Associated Newspapers (Holdings) Plc v Insert Media Ltd and Others

JurisdictionEngland & Wales
Judgment Date21 December 1990
Date21 December 1990
CourtChancery Division

Chancery Division

Before Mr Justice Mummery

Mail Newspapers plc
Insert Media Ltd and Others

Passing off - misrepresentation - unauthorised advertising

Unauthorized advertising inserts constitute misrepresentation

Advertising matter inserted between the pages of a national newspaper, without the authority of the publishers, constituted or involved the making of a misrepresentation to purchasers and readers that such inserts were connected or associated with the publishers and the newspaper.

A statement printed on the insert dissociating the publishers from it would not have the effect of converting that false representation into a true one.

Mr Justice Mummery so held in the Chancery Division when giving judgment in favour of the plaintiff, Mail Newspapers plc, in a quia timet action for passing off brought by the plaintiff against the third defendant, Mr Christopher J Arnold.

Judgment in default of notice of intention to defend had been entered against both the first defendant, Insert Media Ltd, and the second defendant, Hampstead Distribution (a firm) for damages to be assessed.

Mr Gavin Lightman, QC and Mr John P Whittaker for the plaintiff; Mr Charles Sparrow, QC and Mr Michael Briggs for the third defendant.

MR JUSTICE MUMMERY said that Mail Newspapers, formerly Associated Newspapers plc, were the owners and publishers of two national newspapers, The Daily Mail and The Mail on Sunday, and of You magazine, which was a colour magazine or supplement distributed at no specific charge with The Mail on Sunday.

In the action Mail Newspapers sought to prevent the defendants from inserting, or causing or procuring others to insert advertising inserts or other printed material, without the approval or authority of Mail Newspapers, in copies of The Daily Mail, The Mail on Sunday and You magazine.

History of the proceedings

Since the writ was issued on December 3, 1985 the first and second defendants, controlled and owned by the third defendant, Mr Arnold, had ceased trading.

Following the granting of an interim injunction in favour of the plaintiff by Mr Justice Russell in chambers in the Queen's Bench Division, Mail Newspapers now asked the court to make a permanent injunction against Mr Arnold restraining the insertion of advertising inserts or other printed material into their publications whether or not such inserts had written upon them a disclaimer purporting to dissociate that material from Mail Newspapers.

The Facts

Both The Daily Mail and The Mail on Sunday with You magazine had substantial circulations throughout England and Wales. The Daily Mail, first launched in 1896, had a circulation of about 1.8 million. The Mail on Sunday, first published in May 1982 and supplemented by the You colour magazine since October 1982, had a

circulation of about 1.9 million.

The price paid by the public for those newspapers was a major source of revenue for Mail Newspapers. In the case of The Daily Mail the income from the sale price accounted for 60 per cent of its revenue and in the case of The Mail on Sunday the purchase price accounted for 25 per cent of its revenue.

The remaining revenue in each case was derived from the sale of advertising space. Mail Newspapers also had the right to insert or have inserted loose advertising material between the pages of You magazine.

Mail Newspapers were at present in negotiation with various companies, including a German company called Ferag, which was a major supplier of automatic inserting equipment to the newspaper industry.

As a result inserts might soon appear in copies of The Daily Mail and The Mail on Sunday with the authority of Mail Newspapers.

The evidence showed that an "insert boom" was spreading to the United Kingdom from the United States and Europe and its advantages had been readily appreciated by Mr Arnold. Since 1983 he had been involved in setting up a business based on insert advertising.

Subject to the outcome of the action, Mr Arnold proposed to carry on such a business by inserting advertising material between the pages of national newspapers and magazines including The Daily Mail, The Mail on Sunday and You magazine prior to delivery of those publications to members of the public.

The service offered would include arranging for distributors or retailers to insert his customers' material in particular newspapers or magazine titles, or a combination of titles and either on a national, regional or local basis. Mr Arnold would not himself print, produce or own any of that material.

All of that would be done without the knowledge or consent of Mail Newspapers or any other newspaper proprietor.

Mr Arnold's preference was to place the inserts without...

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