On 20 December 2012 Sussex Heights (Brighton) Limited sought to mislead shareholders by writing
At the trial at the Patents Court in London, on Monday 17th December 2012, His Honour Judge Birss QC found in favour of Sussex Heights (Brighton) Limited and duly granted an injunction against Tom Coady to prevent him (his servants or agents) from passing off in the future.
This is a complete misrepresentation of the outcome of the Trial. In truth, neither side “won”, but SHBL failed to have granted all of their claimed reliefs outlined below, except refusal to grant leave to appeal which in the event they ended up demanding instead for themselves to no avail! In the words of HRH Birss “Which is the successful party in this case? Neither is successful. The defendant got an extemely narrow injunction.”
The only relief granted was changed beyond recognition to force acknowledgement of the provenance of any documents that originate from them to be marked as such.
In costs they only asked for £150 damages (having threatened “up to £50,000″), but this was refused by the Judge who added “I will not make a desemination order as it would cause more confusion.”
So the question remains, why did SHBL bring this case in the first place? Why did one director believe that hiring Bains Cohen, who renamed themselves during the course of the proceedings, somehow validated their claim? Most importantly, why did they refuse to settle as instructed by the Judge on three occasions? Some people might suggest the action was brought out of spite and because none of the individual Directors offered to underwrite the action or indeed persuade any other shareholders to contribute anything other than a Disney themed dollar bill? Even the Judge described their motive as malicious after the verdict.
In any case, just to set the record straight, the following reliefs requested by SHBL were all denied:
IT IS ADJUDGED THAT:
1. The Claimant succeeds in its claim for passing off against the Defendant.
AND IT IS ORDERED THAT:
2. The Defendant (whether by himself, his servants or agents or otherwise howsoever) be restrained from passing off any website as a website owned, operated and/or provided by the Claimant and/or associated with the Claimant. [by the provision on such website of any documents relating to the Claimant without a statement alongside those documents that makes clear that those documents are documents of the Claimant.]
(effectively narrowed to relate only to provenance of SHBL documents)
3. The Defendant shall on or before [date] deliver up to the Claimant’s solicitors, or at his option destroy or obliterate on oath, all articles or materials the use of which would contravene the foregoing injunction and that are within the Defenda,ssession, power, custody or control.
4. If destruction or obliteration is elected by the Defendant, then on or before [date] the Defendant must make and serve upon the Claimant’s solicitors an obliteration in respect of all such items longer any item in the possession power the Defendant whose use would contravene the foregoing injunction.
5. The Defendant shall on or before [date] take any and all steps as lie within its power to transfer the domain names sussexheights.org and sussexheightsresidentsassociation.org.uk into the possession and control of the Claimant with immediate effect.
6. Within [ ... ] days of the date of this Order the Defendant shall, at its own expense, provide on the homepage of its webs it Heights (Brighton) Limited Successful Passing Off Judgement indicating that the Defendant has been found to be passing himself off as the his website, together with hyperlinks to the said link, notice and hyperlinks are to remain until ave been transferred to the Claimant as per paragraph 5 above.
7. The Claimant is entitled at its option to either:
a. An inquiry as to the damages, if any, suffered by the Claimant y reason of the Defendant’s acts of passing off; or
b. An account of the profits, if any, made b his acts of passing off, any interest thereupon found due to the Claimant (including pur~to section 69 of the County Courts Act 1984J
8. The Defendant must serve upon the Claimant’s solicitors a Schedule setting out any transactions (and profits thereupon) made by the Defendant facilitated by its acts of passing off, and the values and profit associated with t to make the election provided for in paragraph 7 above. The Claimants shall make such election by [date].
9. The Defendant shall pay all sums certified to be due to the Claimant as a result of such inquiry or account, toget with interest at a rate and for a period as shall be directed at the taki of said inquiry or account.
10. The Defendant shall pay the Claimant’s costs of the action.
PERMISSION TO APPEAL
11. Permission to appeal is refused.