Burge and Another v Haycock and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LADY JUSTICE HALE,LORD JUSTICE RIX,Lord Justice Brooke |
| Judgment Date | 31 May 2001 |
| Neutral Citation | [2001] EWCA Civ 900 |
| Docket Number | A3/2001/1185 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 May 2001 |
[2001] EWCA Civ 900
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Hart)
Royal Courts of Justice
Strand
London WC2
Lord Justice Brooke
Lady Justice Hale
Lord Justice Rix
A3/2001/1185
MR R HACON (Instructed by Messrs Knights Solicitors, Tunbridge Wells TN1 1UT) appeared on behalf of the Appellants
THE RESPONDENTS did not appear and were not represented
This is an appeal by the claimants from an order of Hart J made on 24th May 2001 when he dismissed their application for an interim injunction in an action they had brought for passing off. The nature of their application, which relates to a parish council election in Herefordshire which is to take place on 7th June, will become clear in due course.
We have read the judgment of Hart J in which he makes it clear that he would have been willing to make some sort form of order against the first defendant, Mr John Bernard Haycock, except that he was bound by a judgment of this court in Kean v McGivan [1982] FSR 119. He said that the ratio of that case appeared to him that a political party as such could not use the remedy of passing off to protect the value it had in a particular name. He granted the claimants permission to appeal.
The application was originally made on short notice, and short notice has been given to the first defendant of this appeal. We have been told that when the claimants' solicitor notified the first defendant that the appeal would be taking place today he said that he would be in Hereford today, but he expressed no preference for some different date for the appeal. In view of the relative urgency of the matter, it appears to me in all the circumstances appropriate to abridge time as appropriate.
The claimants are the Chief Executive and Deputy Chief Executive of the Countryside Alliance ("the Alliance"). The evidence about the Alliance comes from a witness statement by Mr Armstrong, the Deputy Chief Executive, who has responsibility in practice for the day-to-day running of the Alliance. He says that the Alliance is an organisation which campaigns and lobbies for countryside issues and, in particular, for the interests of those who take part in country sports activities and whose livelihoods are farming or countryside connected. Because of the present political climate, the Alliance is best known for campaigning against attempts to introduce a ban on country sports activities and, most particularly, hunting with dogs.
The Alliance was formed on 1st March 1998. It was created through an amalgamation of the British Field Sport Society, an organisation which had existed since the 1930s specifically to defend country sports against the threat of a parliamentary ban, and two more recent organisations: the Countryside Business Group and the Countryside Movement.
He produces what he says is a copy of the recent draft of the Alliance's constitution; a draft in the sense that the document which is before us is not signed by anybody. But it purports to have been revised at the Annual General Meeting held on 23rd May 2000. I see no reason to suppose that this is not the agreed constitution of the Alliance. The constitution has provisions as to membership, which include a provision that:
"The Board may at its absolute discretion and without giving reasons, decline to admit any person to membership of the Alliance whether or not such person has paid a subscription or membership fee."
Mr Armstrong explains that the purpose of the amalgamation was to create a broader church to campaign for the interests of all rural people who appeared to be increasingly becoming a minority whose interests were not properly understood or protected by an increasingly urban government. He added that the Alliance did not support or oppose any particular party, but its officers privately supported a variety of political parties. By way of example, its President and Chief Executive are all members of the Labour Party. Its director of political affairs was formerly the Chief of Staff for the Chairman of the Conservative Party. The Alliance has an head office in Kennington, with regional offices throughout England and Wales. It has about 90 employees, but many more voluntary staff as well. He says that the Alliance has never put up a candidate for an election of any kind and has no intention of ever doing so. The Alliance's advice to its members is to support in any election the candidate who is most sympathetic towards countryside interests. It would therefore be highly inappropriate for the Alliance to put up a candidate for a public election of any kind.
I pause there to show that the evidence in this case differs from the evidence in a number of cases concerned with disputes over elections, in that the claimants in this case have no wish or inclination to put up candidates in any public election.
Mr Armstrong then goes on to say that the Alliance has a membership in England and Wales of approximately 95,000. He says it would be fair to describe it as having a high public profile and being the most well known organisation campaigning for countryside interests. He refers to the Countryside March on 1st March 1998 which attracted over 300,000 participants through the centre of London, and he says that if it had not been for foot-and-mouth disease, there would have been a further march through the centre of London in March of this year, which would certainly have attracted considerably higher numbers than the one three years ago.
He then says this:
"The Alliance is a non-profit making organisation which pays tax only on bank interests and dividends. Nonetheless, the Alliance does have significant trading activities in order to generate revenue for its campaigning and lobbying role. At most country sports and countryside events across England and Wales, the Alliance has a trade stand which sells a variety of products, including mugs, books, tea towels, puzzles, note pads, cards, pullovers, polo shirts and other items. Our stands appear at point-to-points, country fairs, horse trials and game fairs. The Alliance also provides a variety of benefits and products to its members."
It describes arrangements it has made with a holiday company which organises riding and adventure holidays, and also arrangements it makes for insurance cover for members and the benefit of a free legal helpline service Mr Armstrong then goes on to describe how in September 1999 the Alliance became aware of a possible attempt by the British National Party to associate themselves with the Alliance. He has exhibited to his witness statement correspondence between Mr Burge, the Chief Executive, and Mr Tyndall, the Chairman of the British National Party, arising out of speculation in the press in September 1999. Mr Armstrong describes how antipathetic the Alliance is to some of the aims of the British National Party. He says that the Alliance, among other things, campaigns from an ideological point of view for the safeguarding of the interests of minorities; the British National Party's main policy is the removal of racial minorities from Britain.
He then describes how he heard that Mr Haycock, the first defendant, was standing purportedly as a Countryside Alliance candidate in the Bromyard Town Council election on 10th May. He said that he checked with the membership department and found that Mr Haycock was not even a member of the Alliance. He says why he was concerned about this development. He said:
"Mr Haycock had, at least until only a couple of months ago, clearly been closely and public associated with British National Party and, for the reasons I have stated above, any apparent connections between the British National Party and the Alliance would be extremely damaging to the reputation of the Alliance. It would also suggest that the Alliance was putting forward candidates for public elections, despite its policy of not doing so and instead encouraging support for pro-countryside candidates. It would also indicate that the Alliance welcomed as an Alliance representative a supporter of a party widely perceived as being racist and certainly one which has at its heart prejudice towards minorities."
The evidence shows how a letter before action was sent to Mr Haycock on 11th May and a chasing letter was sent on 18th May. There is a newspaper cutting with the papers in which he is reported as maintaining that he cannot be stopped from standing. He is quoted as saying: "What is the Alliance going to do about it? If the electoral office has passed it, that is good enough for me." He is reported as saying he was no longer a British National Party member and was trying to do the Countryside Alliance a favour by standing in their name. He said: "I am a strong supporter of the Countryside Alliance. I have been to all the rallies."
There are in the papers before the court copies of the nomination paper for the election of a parish councillor for the Bromyard and Winslow Town Council for the election to be held on Thursday 7th June 2001 which shows Mr Haycock, his name and his home address. His description (if any) is Countryside Alliance and he has a proposer and seconder as required by law. We also have with the court papers a copy of the statement as to persons nominated, signed by Mr Pringle, the second defendant, who is the returning officer, dated 14th May 2001. There were four candidates, one of whom describes himself as an independent, Mr Haycock who describes himself as the Countryside Alliance, and the other two...
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