LORD JUSTICE MILLET: This is an appeal by the Plaintiffs from a judgment of Harman J. given on 13th. May 1994 when he dismissed the Action at the conclusion of the trial. The names of the parties are sufficient in themselves to indicate not only the nature of the dispute but also that of the competing arguments.
The Plaintiffs are the proprietors of the world-famous department store Harrods in Knightsbridge. The Action is brought to restrain the Defendants from carrying on a private preparatory school in Barnes under the name "The Harrodian School." The Plaintiffs allege that the Defendants' use of that name constitutes the actionable wrong of passing-off. The Judge found that there was no real likelihood of confusion. The facts are largely undisputed.
The Plaintiffs' reputation.
The Plaintiffs enjoy a long-established reputation and goodwill in the business of a department store which they carry on under the name "Harrods." The business was founded in 1849 on its present site. More than 70 years ago Sir Ernest Pollock MR was able to say that Harrods had "a business of established reputation" and that the business was "an important one, a well established one, a business of high reputation, and of wide range": see Harrods Ltd. v R. Harrod Ltd. (1923) 41 RPC 74 at p. 80. Today "Harrods" could properly be described as a household name, not only in this country but in many parts of the world.
Although Harrods' business is primarily that of a department store selling an extremely wide range of goods to the public and providing a world-wide mail-order service, it also offers a great variety of services. In 1965 an advertising brochure published by Harrods posed the question "What makes Harrods different?" and answered:
"How many other stores can sell you an elephant? Buy your stocks and shares? Arrange a safari in Africa? Engage a Black Watch piper for Hogmanay? Insure your life? Paint your portrait? Find you a house? Clean your silver? Give messages to your friends? Find a school for your child? Decorate your home? Send you on honeymoon?"
Over the years Harrods has offered a vast range of services.These include a bank (established in 1890) which carries on business under the name "The Harrods Bank", a travel agency, shoe repairs, jewellery repairs, the supply of school uniforms for more than 90 fee-paying schools, a golf school, livery stables, piano tuning, a wedding service, funeral undertakers, auctioneers estate agents and surveyors, a lending library,a post office, a theatre agency, a travel bureau, an insurance agency, house removals, dry cleaning, and opticians. In the days of the empire it fitted out children of parents living overseas for school in England, and could even be used to find a suitable school for a child; but these services have long been discontinued. It has from time to time introduced new products and services and discontinued others. It no longer supplies elephants.
The Plaintiffs have always been very proud of the name "Harrods." They claim that it has come to represent an unsurpassed level of quality in the range of goods and services which they provide. But while their range is of astonishing breadth, it would be a mistake to be dazzled into thinking that the range of the Plaintiffs' commercial activities is virtually unlimited, or that they have acquired a reputation for excellence in every field of activity. They are retail suppliers of goods and services of every kind; but that is all. They sell theatre tickets; they do not run a theatre: they supply medical equipment; they do not run a hospital: they act as insurance agents; they do not underwrite policies of insurance: they supply school uniforms; they do not run a school.
The Plaintiffs have recently obtained planning permission for the conversion of their depository in nearby Trevor Square into a hotel which they plan to name "The Harrods House Hotel." This will be a new venture for the Plaintiffs (though not for their shareholders, who also own the Ritz Hotel in Paris) and is likely to be seen as such by the general public. It is not merely the addition of a new line to their existing range or a natural extension of their existing activities. The Plaintiffs, however, have never run a school and have no plans to do so whether under the name "Harrods" or otherwise. Were they to decide to do so, particularly on a site some distance from Knightsbridge, this too would be seen by the public as a major new departure for Harrods and one in which they have no established reputation.
"Harrodian."
The Plaintiffs claim that the term "Harrodian" is the adjectival form of "Harrods", as Etonian is of Eton and (more pertinently) Harrovian is of Harrow. There is evidence that the term is, or has been, used by staff of Harrods and other insiders, but it does not appear to be in general use by the public. From 1910 or thereabouts clothes were sold by Harrods as "Harrodian" clothes, and for a time after the First World War chocolates butter and dog biscuits were sold under the appellation "Harrodian." But the name was never applied to more than a tiny number of the huge range of goods and services supplied to the public, and even this usage died out in the 1940's. The term "Harrodian" has not been used by the Plaintiffs in their advertising or in their dealings with their customers for the last forty or fifty years.
During that period the word "Harrodian" appears to have been applied primarily to the Plaintiffs' employees. Members of Harrods' staff have long called themselves "Harrodians", though there is no evidence that this is how they are known to the public. Staff societies commonly incorporate the name "Harrodian" in their title. There is a Harrodian Horticultural Society, a Harrodian Amateur Dramatic Society, a Harrodian Operatic Society, a Harrodian Orchestra and many others. There is a war memorial within the store for those members of staff who lost their lives during the First World War which is inscribed "Harrodians who died for their country." There is evidence that employees use expressions such as "Harrodian standards" and "the Harrodian system", but this is consistent with the use of the word "Harrodian" to describe a member of the staff. An article in the Sunday Times entitled "The Harrodian Way of Life" was about the staff at Harrods, not the life-style of its customers.
Consistently with this usage there have long been a staff magazine entitled "The Harrodian Gazette" and a staff club called "The Harrodian Club." The Harrodian Gazette was first published in 1913. It covered all areas of staff life, and aimed to link management and staff on a social as well as a business level. From 1970 to 1986 it was incorporated into the House of Fraser Magazine called "In Company." The in-house magazines were separated again in 1986 when the Harrods' own staff magazine was resurrected under the name "Harrods News". In the summer of 1993 the name reverted to "The Harrodian Gazette".
The Harrodian Club was founded in 1894 as a sports club for members of Harrods' staff. The original site of the club was elsewhere in Barnes, but the club has been on its present site since 1904. The freehold of the site was acquired in 1928. Since then there has been less emphasis on purely sporting and more on social activities. Dances, bingo evenings and fitness classes were held, and there used to be an annual garden party. The club became a focal point of social activities for employees of Harrods.
The club was originally called "The Harrods Sports Club", but since 1929 it has been known as "The Harrodian Club." The evidence showed that the club had acquired an established reputation in Barnes as a club for employees of Harrods. The number of staff members joining the club began to decline in the late 1960's. From 1968 members of the families of Harrods' staff were admitted as associate members. Later still associate membership was opened to people who had no connection with Harrods. Those who joined consisted mainly of local residents of Barnes. Eventually the membership dwindled to such an extent that it was decided to close the club and sell the site. The club closed in March 1990. The site was sold to the Defendants in January 1993. The Plaintiffs do not contemplate re-opening a staff club for their employees.
The Plaintiffs' current plans for the new Harrods House Hotel include plans to name the central bar "The Harrodian Bar" and to open a fitness centre called "The Harrodian Health Club". They also plan to establish a cookery school on the lines of L'Ecole de Gastronomie Francaise Ritz-Escoffier at the Ritz Hotel in Paris, which claims to offer a complete programme in French gastronomy. The Plaintiffs' plans are still at a very early stage, but currently the favoured name for the school is "The Harrodian School of Cookery." The use of the term "Harrodian" in this latter context is surprising, given that it is hoped to build on the goodwill of the Harrods Gourmet Club which apparently has over 2,000 members. Be that as it may, the intended use of the word "Harrodian" to describe a service or product supplied by the Plaintiffs to their customers will, as the Judge found, be "a revival of a use which the Plaintiffs used to make but which they have not for may years actually made."
The Plaintiffs have criticised the Judge's observation that the use of the name "The Harrodian Club" was not in the course of trade. There was evidence that, at least in its declining years, the club allowed its premises to be used (mainly by members and their families) for weddings and other functions and hired out its grounds to schools and others for sports fixtures. The Plaintiffs rightly point out that the operation of a club for the benefit of employees is a trading activity, and that it would not matter if it were not; non-trading organisations such as clubs and charities are as much entitled to protection from passing off as any one else. The Plaintiffs also submit that the Judge was wrong to disregard the separate but material reputation which the club acquired in Barnes as the staff club of Harrods.
In my view these criticisms are misplaced. The Judge was not distinguishing between trading and non-trading activities but between the use of the name "Harrods" in relation to goods or services supplied to customers, that is to say in the course of a trading activity calculated to generate goodwill, and the use of the name "Harrodian" in connection with a club provided as a facility for employees. The use of the club's name when hiring out its premises to members of the public was a minor and incidental extension of the latter usage. But in any case the Plaintiffs have neither pleaded nor established a reputation for running a club, and if the club acquired any goodwill of its own in the name Harrodian it was abandoned when the business of the club was discontinued. In my judgment the evidence clearly supported the Judge's finding that the use by the Plaintiffs of the name "Harrodian" in connection with facilities to be provided to the public in The Harrods House Hotel and by the proposed school of cookery will be a revival of a usage which is long obsolete.
The Defendants
The principal director and shareholder of the Defendants is Sir Alford Houston-Boswall. He and his Wife are the co-principals of The Harrodian School, a preparatory school in Barnes, and he is also a proprietor and the chairman of The Merlin School, a pre-preparatory school in Putney which he helped to found in 1986.
In or about 1988 Sir Alford began to search for suitable premises in London for a preparatory school. He was aware of the existence of The Harrodian Club because The Merlin School was renting the club's grounds for its physical education activities. He learned that the property was available for sale. The combination of the club's location and extensive playing fields made it an attractive site for a new school.
In February 1990 Sir Alford's then solicitors wrote on behalf of The Merlin School Limited to Savills, the Plaintiffs' agents, with an offer to purchase the site. In the course of the negotiations which followed Sir Alford's solicitors stated that it was his intention to use the property to expand the school, which in the context can only have been taken to mean The Merlin School.
The negotiations broke down in May 1990, but were resumed in October 1990 when Sir Alford's agents Knight Frank & Rutley wrote again with a renewed offer to purchase the site. Once again negotiations soon broke down. In February 1992, at the depth of the property recession, Sir Alford made a further offer to buy at a reduced price; this was rejected out of hand by Mr. Hogben, the Plaintiffs' property Director, who had become distrustful of Sir Alford and (wrongly, as the Judge found) believed him guilty of sharp practice in the conduct of the negotiations.
In September 1992 new agents acting for Sir Alford, Jones Lang Wootton, informed the Plaintiffs of Sir Alford's continuing interest in purchasing the site. This led to renewed negotiations in which neither Mr. Hogben nor Sir Alford played any part. Heads of Agreement were signed in early January 1993. Formal contracts of sale and purchase were exchanged on 21st. January 1993 and completion followed (at the Plaintiffs' insistence) seven days later.
The Plaintiffs allege that the Defendants were guilty of a deliberate intent to deceive the Plaintiffs into believing that they intended to call their new school The Merlin School. The Judge rejected this allegation. The Plaintiffs or their agents were expressly told that it was the Defendants' intention to use the premises for a preparatory school, though not of the name under which it was intended to carry it on. The Plaintiffs were concerned to establish that they were not selling to speculators for redevelopment. In response to their concern Sir Alford's solicitors stated February 1990 that it was his intention to use the premises to expand The Merlin School. This statement was never corrected, but the Judge found that its effect was spent when the negotiations broke down. Mr. Hogben remained under the impression that the site was being acquired for The Merlin School, but he played no part in the later negotiations in late 1992 and early 1993 which led to the sale. The Plaintiffs were never told of Sir Alford's intention to use the name "Harrodian" in connection with the new school, but Mr. McCombie, who took over the negotiations from Mr. Hogben, admitted that he never gave any consideration to the name under which the school would be carried on. The Judge found that the earlier representation was no longer operative in January 1993, and that no further representation of the kind was made.
These findings of the Judge have been criticised before us, but in my judgment they have no bearing on the issues in the Action. The Plaintiffs are not suing for damages for misrepresentation or claiming to have the sale set aside, and it does not matter whether, objectively construed, the letter written by Sir Alford's solicitors in February 1990 constituted a continuing and uncorrected misrepresentation on the part of the Defendants which induced the Plaintiffs to sell the site to them. It would be another matter if Sir Alford had deliberately concealed his intentions from the Plaintiffs because he knew that they would object, since this would tend to show that he recognised that the Plaintiffs had a legitimate interest in preventing his use of the name Harrodian. The Judge rejected this charge, expressly finding that Sir Alford did not at any time believe that it was material to the Plaintiffs that he intended to use the name "The Harrodian School" or that the Plaintiffs would object if he did. This finding was supported by evidence and was one which the Judge was entitled to make.
The Plaintiffs also allege that Sir Alford decided to use the name "The Harrodian School" with the deliberate intention of deceiving the public and trading on Harrods' reputation. This would be highly relevant, but the Judge rejected this charge also.
Subjective intention to deceive
Deception is the gist of the tort of passing off, but it is not necessary for a plaintiff to establish that the defendant consciously intended to deceive the public if that is the probable result of his conduct. Nevertheless, the question why the defendant chose to adopt a particular name or get up is always highly relevant. It is "a question which falls to be asked and answered": see Sodastream Ltd. v Thorn Cascade Co. Ltd. [1982] RPC 459 at p.466 per Kerr LJ. If it is shown that the defendant deliberately sought to take the benefit of the plaintiff's goodwill for himself, the court will not "be astute to say that he cannot succeed in doing that which he is straining every nerve to do": see Slazenger & Sons v Feltham & Co. (1889) 6 RPC 531 at P. 538 per Lindley LJ.
The Plaintiffs rely on the evidence of Sir Alford that he took the name Harrodian "after careful thought" and "because [he] believed it would be of advantage to [him], being aware that it was a name that had been used to indicate a connection with Harrods." The Plaintiffs' skeleton argument puts these latter words into Sir Alford's mouth. But he never said them. They were Counsel's words; and although Sir Alford agreed with them, his evidence taken as a whole clearly shows that the connection with Harrods was not the advantage which he had in mind.
In his witness statement Sir Alford said that it was the name of the site which he intended to exploit. He confirmed this in cross-examination. He explained that he did not decide on the name "The Harrodian School" until some time in mid-January, after the Heads of Agreement had been signed, when he knew that he would be able to acquire the site. He was cross-examined as follows:
Q. What you are saying is that in January you formed the intention to exploit the connection between the name "Harrodian" and the site? A. In January, yes. Once I was assured I could have the company...I decided on the name because of the site. The site exploited the name, if you like.
Q. The site exploited the name. Just fill that out a little, would you? A. Because the site had historically been known as "The Harrodian Club"; because, in my opinion, it was a landmark site; because Lonsdale Road is two miles long; there is no number on the property; there is no other name on the property....I associated the building and the land with the name "The Harrodian Club";....because we had three years of negotiations and "The Harrodian Club" had been used every time we had referred to the property...
And a little later:
A....I think that also we felt that many people know of that property, that site - that enormous site - for London as The Harrodian Club site.
Sir Alford said that he had considered other names for the new school, including "The Lonsdale School" after the name of the road which abutted the site, but rejected it because there were three other schools in the road and because he was given to understand that the company name was not available. His cross-examination continued:
Q. What motivated your intention to choose the name "Harrodian"?
A. We chose the name "Harrodian" because of the site, the site's history, the site's name and because other alternatives seemed inappropriate or unavailable... A....All that we have done is to tell the public that we have called the school "The Harrodian School" because of the historic landmark status of the site.
Q. What do you mean by the historic landmark status of the site?
A. I mean the fact that it has been called The Harrodian Club for nearly one hundred years.
Sir Alford admitted that the name of the club indicated that it was a club owned by Harrods or established for the benefit of Harrods' staff. But he insisted that his decision to call the school The Harrodian School was based on the long association of the name with the site and that the only advantage which he saw in the name was to indicate the location of the school on a site of 20 acres of fine playing fields close to the river. He said:
A. I have told you that the geographic relevance and the historic name associated with that site is to my mind an advantage. That to my mind is the only advantage, the only. Q. You describe it as a historic name. It is historic because for 70 or 100 years it has been associated with that building. When I say "historic" I really mean because it has been associated for a long period with the building.
This was the context in which occur the passages in the cross-examination on which the Plaintiffs now rely:
Q. You took the name "Harrodian" after careful thought?
A. Yes.
Q. And you took it because it was an advantage to your school to have that name?
A. Yes.
After a passage in which Sir Alford denied that there was likely to be any confusion between the management of The Harrodian School and the management of Harrods, he was asked:
Q. You took this name because you believed it would be of advantage to you, being aware that it was a name which had been used to indicate a connection with Harrods?
A. Yes.
If Sir Alford's evidence is read as a whole, as it must be, it is clear that the Judge was entitled to reject the Plaintiffs' contention that Sir Alford was deliberately setting out to exploit Harrods' reputation. The only reputation which he was seeking to exploit was that which was attached to the location of a site which had been known for nearly one hundred years as "The Harrodian Club." The message which he wanted to give to the public was that his school occupied the magnificent site which was known as and had been formerly occupied by the Harrodian Club. The fact that it had been a club for members of Harrods' staff was to him of historical and incidental interest only.
Sir Alford expressly rejected the possibility that anyone could confuse the school with Harrods:
Q....I do suggest that somebody coming across "The Harrodian School" would imagine that it had some connection with Harrods. Do you reject that possibility?
A. I do. I have rejected it before. Harrods is not a school.
Sir Alford was then pressed to accept that Harrods might at some future time decide to promote or sponsor a school. Sir Alford thought that he was being asked whether Harrods might decide to start a school. His answer was significant:
A. Would you like me to give you specific reasons why I might think that Harrods should not perhaps start a school?
Q. Yes. I am putting it to you for that purpose. Offer a reason why, by the light of nature, Harrods should not see fit at some time to sponsor or promote a school?
A. I think my advice would be to Harrods, if they were thinking of starting a school, that schools do not grow very rapidly. One has to establish a track record. One has to put more into a school than store mentality. It is not an arena anything like similar to the retail high street industry. I cannot see why they should do that any more than the Ford motor company should do that.
In his witness statement Sir Alford had said that he had no wish to trade off any reputation belonging to Harrods, and that it would be of great concern to him if he were to discover that people were inferring some connection between the school and the store. His evidence, if accepted, left no room for any inference that, as a secondary objective, he was seeking to attract to his school the "aura of excellence" (as Counsel for the Plaintiffs put it) which attaches to the very name of Harrods. He did not believe that Harrods' reputation for excellence in retailing would be of benefit to a school but the reverse; the philosophies were very different. Sir Alford's evidence was plausible and his reasoning convincing. The Judge was plainly entitled to accept it.
The application to adduce further evidence
The Plaintiffs applied for leave to adduce further evidence of Sir Alford's subjective intentions. This consisted of evidence designed to show that in April 1995, that is to say well after the conclusion of the trial, Sir Alford caused a writ of fi.fa. to be issued against the Plaintiffs in order to recover the costs which he had been awarded. The writ was later set aside as an abuse of the process of the court. It was submitted that the evidence was relevant as showing that Sir Alford would stop at nothing in his desire to cause embarrassment and damage to the Plaintiffs. We refused leave and said that we would give our reasons later.
We refused leave because we were satisfied that the evidence sought to be adduced was not relevant to any issue in the Action. It was evidence of Sir Alford's state of mind in April l995, that is to say after the conclusion of a trial which must have caused him anxiety and expense, in which his honesty and truthfulness had been impugned and in which he had been completely vindicated; it provided no evidence of his state of mind at the relevant time in early 1993 when he first began to use the disputed name. Moreover, while his conduct might demonstrate a reckless disregard for the Plaintiffs' reputation, it does not begin to support the Plaintiffs' case that Sir Alford had consciously set out to take the benefit of the Plaintiffs' reputation in the name Harrods. If anything, his willingness to damage the reputation of Harrods while still carrying on his school as "The Harrodian School" would seem to confirm the truth of his testimony that he did not believe that the public would infer a connection between the store and the school. In my judgment the new evidence was not relevant and did nothing to impugn the findings of the Judge.
The absence of evidence of actual confusion
The purchase was completed at the end of January 1993. The Defendants published a brochure advertising the school as "The Harrodian School" in February 1993. The Writ was issued on 5th. April 1993. The school was opened in September 1993 with some 70 pupils. The trial began on 5th. May l994, by which time the number of pupils had risen to about 100.
The Plaintiffs left behind a fire extinguisher and a quantity of cutlery marked with Harrods' logo and a sign fixed to a post embedded in concrete and facing the road bearing the words "The Harrodian Club" in Harrods' distinctive script and livery. Sir Alford defaced or covered over the word "Club" but left the sign in position until shortly before the trial, when he removed it. Had he persisted in a refusal to remove it when asked to do so, an injunction might well have been granted to compel its removal and to prohibit the use by the Defendants of the word "Harrodian" in Harrods' script or livery. But it would not have been inconsistent if any wider injunction had been refused. Since the Defendants removed the sign voluntarily and had no intention to make any other use of Harrods' script or livery, the Judge rightly disregarded this episode.
Despite the passage of fifteen months between the publication of the Defendants' brochure advertising the opening of the school and the beginning of the trial, there was no evidence of actual confusion.
Sir Alford testified that at the beginning he had received occasional queries whether the school had purchased or leased the school from Harrods, but that no one had ever indicated that he believed that the school was owned or run by Harrods. Prospective parents had asked whether the school had anything to do with Harrow School but, he said, "I always put them right on this point." Mrs. Powell, the Administrator of the school, testified that she was responsible for answering and dealing with telephone calls and correspondence, and that she had answered some 600 telephone enquiries from prospective parents. She said that in the early days of her employment she had received "one or two" queries whether the school had anything to do with Harrods, to which she replied that the site had merely been purchased from Harrods. As a result of her experience she was able to say that none of the very large number of persons who had made enquiry of the school or who had contacted it was under the impression that it was connected with Harrods. Miss Moore, who was the receptionist and also answered the telephone, said that she had never heard anyone say anything to make her think that "they were connecting us with Harrods."
The Plaintiffs called two witnesses to testify to confusion. They were both local residents who were familiar with the site and knew that it belonged to The Harrodian Club but were unaware of the sale to the Defendants. They were stopped in the road by the sign still bearing the legend "The Harrodian" in Harrods' script and livery and were asked what it signified to them. Not surprisingly they replied in effect that it signified that the site was owned by Harrods. As evidence of confusion this was worthless.
If any confusion really did exist then, given the time which elapsed between the publication of the brochure, the opening of the school, and the trial, I would have expected the Plaintiffs to be in a position to call evidence that some of their huge number of customers had asked for a brochure for the school or had enquired whether the store supplied uniforms for the school, or had otherwise manifested their impression that the school was connected with the store. No such evidence was called.
The elements of passing off
The authoritative modern formulation of the tort of passing off is to be found in the speech of Lord Diplock in Erven Warninck BV v Townend & Sons (Hull) [1979] AC 731 ("the Advocaat case"). At p. 742 Lord Diplock stated that five elements must be present: (1) a misrepresentation (2) made by a trader in the course of trade (3) to prospective customers of his or ultimate consumers of goods or services supplied by him (4) which is calculated to injure the business or goodwill of another trader in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or, in a quia timet action, will probably do so. In Reckitt & Colman Products Ltd. v Borden Inc. [1990] 1 WLR 491 (the "Jif" lemon juice case) at p.499 Lord Oliver reduced the elements of the tort to three: (1) reputation (2) deception and (3) damage. The passage in which he did so repays close attention:
"First, [the plaintiff] must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by with the identifying "get-up" (whether it consists simply of a brand name or a trade description or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he 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....Thirdly, he must demonstrate that he suffers or, in a quia timet action, is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff."
I find that analysis more helpful in that (1) it makes it clear that it is incumbent on the plaintiff to establish, not a reputation in his brand name or get-up, but a goodwill or reputation attached to the goods or services which he supplies by association with the identifying name or get up; and (2) it takes the first and fourth elements of Lord Diplock's formulation together. Given the nature of the inquiry in a passing off action, I do not consider it desirable, or in most cases possible, to consider whether a misrepresentation has been made separately from the effect on the minds of the public of the use by the defendant of the name or get up which he has adopted.
It is well settled that (unless registered as a trade mark) no one has a monopoly in his brand name or get up, however familiar these may be. Passing off is a wrongful invasion of a right of property vested in the plaintiff; but the property which is protected by an action for passing off is not the plaintiff's proprietary right in the name or get up which the defendant has misappropriated but the goodwill and reputation of his business which is likely to be harmed by the defendant's misrepresentation: see Reddaway v Banham [1896] AC 199 per Lord Herschell; Spalding v Gamage (1915) 32 RPC 273 at p. 284 per Lord Parker; H.P.Bulmer Ltd. and Showerings Ltd. v J.Bollinger SA and Champagne Lanson Pere et Fils (the Bollinger case) [1978] RPC 79 at p.93-4 per Buckley LJ.
It is this fundamental principle of the law of passing off which leads me to reject the main way in which the Plaintiffs have put their case before us. "Harrodian", they submit, is synonymous with "Harrods"; the name "Harrods" is universally recognised as denoting the Plaintiffs' business - it has, as Counsel put it (borrowing and adapting an expression used by Falconer J in Lego System Aktieselskab v Lego M. Lemelstrich Ltd. ("the Lego case") (1983) FSR 155 at p. 187) an unlimited "field of recognition"; the Defendants were, therefore, unarguably guilty of misrepresenting their business as that of the Plaintiffs; given the huge number of persons who are customers or potential customers of the Plaintiffs it is a simple matter to infer that an appreciable number of them will be deceived into thinking that "The Harrodian School" is owned by or otherwise connected in some way with Harrods; and damage may likewise easily be inferred. But in referring to the possibility of a plaintiff having only "a limited field of recognition", Falconer J was referring to the limited field of commercial activity with which the plaintiff's reputation was associated by the public; he was not referring to the extent to which the plaintiff's reputation in that limited field was familiar to the public. The name "Harrods" may be universally recognised, but the business with which it is associated in the minds of the public is not all-embracing. To be known to everyone is not to be known for everything.
The relevant connection
In its classic form the misrepresentation which gave rise to an action for passing off was an implied representation by the defendant that his goods were the goods of the plaintiff, but by the beginning of the present century the tort had been extended beyond this. As Lord Diplock explained in the Advocaat case at pp.741-2, it came to include the case
"where although the plaintiff and the defendant were not competing traders in the same line of business, a false suggestion by the defendant that their businesses were connected with one another would damage the reputation and thus the goodwill of the plaintiff's business."
In a written summary of the Plaintiffs' points in reply which was prepared by their Junior Counsel and presented to us at the conclusion of the argument, and to the excellence of which I would like to pay tribute, it was submitted
"In this case the belief engendered [in the minds of the public] is probably that Harrods sponsor or back the school. Obviously not every connection will found an action for passing off...but where the representation is to the effect that the plaintiff is behind the defendant in some way, that is a classic case."
This is too widely stated. In my judgment the relevant connection must be one by which the plaintiffs would be taken by the public to have made themselves responsible for the quality of the defendant's goods or services. In British Legion v British Legion Club (Street) Ltd. (1931) 48 RPC 555 Farwell J considered that the public would take the defendant club to be "connected in some way" with the plaintiff. But he explained this by saying that some persons would think that it was "either a branch of the plaintiff or a club in some way amalgamated with or under the supervision of the plaintiff and for which the plaintiff had in some way made itself responsible" (my emphasis).
This, in my opinion, is the gist of the matter. In the Bollinger case at p.99 Buckley LJ described the relevant representation as one calculated to mislead members of the public into a mistaken belief that
"the goods or services of the defendant or the defendant's business are or is either (a) the goods or services or business of the plaintiff or (b) connected with the plaintiff's business in some way which is likely to damage the plaintiff's goodwill in that business" (my emphasis).
In the same case Goff LJ said at p. 117
"Not every kind of connection claimed will amount to a passing off...On the other hand in my view there can be a passing off without representing that they are actually the well-known goods which the plaintiff produces or a new line which he is supposed to have started. It is sufficient in my view if what is done represents the defendant's goods to be connected with the plaintiff in such a way as would lead people to accept them on the faith of the plaintiff's reputation. Thus for example it would be sufficient if they were taken to be made under licence, or under some trading arrangement which would give the plaintiff some control over them, and I think Harman J had such ideas in his mind as appears from the passage at p. 93 of the Treasure Cot case when he spoke of "something for which the plaintiffs were responsible" (my emphasis.)
It is not in my opinion sufficient to demonstrate that there must be a connection of some kind between the defendant and the plaintiff, if it is not a connection which would lead the public to suppose that the plaintiff has made himself responsible for the quality of the defendant's goods or services. A belief that the plaintiff has sponsored or given financial support to the defendant will not ordinarily give the public that impression. Many sporting and artistic events are sponsored by commercial organisations which require their name to be associated with the event, but members of the public are well aware that the sponsors have no control over and are not responsible for the organisation of the event. Local teams are often sponsored in similar fashion by local firms, but their supporters are well aware that the sponsors have no control over and are not responsible for the selection or performance of the players.
Schools and colleges are not normally sponsored or promoted in the same way, but they are often financially supported by commercial and professional organisations. Scholarships and professorial chairs are increasingly established by professional firms which stipulate that their name is publicly associated with the endowment. But it is generally recognised that those who provide financial support to such institutions do not expect to have any control over or to be held responsible for the institution or the quality of the teaching. Many ancient schools still bear the names of the guilds which founded them, not as part of their trading activities, but as charitable institutions for the benefit of children of their members. The connection is now largely if not entirely historical; but it was probably never one which was capable of adversely affecting the goodwill and business reputation of the founder.
The common field of activity
There is no requirement that the defendant should be carrying on a business which competes with that of the plaintiff or which would compete with any natural extension of the plaintiff's business. The expression "common field of activity" was coined by Wynn-Parry J. in McCulloch v May (1948) 65 RPC 58, when he dismissed the plaintiff's claim for want of this factor. This was contrary to numerous previous authorities (see, for example, Eastman Photographic Materials Co. Ltd. v John Griffiths Cycle Corporation Ltd. (1898) 15 RPC 105 (cameras and bicycles); Walter v Ashton [1902] 2 Ch 282 (The Times newspaper and bicycles)) and is now discredited. In the Advocaat case lord Diplock expressly recognised that an action for passing off would lie although "the plaintiff and the defendant were not competing traders in the same line of business". In the Lego case Falconer J acted on evidence that the public had been deceived into thinking that the plaintiffs, who were manufacturers of plastic toy construction kits, had diversified into the manufacture of plastic irrigation equipment for the domestic garden. What the plaintiff in an action for passing off must prove is not the existence of a common field of activity but likely confusion among the common customers of the parties.
The absence of a common field of activity, therefore, is not fatal; but it is not irrelevant either. In deciding whether there is a likelihood of confusion, it is an important and highly relevant consideration
"...whether there is any kind of association, or could be in the minds of the public any kind of association, between the field of activities of the plaintiff and the field of activity of the defendant":" Annabel's (Berkeley Square) Ltd. v G.Schock (trading as Annabel's Escort Agency) [1972] RPC 838 at p. 844 per Russell LJ.
In the Lego case Falconer J. likewise held that the proximity of the defendant's field of activity to that of the plaintiff was a factor to be taken into account when deciding whether the defendant's conduct would cause the necessary confusion.
Where the plaintiff's business name is a household name the degree of overlap between the fields of activity of the parties' respective businesses may often be a less important consideration in assessing whether there is likely to be confusion, but in my opinion it is always a relevant factor to be taken into account.
Where there is no or only a tenuous degree of overlap between the parties' respective fields of activity the burden of proving the likelihood of confusion and resulting damage is a heavy one. In Stringfellow v McCain Foods (G.B.) Ltd. [1984] RPC 501 Slade LJ said (at p.535) that the further removed from one another the respective fields of activities, the less likely was it that any member of the public could reasonably be confused into thinking that the one business was connected with the other; and he added (at p.545) that
"even if it considers that there is a limited risk of confusion of this nature, the court should not, in my opinion, readily infer the likelihood of resulting damage to the plaintiffs as against an innocent defendant in a completely different line of business. In such a case the onus falling on plaintiffs to show that damage to their business reputation is in truth likely to ensue and to cause them more than minimal loss is in my opinion a heavy one."
In the same case Stephenson LJ said at p. 547:
"...in a case such as the present the burden of satisfying Lord Diplock's requirements in the Advocaat case, in particular the fourth and fifth requirements, is a heavy burden; how heavy I am not sure the judge fully appreciated. If he had, he might not have granted the respondents relief. When the alleged "passer off" seeks and gets no benefit from using another trader's name and trades in a field far removed from competing with him, there must, in my judgment, be clear and cogent proof of actual or possible confusion or connection, and of actual damage or real likelihood of damage to the respondents' property in their goodwill, which must, as Lord Fraser said in the Advocaat case, be substantial."
Damage
In the classic case of passing off, where the defendant represents his goods or business as the goods or business of the plaintiff, there is an obvious risk of damage to the plaintiff's business by substitution. Customers and potential customers will be lost to the plaintiff if they transfer their custom to the defendant in the belief that they are dealing with the plaintiff. But this is not the only kind of damage which may be caused to the plaintiff's goodwill by the deception of the public. Where the parties are not in competition with each other, the plaintiff's reputation and goodwill may be damaged without any corresponding gain to the defendant. In the Lego case, for example, a customer who was dissatisfied with the defendant's plastic irrigation equipment might be dissuaded from buying one of the plaintiff's plastic toy construction kits for his children if he believed that it was made by the defendant. The danger in such a case is that the plaintiff loses control over his own reputation.
In Taittinger SA v Allbev Ltd. [1993] FSR 641 the court appears to have recognised a different head of damage. If the defendants were allowed to market their product under the name Elderflower Champagne
"there would take place a blurring or erosion of the uniqueness that now attends the word "champagne", so that the exclusive reputation of the champagne houses would be debased" per Peter Gibson LJ at p.669.
It is self-evident that the application of the plaintiff's brand name to inferior goods is likely to injure the plaintiff's reputation and damage his goodwill if people take the inferior goods to be those of the plaintiff. That is a classic head of damage in cases of passing off. But Peter Gibson LJ may have had more in mind than this. He referred without disapproval to the submission of Counsel for the plaintiffs that if the defendants were allowed to continue to call their product Elderflower Champagne
"the effect would be to demolish the distinctiveness of the word champagne, and that would inevitable damage the goodwill of the champagne houses."
This is a reference to the debasement of the distinctiveness of the name champagne which would occur if it gradually came to be used by the public as a generic term to describe any kind of sparkling wine. Erosion of the distinctiveness of a brand name has been recognised as a form of damage to the goodwill of the business with which the name is connected in a number of cases, particularly in Australia and New Zealand; but unless care is taken this could mark an unacceptable extension to the tort of passing off. To date the law has not sought to protect the value of the brand name as such, but the value of the goodwill which it generates; and it insists on proof of confusion to justify its intervention. But the erosion of the distinctiveness of a brand name which occurs by reason of its degeneration into common use as a generic term is not necessarily dependent on confusion at all. The danger that if the defendant's product was called champagne then all sparkling wines would eventually come to be called champagne would still exist even if no one was deceived into thinking that such wine really was champagne. I have an intellectual difficulty in accepting the concept that the law insists upon the presence of both confusion and damage and yet recognises as sufficient a head of damage which does not depend on confusion. Counsel for the Plaintiffs relied strongly on the possibility of damage of this nature, but it is in my opinion not necessary to consider it further in the present case. There is no danger of "Harrods" becoming a generic term for a retail emporium in the luxury class, and if such a danger existed the use of a different name in connection with an institution of a different kind would not advance the process.
The Judge's findings
The Judge dismissed the Action because he found that there was no likelihood of confusion. He was impressed by (i) the fact that the names were not identical; (ii) the absence of any common field of activity; and (iii) the absence of any evidence of actual confusion. The Defendants have served a Respondents' Notice seeking to support the Judge's decision on the additional ground, which he did not find it necessary to consider, that there was no real likelihood of more than minimal
damage.
Likelihood of confusion
(1). The absence of evidence of confusion. Evidence of actual confusion is always relevant and may be decisive. Absence of such evidence may often be readily explained and is rarely decisive. Its weight is a matter for the judge. In the present case the Judge found it "compelling". I would not have so described it myself; but it is not without significance. Had there really been confusion in the public mind, I would have expected some evidence of it to have manifested itself by the time of the trial.
In the course of argument before us the Judge was criticised for having considered only those members of the public who had made enquiry of the school with a view to sending their children there. It was submitted that he wrongly allowed himself to be influenced by the consideration that the choice of a fee-paying school for one's children is not an impulse purchase, and that a parent who was considering the Defendants' school for his children would be likely to make sufficient enquiries to eliminate any potential confusion that might otherwise occur. This would have been wrong, for the relevant public is not confined to parents who take up places at the school. The Plaintiffs and the Defendants appeal to a common section of the public - affluent members of the middle class who live in London, shop at Harrods and wish to send their children to fee-paying schools. They are the persons who must be kept in mind when considering the likelihood of confusion. But having reread the Judge's judgment more than once, I can detect no such error in it. The passages in the judgment on which reliance has been placed are those in which he was dealing with the evidence of enquiries made by prospective parents. There is nothing to indicate that he did not have the wider class in mind when he came to consider the likelihood of confusion.
(2). "Harrodian". I accept that the word "Harrodian" is the adjectival form of "Harrods", ie. that as a matter of the English language it means "of or pertaining to Harrods", though in the grammatical and not in the possessive sense. "Devonian" is not the possessive form of Devon; "Mancunian" of Manchester; "Etonian" of Eton; or "Churchillian" of Churchill. A Devonian is an inhabitant of Devon; a Mancunian an inhabitant of Manchester; an [old] Etonian an [old] boy of Eton. We do not speak of the Devonian countryside; the Mancunian town hall; the Etonian Boating Song. A Churchillian speech is not one of Churchill's speeches.
"Harrodian" has in the past been used in the same sense by employees of Harrods to describe themselves. It is not the possessive form of Harrods, and is not in general use by the public. We speak of Harrods' car park, Harrods' account card, Harrods' bill, Harrods' sale (of which there is only one). "The Harrodian School" does, in my opinion, proclaim some connection with Harrods, but not a relevant one. It is not surprising that some prospective parents should enquire whether there was any connection, if only out of curiosity. But I would expect most to say to themselves: "It is obviously not run by Harrods; if it were, surely it would be called "Harrods" not "The Harrodian". It was probably established for the education of children of Harrods' employees; perhaps even today they receive favourable terms."
(3). The absence of any common field of activity. This is of particular significance in the present case. The Judge correctly directed himself as to the law; he cannot be faulted in the way in which he applied it. It is not merely that the Plaintiffs have never run a school and have no established reputation for doing so; or even that the nature of the parties' respective businesses are as dissimilar as can well be imagined. It is rather that the commercial reputation for excellence as a retailer which the Plaintiffs enjoy would be regarded by the public as having no bearing upon their ability to run a school. Customers of the Plaintiffs would be surprised to learn that Harrods had ventured into the commercial theatre; they would, I think, be incredulous if they were told that Harrods had opened a preparatory school.
The last two features must be taken together, for they reinforce each other. Nothing in the Judge's decision compels the conclusion that the Defendants would have been permitted to call their school "Harrods" or " Harrods School"; or that an enterprising trader would be permitted to set up a retail shop under the name "The Harrodian". The question is whether there is a real risk that members of the public will be deceived into thinking that a school called "The Harrodian School" (not written in the distinctive Harrods' script or livery) is owned or managed by Harrods or under Harrods' supervision or control.
Whether there is a real likelihood of such confusion is a question of fact. It is primarily a question of impression. The Judge decided that there was not. I would have reached the same conclusion myself. More to the point, I am satisfied that the Judge made no discernible error of law and that his conclusion was one to which he was entitled to come.
Likelihood of damage.
I am also satisfied that, even if there is scope for some limited confusion to linger in the public mind, the Plaintiffs have not discharged the heavy burden of establishing a real likelihood of more than minimal damage to the Plaintiffs' goodwill. I ask myself what would happen if the Defendants' school were to go bankrupt or suffer a drug or sex scandal. The attendant publicity might temporarily tarnish Harrods' good name; but I cannot see any real danger that a material number of Harrods' customers would withdraw their custom. Anyone who was under the mistaken impression that Harrods was responsible for the school would surely say to himself: "They obviously have no idea how to run a school. I always thought they were foolish to try; a cobbler should stick to his last. But they run an excellent store. This won't stop me shopping there." Damage to goodwill is not confined to loss of custom, but damage to reputation without damage to goodwill is not sufficient to support an action for passing off.
Since we reserved judgment on this appeal Sir Alford has dismissed his Wife as Headmistress and accused her of having committed adultery with the English Master, who has resigned. The affair has been widely reported. We allowed the Plaintiffs to put the press reports in evidence. The publicity must at least temporarily have damaged the reputation of the school and may cause it some loss of custom. But the evidence does not affect my conclusion, since I have already considered the possibility that there might be a sex or drug scandal at the school and dismissed the suggestion that the attendant publicity would be likely to cause damage to Harrods' commercial goodwill.
Conclusion.
In my judgment the Plaintiffs have failed on the evidence to establish any real likelihood of confusion or damage to their goodwill. The Judge was right to dismiss the Action. I would dismiss the appeal.
SIR MICHAEL KERR: I have had the great advantage of reading in draft the judgments of Lord Justice Millet and Lord Justice Beldam but have reached a different conclusion.
Although the essential ingredients of the tort of passing off are now firmly established, their application to the facts of individual cases remains elusive. The situations in the wealth of cases cited to us differed widely from the present case without providing any real analogy to its unusual facts. In the result, the defendants were able to meet every citation on behalf of the plaintiffs with the argument that the facts were different. This can admittedly also be pointed out in relation to my own citations below. Nevertheless, principles can be distilled from them.
I recognise that, measured against the background of analogies with precedents in this field, the present case has exceptional features. The main ones are (i) the phonetic and verbal difference between "Harrods" and "Harrodian", (ii) the wide disparity between the respective fields of activity or the parties, and (iii) the absence or paucity of direct evidence of confusion. But although these features present the tort of passing-off in a somewhat different form in this case from past cases, at any rate as a matter of degree, I do not believe that this should affect the outcome. I agree with the submission of counsel for the plaintiffs that, when reduced to its elements, this case falls squarely within the principles of the tort of passing-off, and that justice should lead to the grant of an injunction to restrain the defendants from using the name "Harrodian".
In my view, the judgment of Harman. J, and the conclusion which he reached, are open to criticism in three respects. First, he attached undue importance to the difference between "Harrods" and "Harrodian", without giving effect to the consideration that their significance is indistinguishable in all relevant respects. Secondly, his judgment refers exclusively to the possibility of confusion in the minds of parents and prospective parent of boys at The Harrodian School. It contains no reference to the far greater sector of the public who are aware of the reputation of Harrods and are customers or potential customers of the plaintiffs, but who have never heard of the school or the connection between the Harrodian Staff Club and its site in Barnes. The judgment does not consider the likelihood of confusion in the minds of this large body of persons when they come across references to a school called "Harrodian". Thirdly, the judgment appears to give no or insufficient weight to the fact that a trader's distinctive name can in some cases in itself form part of his goodwill and constitute a property interest, and that this is the position here.
I can best indicate the path which has led me to a different conclusion by summarising what appear to me to be the determinative points of this unusual case, without going over the ground which has already been so fully covered in the judgments of my Lords. I will do so under the established headings of reputation/goodwill, misrepresentation/confusion and damage, although in this case they overlap and merge into each other to an unusual extent.
Reputation/goodwill
The principle that in some cases the reputation of a trader's name may be such that it constitutes part of the goodwill of his trade, and may therefore be in the nature of a property interest, even though the name is not used as part of the description of any products or services supplied by him, was not in dispute between the parties. This can be seen from a number of cases such as the North Cheshire and Manchester Brewery Company and the British Legion cases, to which I refer again below. The present is also such a case and, despite repetition, it is necessary briefly to refer to this aspect of the evidence. This shows that "Harrods" is a household name with a widespread general reputation for excellence, not only in this country but also internationally. The reputation of the name transcends that of an ordinary department store, because it is also associated with, and renowned for, many decades of activities by the plaintiffs in providing services to customers in many different fields beyond the confines of the building in the Brompton Road. It has not achieved the cachet of "Rolls Royce", which has come to be used colloquially as an adjective to express the highest possible standard. But it can claim the aura, tradition and repute of something in the nature of an institution.
Apart from the abundant evidence in this case, this can be seen from a decision of this court given over 70 years ago in Harrods Limited v R. Harrod Limited (1923) 41 RPC 74. The facts were different, but not - I think - the principle. A Mr Winocour registered a company under the name "R.Harrod" as a vehicle for carrying on his business as a registered moneylender. The main thrust of the judgments was directed to the fact that in that case there had been a blatant attempt to deceive, verging on fraud. But this was not the juridical basis of the decision, since it is settled law that proof of intentional deception is not a necessary ingredient of the tort of passing-off. The juridical basis was the fact that the defendant's act of using the name "R. Harrod" would provide for him "at least reputation and advantage from taking this particular name" per Warrington LJ at p. 85, line 19, who went on to say, somewhat charitably, that "it is not necessary to conclude that he did it with the deliberate attempt to mislead". In other words, the repute of the name "Harrods" was then already such that it formed part of the plaintiffs' goodwill, having acquired the character of a property interest, and the defendant was not entitled to ride on the back of it. In a passage in the judgment of Sir Thomas Bingham, MR, in one of the Champagne cases to which I return later, Taittinger SA v Allbev Ltd (1993) FSR 641 at p. 678, he referred to a similar situation as "cashing in on the reputation".
In the Harrods case in 1923 the name complained of was "R. Harrod". "Harrodian" in my view clearly presents an a fortiori situation. It is the adjectival form of "Harrods" and can only mean "of or belonging to Harrods, or in some way connected with Harrods". It cannot mean anything else, and neither Sir Alford in his evidence nor anyone on behalf of the defendants ever suggested anything else. The addition of "ian" is a well-known stylistic adjectivisation of a proper name to denote a derivative or descriptive connection with the bearer of the name, and almost innumerable examples of this form of speech in common currency can be given.
Misrepresentation/confusion
This leads to the second necessary ingredient of the tort, that the name, description or get-up complained of should amount to a misrepresentation, so as to give rise to the likelihood of confusion among members of the public.
In my view, both misrepresentation and likelihood of confusion are self-evident in the present case. The name Harrodian proclaims a misrepresentation by representing a connection with the plaintiffs which does not exist. Its adoption constitutes a wrongful attribution of a non-existent connection. All persons familiar with the name "Harrods" and what it stands for, who chance across a reference to a school named "Harrodian", are at least likely, and in my view almost certain, to think that there must be some connection or association between the store and the school. They will not know its nature, e.g., whether it is a school for the children of the plaintiffs' customers or staff, or whether it is owned, managed or in some way sponsored by the plaintiffs. They will wonder what the connection is, but they will assume that the plaintiffs are somehow "mixed up with" the school. This descriptive expression of the necessary connection for the purposes of the tort of passing-off was accepted by both counsel on this appeal. It appears to derive originally from a passage in the judgment of Lord Cozens-Hardy MR in Ewing (trading as the Buttercup Dairy Company) v. Buttercup Margarine Company Ltd (1917) 34 RPC 232 where he said at p. 237:
"...I know of no power, and I can see no principle for holding that a trader may not be injured, and seriously injured, in his business as a trader by a confusion which will lead people to conclude that the defendants are really connected with the plaintiffs or a branch of the plaintiffs' business, or in some way mixed up with them".
I recognise, of course, that in that case the connection between the parties' trading activities was extremely close, whereas in the present case it is widely disparate. But the question whether, in any particular case, the circumstances will produce a sufficient likelihood of a mistaken belief in a connection must inevitably depend on the facts of each case. As Falconer J pointed out in Lego System AS v Lego M. Lemelstrich Ltd (1983) FSR 155 at p. 187, in what both counsel treated as a now classic phrase, the likelihood of confusion between parties whose activities lie in different fields must depend mainly on the scope of the "field of recognition" of the name in question, and not merely on the disparity between their fields of activity.
In the present case, the manifold services and activities for which the plaintiffs are known, and the wide field of recognition of the name "Harrods" , would in my view be bound to lead to an assumption that the plaintiffs are in some way connected, associated or mixed up with the school which bears their name in its adjectival form. Moreover, in this context I would not accept that it is a necessary ingredient of the tort that the mistaken assumption made by someone chancing across the name of the school must be that the plaintiffs own the school or are responsible for its management. Some assumed commercial, or even philanthropic, connection linking the plaintiffs to the school appears to me to be quite sufficient, since the school's use of the plaintiffs' name, in its adjectival form, as its own name implies a very close connection between them. If, say, a new football club were to adopt the name, or a derivation of the name, of B, a well-known company or institution, or used B's name on the players' outfits, so as to create the false impression that B supported or sponsored the club, it seems to me that B would plainly be entitled to an injunction to restrain the use of its name and the creation of the false impression that it had consented to its use. In the passage cited below from the British Legion case, for instance, Farwell J referred to the possibility of confusion on the ground that the plaintiff might wrongly be assumed to be "in some way, as it were, [the defendant's] sponsor". This, as it seems to me, is the minimum connection which any person familiar with the name Harrods, but unfamiliar with the Harrodian Club and the site in Barnes, would assume to exist between the plaintiffs and the defendants in the present case. Sir Alford was cross-examined at length and ultimately conceded, as I read his evidence and as is indeed obvious, that there was no reason why people should not think that Harrods might start a school or become involved with a school. That is hardly a matter which requires evidence.
This brings me briefly to Sir Alford's state of mind which has been considered in some detail in the judgment of Harman J and again on this appeal. His integrity is not in question. But it seems to me that the attack upon it has diverted the focus of this litigation from more relevant matters which were not dealt with in the judgment. Sir Alford's reason - or one might say excuse - for choosing the name Harrodian was its connection with the site which he had bought for the school. But that connection lay in the fact that the Harrodian Club, Harrods' staff club, had been on the site for some 70 years, as he knew well. The connection between the name Harrodian and Harrods could therefore not have been more direct, closer or more obvious. By choosing the name Harrodian for the school from other possible choices Sir Alford was not only getting the benefit of the connection with the site, but the connection with Harrods as well, as he must have realised. His choice of name therefore carried with it, inevitably, the cachet of an apparent connection with the reputation of Harrods. Since other possible names were mentioned in the course of the argument by way of illustration and comparison, and without any disrespect for them, his choice of name would no doubt have been different if the site had been known for having been the home of the staff club of Woolworths (which was also founded well over 100 years ago), let alone the location of a venerable Borstal. The reasons which Sir Alford gave for adopting this particular name provide an explanation, but not a justification, for his choice. In deciding to give the school this name, he appropriated a part of the goodwill of Harrods for the school.
The issue is then whether this was a misappropriation. The answer is "yes" if it caused, or was liable to cause, confusion in the minds of members of the public, the general body of persons who are the repository of the plaintiffs' reputation, (and if it was liable to cause damage to the plaintiffs, to which I come later).
I have already indicated my reasons for thinking that the inescapable connection between "Harrods" and "Harrodian" makes confusion inevitable, and on the authorities this point is not answered by reference to the absence or paucity of direct evidence to this effect. Even if there is no evidence of confusion whatever, the court must decide for itself, and may conclude that passing-off has been established: see e.g. per Sir Raymond Evershed MR in Electrolux Ltd v Electrix Ltd (1953) 71 RPC 23 (CA) at p. 31. Thus, it has often been said that the availability of such evidence is important, but not its absence, because it is notoriously difficult to procure such evidence. In the present case, given the recency of the start-up of the school, this is even less surprising.
Moreover, where one is dealing with a confusion arising from the similarity of names, the court is entitled to form its own view. Thus, in AG Spalding v AW Gamage Ltd (1915) 32 RPC 273 (HL), which concerned the description under which two different types of football were sold, the speech of Lord Parker, with which all the other members of the House agreed, contained the following passage:
"It was also contended that the question whether the advertisements were calculated to deceive was not one which your Lordships could yourselves determine by considering the purport of the advertisements themselves, having regard to the surrounding circumstances, but was one which your Lordships were bound to determine upon evidence directed to the question itself. I do not take this view of the law. There may, of course, be cases of so doubtful a nature that a judge cannot properly come to a conclusion without evidence directed to the point; but there can be no doubt that in a passing-off action the question whether the matter complained of is calculated to deceive, in other words, whether it amounts to a misrepresentation, is a matter for the Judge, who, looking at the documents and evidence before him, comes to his own conclusion, and, to use the words of Lord McNaughten in Payton & Co Ltd v. Snelling, Lampard & Co Ltd (17 RPC 635), 'must not surrender his own independent judgment to any witness whatever'".
This passage echoes the remarks of Lord Halsbury LC in The North Cheshire and Manchester Brewery Company Ltd. v The Manchester Brewery Company Ltd (1899 AC 83), where the issue arose from the similarity of the names of the parties and he said at p. 84:
"... when one comes to see what the real question is, it is in a single sentence. Is this name so nearly resembling the name of another firm as to be likely to deceive? That is a question upon which evidence of course might be given, as to whether or not there was another brewery, either in the one case or in the other, or whether there were several breweries nearly resembling it in name; what the state of the trade was, and whether there was any trade name: all those are matters which are properly to be dealt with upon evidence; but upon the one question which your Lordships have to decide whether the one name is so nearly resembling another as to be calculated to deceive, I am of opinion that no witness would be entitled to say that, and for this reason: that that is the very question which your Lordships have to decide".
If the name of the staff club on the site in Barnes had been "the Harrods Club", and all other facts in the case had been the same, I do not think that anyone could doubt for one moment that the plaintiffs would be entitled to an injunction to restrain the defendants from calling themselves "the Harrods School". This is a point to be borne in mind at all stages of the argument. But, for the reasons already explained at length, "Harrodian" instead of "Harrods" in my view makes no material difference. In the mind of anyone familiar with "Harrods", a reference to a "Harrodian School" would only add a split second of hesitation and recognition before raising the question about the nature of the connection, which is clearly implied. Among the parents of boys at the school, and prospective parents who might contact the school - the only sections of the public to which the judge referred - this mental question-mark about the connection will of course have been, or will at once be, dispelled. But that would not apply to the general public. The reaction of persons who do not know the site and its history, and who would therefore assume the existence of some direct connection, is illustrated by a letter to Sir Alford from the father of a boy at the school who was concerned about the implied connection. It was written on 6 July 1993 against the background of the present dispute. After expressing the hope for a speedy resolution of it, he wrote:
"Secondly, since this issue has become open, I have to say that I am not particularly in favour of the chosen name for the school, and the implied connections to the Knightsbridge store. I think the school should commit itself to its own identity".
He went on to suggest a different name. But the references to "the implied connections" and "its own identity" speak for themselves and clearly express, by a person who knew the true position, how he would expect others to react to the name "Harrodian".
For all these reasons I consider that there has been a wrongful appropriation of the name by the defendants in this case, with the consequential certainty of a material degree of confusion.
Before turning finally to the question of damage, the necessary third ingredient, I think that something should be mentioned as a matter of fairness, even though it cannot affect the outcome. It concerns the unfortunate Mr McCombie, the surveyor employed by the plaintiffs who took over and completed the second stage of the negotiations for the sale of the site, after Mr Hogben had become distrustful of Sir Alford and felt that he should stay out of the negotiations. His evidence was contained in a witness statement which referred in detail to the file of correspondence extending from February 1990 to January 1993 which he took over. This contained a series of letters, which he exhibited, which gave to him the clear impression, as they would to anyone, that the new school was to be an extension of Sir Alford's Merlin School in Putney and that it would bear the same name. However, none of Mr McCombie's irrefutable written evidence-in-chief was referred to by the learned judge. He merely quoted two questions and answers of his cross-examination in which Mr McCombie had said that in December/January 1992/1993, the stage of the final negotiations, he never considered or discussed with Sir Alford the question of the name under which the new school was going to trade. The judge then added:
"At which point Counsel, very sensibly, sat down".
In fairness to Mr McCombie, this does not do justice to his evidence as a whole or to the part which he played in the history. On the basis of the file which he took over, he had no reason to think that the school was going to be called anything other than Merlin, and he had no reason to give any further thought to its name at the final stage.
Damage
The standard remedy in passing-off actions is an injunction; an account to assess damages is rare. In the great majority of cases the relevant damage will not be measurable in pounds and pence, but consist in the probability of damage to the plaintiff's reputation and goodwill which is ultimately liable to lead indirectly to a reduction in trade. Loss of distinctiveness causes damage to a reputation for excellence, and loss of trade will ultimately follow. The authorities show two relevant propositions in this regard. First, a debasement or dilution of the plaintiff's reputation, as the result of the action of the defendant, is a relevant head of damage. Secondly, if the act which constitutes the passing-off has the effect of raising in people's minds the mistaken belief of a connection between the defendant and the plaintiff, but which is in fact non-existent, then the court will have regard to the fact that the plaintiff has, to that extent, lost control of his reputation, and that he has therefore suffered damage to his goodwill by a potentially injurious association with the defendant against which the court will protect him by injunction.
A number of passages bear out these propositions. Inevitably, the factual contexts were different, but the aspects of principle are not open to question.
As an illustration of the first proposition one can refer to the lengthy passages in the judgments of this court in the Taittinger Case (supra) at pp 668-670, 674 and 678. Thus, at p.669 and 670, Peter Gibson LJ refers repeatedly to the danger of the blurring or erosion of the distinctiveness of the name in question, in that case "Champagne", and at p. 674 Mann LJ said:
"... the impairment is a gradual debasement, dilution or erosion of what is distinctive ... The consequences of debasement, dilution or erosion are not demonstrable in figures of lost sales, but that they will be incrementally damaging to goodwill is in my opinion inescapable."
And on page 678 Sir Thomas Bingham MR answered the question why he would grant injunctive relief as follows:
"Because a reference to Champagne imports nuances of quality and celebration, a sense of something privileged and special. But this is the reputation which the Champagne houses have built up over the years, and in which they have a property right. It is not in my view unfair to deny the defendants the opportunity to exploit, share or (in the vernacular) cash in on that reputation, which they have done nothing to establish. It would be very unfair to allow them to do so if the consequence was, as I am satisfied it would be, to debase and cheapen that very reputation".
In fairness to the defendants, it cannot of course be said in the present case that a similar consequence would necessarily follow, and indeed it is greatly to be hoped that this would not be the case. But that is not the test. The crucial point, as stated in the second of the foregoing propositions, is the plaintiff's inevitable loss of control of his reputation and the consequent risk of damage to it.
The validity of this second proposition can be seen from a passage in the well-known judgment of Farwell J in The British Legion case (supra), where he said at p. 564:
"If the use of the Defendants' name, as it is now used, is to suggest to any ordinary person that the Plaintiff association is in some way connected with the Defendant Company or is in some way, as it were, its sponsor, then if evil befalls the Defendant Company and it finds itself (I am not suggesting it will) in trouble either under the Licensing laws or in financial trouble or in some other way of discredit, the result will be, in my judgment, that many of the persons who knew of the existence of the Defendant Club may think that the Plaintiff association has been very ill-advised and very unfortunate having any connection with such a company, and that might well tend to prevent persons who otherwise would have supported the Plaintiff association by subscriptions or otherwise from continuing to do so... If the Defendant Company were to fall on evil days that might, although not to a great number of persons but to a certain number of persons, reflect discredit on the Plaintiff association and might result in damage to that association...".
Admittedly, the apparent connection between the parties in that case was infinitely closer than in the present case and the risk of confusion inevitably much greater. But the principle is the same, and the remainder is a question of degree. Schools are often in the news, inevitably not for the purpose of proclaiming their excellence, and in the present case the plaintiffs have already been able to refer to a number of early press reports which alleged strong parental dissatisfaction with Sir Alford's unusual educational policies. In addition there is now the further evidence which we have admitted in respect of certain unfortunate events at the school since the trial, and indeed since the main hearing of this appeal, which have resulted in Sir Alford's dismissal of his wife as the headmistress in circumstances of considerable notoriety and discreditable publicity.
Moreover, the danger of damage to the plaintiffs' reputation and goodwill which is liable to result from the false impression of a connection with this school may only be the first step. It seems to me that there is a further aspect of damage to the plaintiffs which should qualify for consideration by the court in deciding whether or not to grant an injunction. It does not appear to have arisen in any of the cases to which we were referred, but it adds to the reasons for granting an injunction.
The evidence shows that the name "Harrodian" continues to be used by the plaintiffs internally in many ways, and there are also a number of clubs and associations with outside members which bear this name and which have a public connection with the plaintiffs. In addition, there are plans, which pre-date the present dispute, to use the name "Harrodian" publicly for various purposes in the Harrods Hotel to be built in Trevor Square, Knightsbridge.
However, as this case stands, the extinction of the exclusive connection between the name "Harrodian" and the plaintiffs will have the consequence that their use of this name will no doubt have to be abandoned, at any rate for public purposes. The name "Harrodian" will become generally available, and its use could only be effectively restrained by the plaintiffs, if at all, to adopt an illustration given by the judge in his judgment, "if a trader opened a shop under the style "The Harrodian Shop" selling clothes or shoes or food, perhaps especially if the shop were situate in the Brompton Road or in Beauchamp Place or even in the Fulham Road ...". Thus, if the continued use of the name by the defendants is permitted in the present case, then it seems highly likely that it would proliferate. There would then be nothing to prevent Sir Alford from also giving this name to his school in Putney and thereafter perhaps to other schools as well. The free use of the name might then spawn Harrodian garages, newsagents and other businesses, and even a moneylender might emerge under this name, though the more remote designation of "R Harrod" would no doubt still be prohibited.
I do not think that potential developments on these lines are too far-fetched to deserve consideration. The point is a double one. The use of the adjectival form of their own name will become lost to the plaintiffs; but the false impression of a connection between the plaintiffs and unconnected businesses using the name "Harrodian" will proliferate. The plaintiffs' reputation will become involved with their fortunes or misfortunes, and become a hostage to them. In my view the plaintiffs have done nothing to deserve this detriment, nor the defendants this benefit.
Finally, I must repeat myself for emphasis. If the staff club had been called "The Harrods Club", and all other facts had been the same, it seems unthinkable that an injunction precluding the defendants from calling themselves "The Harrods School" would be refused. All the arguments about the disparity between the parties' fields of activity, the paucity of evidence of confusion, and the relative unlikelihood of damage, would go out of the window. If so, can it really make any difference that the appropriated name is not "Harrods" but Harrods in its adjectival form? That is a question for the court, and in my view the answer is "no".
I would accordingly allow this appeal.
LORD JUSTICE BELDAM: The appellant is the proprietor of the famous department store in Knightsbridge. There it has for many years carried on the business of its founders, providing the highest quality retail goods and services to the public. For the welfare of its employees it ran a sports and social club known as the Harrodian Club on a large, imposing and open site adjoining Lonsdale Road in Barnes. After 1960 interest in the activities of the club started to wane and by 1990 the appellant had decided to offer the site of the Harrodian Club for sale. Early in 1993 Sir Alford Houston-Boswall and his wife who ran a pre-preparatory school in Putney known as the Merlin School acquired "the Harrodian Club site" for £3.25M. It was their intention to expand their activities in the field of education to open a pre-preparatory school on the site. They decided to call it the Harrodian School. The appellant objected to the use of this name on the ground that it is a misrepresentation leading or likely to lead the public to believe that the school was run by or connected with the appellant's business and that there was a real risk of damage to its goodwill should the school fail or fall short of the standard of excellence which the public have come to associate with the name "Harrods". The appellant went so far as to accuse Sir Alford Houston-Boswall of deliberately deceiving it into selling him the site by representing that the school would be called the Merlin School. The judge rejected this suggestion, accepting the evidence of Sir Alford Houston-Boswall that he chose the name because he wanted the school to be identified with the site and the considerable amenities which it was known to offer.
The appellant seemed to attach great significance to its contention that Sir Alford deliberately chose the name "The Harrodian School" with the intention of exploiting the plaintiff's goodwill. It argued that the fact that he had done so, though not conclusive, was strong evidence from which to infer that he had been guilty of passing off his school as being run by or connected with the plaintiff. Mr Sparrow Q.C. invited us to reverse the judge's finding that Sir Alford had no such intention.
It is convenient to consider this question first.
The judge found that during initial negotiations solicitors acting on behalf of Sir Alford did give a clear, precise and considered representation that their client's purpose was to buy the club site for the Merlin School Ltd. and that the intention was to use the property to expand the school but those negotiations came to nothing, as did further negotiations. When in 1993 the well known agents Jones, Lang, Wootton renewed the negotiations for Sir Alford, they made it clear that Sir Alford's interest in acquiring the Harrodian Club premises was "to create a co-educational preparatory school". No mention at all was made of the Merlin School. The judge, having heard the evidence, held:
"The relevant minds conducting the negotiation on Harrods' behalf had no such belief and there were no representations in the period leading up to the offer and the narrowing of the gap which referred to the Merlin School ... I am wholly satisfied that there was no representation made in the autumn of 1992 or January 1993 which could have or did act upon Harrods' mind in any sense that they were dealing with the sale of the property for the Merlin School."
Sir Alford Houston-Boswall was subjected to a rigorous cross-examination in which it was made plain that his good faith was being attacked. Of him the judge said:
"Thus I find that Sir Alford behaved entirely properly throughout and at no time misled the vendors by any sort of representation at all ... Thus the whole charge against Sir Alford of an intent to deceive and mislead on that point wholly fails.
He is charged that he in fact formed the intention to use the name "the Harrodian School" for the benefit of trading on the back of Harrods' reputation. He was heavily cross-examined on this point. In my view he came out of that cross-examination unshaken. I hold as a fact, having watched him with great care, that I do not believe he at any time regarded it as material to the vendor that he intended to use the name "the Harrodian School" or that he ever believed that Harrods Ltd. would object if he did. He was in the upshot mistaken in that they objected to the point of litigation for several days in this court. Nonetheless I do not believe Sir Alford ever at any time (down to completion and thereafter) foresaw that he would meet such objection. He had no intention whatever of misleading the other side. It is the fact that he did not specifically tell Harrods Ltd. of his intention to use the name the Harrodian School. The intention was formed from about 5th January 1993 onwards as I find "to trade if I may because I can register the company name under the name Harrodian School". But equally Harrods Ltd. or its solicitors never asked Sir Alford or the intended purchaser which was eventually a Liechtenstein entity under what name he proposed to trade and there was no particular reason why he should disclose it to the other side. It is simply a matter which was left unstated without any obligation or expectation that it should be stated. That in my view is no foundation for any charge of intent to deceive or intent to trade on the back of Harrods' reputation."
The judge then drew attention to the undoubted fact that Harrods had thought so little of the matter at the time of sale that they had even left the large signboard on which was written "The Harrodian Club" with the word "Harrodian" in the distinctive script used by Harrods and in the house colours on the site when it was sold.
Mr Sparrow QC for Harrods referred us to substantial excerpts from the transcript of evidence contending that the judge's assessment of Sir Alford's evidence could not be supported.
There are many statements in the reported cases to guide an appellate court in a question of this kind.
In Watt v. Thomas [1947] AC 484 at page 487 Lord Thankerton set out three propositions:
"I Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion;
II The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;
III The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses and the matter will then become at large for the appellate court."
Or, as Lord Sumner put it more succinctly in "The Hontestroom" [1927] AC 37:
"Is there any glaring improbability about the story accepted?"
I interpret these criteria as requiring an appellate court to have a high degree of conviction that the judge's assessment of the good faith of a witness is wrong if it is to be reversed. An illustration showing the need to be so convinced is provided by the case of Gross v. Lewis Hillman Ltd. [1970] Ch. 445. The question in that case was whether a representation made by an estate agent in two letters had been made fraudulently. The judge found that it had not and on appeal this court was asked to reverse his finding. Judged purely by the two letters the estate agent had made a representation which he must have known to be false but nevertheless Cross L.J. said at page 459:
"If James intended the letters to convey the impression that the company was a going concern, or was willing that a recipient should get that impression, clearly he was guilty of fraud, because he knew very well that it was not a going concern. But although that is, in my view, the impression that the letters read together would naturally create, James cannot be held guilty of fraud unless he intended or was willing that they should be read in that way."
Widgery L.J. at page 464 said:
"When one reads the two letters in that way (together and combining the information they contain), undoubtedly they suggest to the ordinary reader that this was an old established company with three retail branches which were going concerns, and if Mr James had applied his mind to that point, he could not have failed to realise that such information was utterly false. The question is, did he apply his mind to that, and can it be said that he made this statement with intent to deceive or that he made it dishonestly. I find it quite impossible to say so."
The impression formed of a witness by the judge who observes his demeanour and hears his answers is never more significant than when the witness's honesty in a particular transaction is called in question. From the printed page I could discern nothing to suggest that the judge had erred in his appreciation of Sir Alford's testimony, nor was there any glaring improbability in his account of the reasons for or the motive which led to his choice of the name. I consider the judge's findings on this issue to be unassailable.
This question apart, the primary facts were hardly in dispute. The appellant, however, argued that the judge drew unwarranted inferences from the facts which undermined the validity of his judgment in the respondents' favour. He made these findings:
(1) That Harrods had no reputation which could create goodwill in the field of education, however high its reputation and valuable its goodwill in the field of a department store.
(2) That the name "Harrodian" had not been used by Harrods in the course of its trading activities (in the widest sense) for the last 40 or 50 years trading though it intended to use it sometime in the future in connection with a new hotel venture and a cookery school attached to it.
(3) That no direct confusion with Harrods' business had been proved and from some evidence it was possible to infer lack of confusion.
Having made these findings, the judge called to mind the opinion of Lord Oliver that in this branch of the law reported cases are of only analogical assistance. In Reckitt & Colman Products Ltd v Borden Inc and others [1990] RPC 341 Lord Oliver said:
"It has been observed more than once that the questions which arise are, in general, questions of fact. Neither the appellants nor the respondents contend that the principles of law are in any doubt. The law of passing off can be summarised in one short general proposition - no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying "get-up" (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he 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..... Thirdly, he must demonstrate that he suffers or, in a quia timet action that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff."
The judge, after finding Sir Alford had no intention to mislead, said:
" Having got rid of any question of intent, I am left back with the question of : Is there here a representation which is likely to mislead the public into believing that there is an association or connection between the Harrodian School and Harrods Limited? In my view, upon this evidence, there is no likelihood of confusion and therefore there is no passing-off..."
The appellant contends that this conclusion is wrong because quite apart from the evidence the association between the word "Harrodian" and "Harrods" is obvious and therefore the possibility of confusion must follow. Taken in isolation the judge's words are susceptible to this criticism. But in the context of the judgment as a whole I do not believe such a literal interpretation is justified. For my part I would accept that some members of the public would associate the respondents' enterprise with the appellant. A person who lived locally and was familiar with the site at Barnes would be particularly likely to do so. But we are not in this case in the realm of confusion in the origin of a product side by side with another on the supermarket shelf. As the judge held, the fields of activity are distinct and although the presence of the Harrodian School on a site long associated with the appellant could cause some members of the public to think that there was a link with the department store, that would not be sufficient to sustain the appellant's cause of action. To be actionable, the confusion caused must lead the public to believe that the goods or services offered by the defendant are the goods or services of the plaintiff and by reason of that erroneous belief in the public be likely to cause damage to the goodwill of the plaintiff's business.
To assist analysis it is helpful to state these attributes separately; but in truth the likelihood of damage to the goodwill of the plaintiff's business and its reputation can only be assessed by regarding the risk as a function of both. The risk of significant damage to the appellant's goodwill and reputation from the activities of the defendant depends not only on the nature and strength of the connection made by the public who perceive a link in the name notwithstanding the different spheres of activity, but also on how many of those persons would in consequence regard shortcomings in the running of the school as reflecting adversely on the quality of the goods and services offered in the department store and on its reputation as a supplier of such goods and services and so whether any customer or potential customer is likely to withhold, withdraw or reduce his custom or consider the appellant's reputation for excellence to be diminished. As the judge had discounted the evidence of direct confusion, the plaintiff emphasised the likelihood or risk of damage, particularly stressing the analogy with the case of British Legion v. British Legion Club (Street) Ltd. [1931] 48 RPC 555. Quite apart from the warning given by Lord Oliver about the limited use of analogy, I am satisfied that on the evidence before the judge and on his findings he could properly reach the conclusion that the appellant had not made good a case that the running of a school by the respondent on the site of the former Harrodian Club under the style of "the Harrodian School" would cause any significant threat to the goodwill of its department store. After judgment had been reserved, on 25th March the court received an application from the appellant to adduce further evidence. It consisted of reports from two or three newspapers of the breakdown of the marriage of Sir Alford Houston-Boswall and his wife and of alleged infidelity by Lady Houston-Boswall with a master at the school. Although Mr Sparrow Q.C. had already addressed detailed submissions to the court inviting us to take full account of the risk to the plaintiff's reputation if reports of a similar character were given publicity, we decided that we ought to consider this further evidence.
Having read the reports, it seemed to me not irrelevant to consider whether, in the year 1996, if the reports had concerned the matrimonial affairs of a senior director or chairman of a large department store it would significantly have damaged the store's goodwill and whether as a result customers would be likely to discount a reputation for excellence in the provision of its goods and services. I find it impossible to think it would be at all likely to do so. In the remoter connection of the present case, I would say the risk to the plaintiff's goodwill and reputation was negligible.
In my judgment, therefore, the additional evidence does not lead me to conclude that the judge's decision was wrong and for these reasons and those given by Lord Justice Millett I would dismiss the appeal.
ORDER: Dismissed with costs and the appellant plaintiff's application for leave to present a petition of appeal to the House of Lords is refused.
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