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

NGRS is a trade body which represents and provides services to its members in the removal and storage business.  NGRS appealed the first instance decision of Mr Recorder Campbell QC in which he held that, despite advertising on a website, www.reallymoving.com, the Respondents were not responsible for the misrepresentation ‘Members of NGRS’ on the www.reallymoving.com ‘directory page’ for the purposes of the tort of passing off.  The first ground of appeal was that the Judge erred in law in requiring that the respondents had knowledge of the directory page or intended the advert to appear there. The second ground was that the Judge erred in accepting the oral evidence of the Third Respondent, Mr Sampson – that he did not know about the wording on the webpage, despite what was alleged to be contradictory written evidence on the same issue.  NGRS also applied for permission to adduce supporting evidence on appeal in respect of the factual ground.

Kitchin LJ and Asplin LJ heard the appeal.  In her judgment, Asplin LJ refused permission to adduce the evidence. She held that the balance was in favour of the finality of the litigation, including because the evidence could have been obtained before the trial.  In light of that, the factual ground of appeal was dismissed.  In respect of the legal ground, Asplin LJ held that the Judge was correct in finding that respondent had not made the representation; instead it was the act of the website owner, an independent third party, without the consent of the respondent.  She did not consider that the Judge had erred in requiring knowledge or intention in those circumstances and the legal ground of appeal was dismissed.

Adam Gamsa appeared for NGRS

[2018] EWCA 1302 (Civ)

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