it. Asplin LJ rejected that, with the key point being that “the misrepresentation was not “made” by B[ee] M[oved] and it was not responsible for it.”

Ground 2 was a challenge to the Judge’s finding of fact that the Defendants had not known of the directory page until these proceedings, and was accompanied by an application for permission to adduce further evidence. The Claimant had discovered three historical versions of pages on Really Moving, summarised by Asplin LJ at para.14 as “the directory page on 9 March 2009, and views of the… pages to which B[ee] M[oved] had access… on 16 March and 10 August 2009.” The phrase complained of, “Member of NGRS”, did not appear on the latter two. It was said that this disproved Mr Sampson’s evidence that he had removed that wording “shortly before” the expiry of their membership in June 2010. This, in turn, undermined the credibility of the rest of his evidence.

Asplin LJ recalled the principles at play when an appeal court decides whether or not to admit new evidence. The factors identified in Ladd v Marshall [1954] 1 WLR 1489 “remain not only relevant to the exercise of the discretion but are powerfully persuasive” (see [18]). She summarised them as “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.”

On this occasion, all three of those factors indicated the evidence should not be admitted.

1. The evidence could have been obtained for trial. Though NGRS argued the evidence was not relevant until the Defendants’ case developed at trial, Asplin LJ disagreed, considering that the state of the Really Moving website at different points in time was squarely in issue throughout. There was no fundamental shift in evidence during cross examination which made it any more relevant than previously. [19-20]

2.  Although the fresh evidence prima facie contradicted Mr Sampson’s evidence that he removed the offending phrase shortly before June 2010, as the versions from 2009 already omitted it, that was not conclusive. Unless the court knew whether it appeared in, say, May 2010, this evidence would not necessarily have damaged Mr Sampson’s credibility. [21]

3. As Asplin LJ continued, “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.” [21 continued]

Finally, Asplin LJ noted that if the evidence were admitted a further trial would clearly be necessary, and this would be disproportionate. For all the above reasons, she dismissed the application to adduce this evidence. Ground 2 of the appeal thereby fell away.

Comment

Fresh evidence is not lightly admitted on appeal. In applying for that to happen on this occasion, NGRS failed on all three factors, making the result predictable. In particular, given that the evidence went only to Mr Sampson’s general credibility, was far from decisive, and could have been presented at trial had it been thought of, it is understandable that the Court of Appeal declined to take it into account now.

However, it is worth noting that Asplin LJ concluded as she did on the third factor – whether the evidence was “apparently credible” – because she did not know what the Internet Archive was. But the Internet Archive is familiar to many of those who, like the author, spend too much time on the internet (presumably, justices of the Court of Appeal have more important things to do). It is a large, well-funded, non-profit organisation founded in San Fransisco in 1996, whose mission is to create a publicly-accessible archive of as much of the internet as possible. It is perhaps puzzling that this does not seem to have been explained, either in the relevant witness statement or in court, as it is submitted they undoubtedly are “apparently credible”.

It is worth remembering that NGRS succeeded in relation to the first advert complained of, and so hardly “failed”. However, they certainly failed in relation to the Really Moving advert. Though it is unlikely this swung the outcome, it is regrettable that the Court of Appeal was left without a full understanding of the nature of the evidence they were being asked to admit, and this may serve as a lesson for others considering how to present documents to a judge.