Comet Products U.K. Ltd v Hawkex Plastics Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MEGAW,LORD JUSTICE CROSS |
| Judgment Date | 07 December 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1207-1 |
| Docket Number | 1970 C. No. 8948 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 December 1970 |
[1970] EWCA Civ J1207-1
The Master of the Rolls
Lord Justice Megaw
and
Lord Justice Cross
In The Supreme Court of Judicature
Court of Appeal.
Revised
On Appeal from the High Court of Justice
Queen's Bench Division (Mr. Justice Cantley)
MR. MICHAEL SHERRARD Q.C. and LORD CAWLEY (instructed by Sampson & Co., Solicitors, London) appeared on behalf of the Defendants (Appellants).
MR. C. SPARROW Q.C. and MR. G. LIGHTMAN (instructed by Ashurst, Morris, Crisp & Co., Solicitors, London) appeared on behalf of the Plaintiffs (Respondents).
This is a case in which the Plaintiffs in a civil action allege that the Defendants have "been guilty of a contempt of Court in disobeying an injunction which was made against them. The question has arisen as to whether the Defendants can be compelled to be cross-examined on an affidavit which has been filed in the course of the proceedings. I must give first the earlier history.
Comet Products U.K. Limited produce what perhaps I may call a gadget; it is the Comet Four-in-One Safety Hair Cutter, which is an appliance which can be fitted with razor blades and used for the four purposes of cutting hair, trimming it, grooming it and also for shaving pieces of hair off. I gather that the Plaintiffs have not a patent for this hair cutter. It is said to be owned by somebody else, but we are not concerned with the patent position.
The Plaintiffs have put this hair cutter into an attractive carton printed in gold and black, with a photograph on it showing the uses to which it can be put. They have advertised it in this country in publications and on television. They have spent large sums — we were told about £200,000 — in advertising. No doubt it is a very popular product, selling at 12/6d.
The Defendants are Hawkex Plastics Limited and Christopher Hawkins. They produced in September of this year or thereabouts a similar gadget which does the same things. They have put it into a little carton printed in gold and black and described it as "The Home Hair Trimmer". It cuts, shapes, trims and shaves and the carton has on it drawings showing how it is used, and the recommended price is given as 12/6d.
When the Plaintiffs saw that that was being done they issued a writ on 8th September of this year, claiming an injunction to restrain the Defendants from passing off theirproduct as the Plaintiffs'.
That matter came before the Judge in Chambers, On 15th September of this year the Judge, on reading the affidavits, granted an interim injunction "restraining the Defendants from passing off their own hair trimmer, or any other hair cutter or trimmer as and for the Plaintiffs' hair cutter, whether by means of a similar shape, appearance, get-up, container, pack or price or otherwise howsoever until the trial of this action or further order".
That injunction having been granted, the Defendants set to work to see if they could still continue in business. They decided to design a new carton and alter the mould for their hair trimmer. They have brought out a new carton. Instead of being in gold and black, it is printed in red and black. Instead of being The Home Hair Trimmer, it is called The Handy Hair Trimmer, The carton has one or two drawings on it. It has still the 12/6d. recommended price.
Soon afterwards someone from the Plaintiffs saw this new carton and trimmer on a stand in a street market in London. One of the market men displayed it with a notice (and there is no suggestion that the Defendants were responsible for this) "As on T.V. 2/6d. each" and the 12/6d. is crossed out.
The Plaintiffs took the view that this was a breach of the injunction. They applied to the Court for a writ of sequestration against the Defendants for their contempt of Court and wilfully disobeying the Court's order of 15th September, and also requesting that Mr. Hawkins, the First Defendant, should stand committed to Brixton Prison for his contempt.
That application came before Mr. Justice Cantley; the summons was taken out on 5th November, 1970. It came before Mr. Justice Cantley on 30th November. But before it came on for hearing affidavits were filed on each side. ThePlaintiffs filed their affidavit setting out the appearance of the Defendants' new red box. Mr. Christopher Hawkins, the personal Defendant, filed an affidavit — he made it on 17th November and filed it, I believe, on the 25th November — in which he said that as soon as he heard of the interim order, he immediately issued orders that no further of the offending cartons were to be distributed and that he had decided to design a new carton and alter the mould; and he submitted it to chartered patent agents, who advised him. He made a few alterations as they recommended. After making them, the patent agents told him that in their opinion the new package did not infringe the Judge's order. Mr. Hawkins said that the sales card, which was exhibited in the street market was no concern of theirs. The Defendants did not authorise it. In conclusion Mr. Hawkins said that if he was wrong he offered an apology to the Court. Also, the patent agent himself made an affidavit saying that he had been shown the order and the proposed carton, and he advised that it could safely be adopted without infringing the order.
Those affidavits were filed in the Court. After they had been filed the Plaintiffs intimated that they would like to cross-examine the Defendants upon it on the hearing of the motion. They asked for the witnesses — the people who had made the affidavits — to be in attendance at the Court ready for cross-examination if the Court gave leave.
When the case came on on 30th November, Mr. Sparrow, who appeared for the Plaintiffs, read without objection all the affidavits in the case, (but Mr. Sherrard did himself read the one by the patent agent). At all events, the affidavits were read to the Court. I think the right inference from what took place is that they were read — and in particular Mr. Hawkins' affidavit was read — with the consent of the Defendants as being, so to speak, the affidavits that wereto be placed before the Court.
At the end of the first day the anticipation, was that the cross-examination would proceed on the following day. But overnight Mr. Sherrard, who had been looking into the position, took objection to the cross-examination of Mr. Hawkings being allowed. He argued that it was in the nature of a criminal proceeding and that he should not be compelled to submit himself to cross-examination on his affidavit. In answer to this submission, Mr. Sparrow told the Judge that he did not wish to cross-examine upon the subject of the main action. On being so told, the Judge said that he would allow the cross-examination of Mr. Hawkins, Mr. Sherrard then said that he wished to appeal to this Court. So the Judge adjourned the case pending our decision. Mr. Sherrard has now come to us. I think we should give him leave to appeal.
This case raises questions of some importance. Mr. Sparrow submitted that in proceedings of this kind the Defendant can be compelled to give evidence even against himself. Mr. Sparrow pointed out that this is a case of civil contempt and not criminal. The difference is well known. A criminal contempt is one which takes place in the face of the court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the Court in a civil action.
I cannot accept Mr. Sparrow's submission. Although this is a civil contempt, it partakes of the nature of a criminal charge. The Defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Mr. Justice Cross, as he then was, in the case of Yiammi v. Yiammi (1966) Volume 1, Weekly Law Reports, page 120, so decided; and furthermore we ourselves in this Court,in the case of In re Bramblevale Limited., (1969) Volume 5, Weekly Law Reports, page 699, said that it must he proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. In this connection I quote what Lord Justice Bowen said: "It is one of the inveterate principles of English law that a party cannot he compelled to discover that which, if answered, would tend to subject him to any punishment, or forfeiture… 'no one is bound to incriminate himself'". That is reported in 1891j Probate, page 147.
This was not always the law in the case of civil contempt. In the days of Sir William Blackstone, 200 years ago, civil contempt was an exception to the general principle. In those days a Plaintiff was entitled to deliver interrogatories to the Defendant, which the Defendant was bound to answer on oath. In his...
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...v. A.S.T.B. Ltd. (1995) 6 N.W.L.R. (Pt. 404) 709……............................…..779 Comet Products U.K. Ltd v. Hawkex Plastics Ltd. (1971) 2 Q.B. 67. (1971) 1 All E.R. 1141 C.A….......................................................................................................................