Hayman-Joyce Property Ltd v Hayman-Joyce Broadway LLP
| Jurisdiction | England & Wales |
| Judge | Miss Recorder Amanda Michaels |
| Judgment Date | 02 May 2023 |
| Neutral Citation | [2023] EWHC 1028 (IPEC) |
| Docket Number | Claim No: IP-2022-000006 |
| Court | Intellectual Property Enterprise Court |
[2023] EWHC 1028 (IPEC)
RECORDER Amanda Michaels
Claim No: IP-2022-000006
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (Ch)
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Victoria Jones (instructed by Temple Bright LLP) for the Claimant
Georgina Messenger (instructed by Hughes Paddison) for the Defendants
Hearing dates: 7 and 8 February 2023
APPROVED JUDGMENT
This judgment was handed down by the Court remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 2 May 2023.
This case arises from a dispute between two firms of Cotswolds estate agents about use of the name “Hayman-Joyce.” The firms previously worked together, but have fallen out, and in this claim the Claimant alleges infringement of its trade mark and passing off. This judgment relates to the trial of liability only.
Background
In 1991 James Hayman-Joyce FRICS set up an estate agency in Moreton-in-Marsh in the Cotswolds, which traded as “Hayman-Joyce” and provided a full range of estate agency services: residential and commercial sales, lettings and valuations. He was the sole proprietor of that business. He provided his services in Moreton and the surrounding area.
In March 1996, James Hayman-Joyce entered into an agreement with a business called Mayfair Office Ltd, enabling him to market properties from its London office and expand his clientele for sales and lettings geographically. A map forming part of the agreement showed the areas in which the Mayfair Office was to act on behalf of Hayman-Joyce, extending over a roughly oval area around Moreton, as far as Chipping Norton to the east, to the north of Chipping Camden, and on the west not far from Evesham and Cheltenham. The Claimant's position was that the area shown on the map represented only part of the area in which the business then operated, as the Mayfair Office had similar arrangements with other agents in adjoining areas. In the circumstances, quite how wide an area was covered by the business in those early years was a matter of some contention, but it certainly extended for some distance (the Claimant said, some 25 miles) around Moreton-in-Marsh. Certainly, the Defendants accepted that Hayman-Joyce had marketed some properties in and around the village of Broadway, around 8 miles to the west of Moreton-in-Marsh, between 1992 and 1997. The name used for the business was at all times HAYMAN-JOYCE, presented in upper case letters and on a dark red background.
In 1997, James Hayman-Joyce decided to open a second Hayman-Joyce office in Broadway. He was acquainted with Charles Comber (the Second Defendant) who was then employed at Knight Frank's Stratford-upon-Avon office, which covered the North Cotswolds and wider Midlands. He made an offer to Mr Comber to join the new Broadway office: initially he was to be its manager, but they agreed that if the business did well over a 12 month trial period, Mr Comber would be offered a partnership. Mr Comber joined the new office in about May 1997 on that basis, whilst James Hayman-Joyce continued to work primarily from the Moreton office. It seems that the Broadway office did well, and they agreed to enter into a formal partnership. A Deed of Partnership (“the Partnership Agreement”) was executed in January 1999, and the commencement date of the partnership was stated to be 1 May 1998. A map annexed to the Deed showed two roughly equally-sized kidney-shaped areas of the Cotswolds, the “Moreton Patch” and the “Broadway Patch,” in which the two businesses were stated to have exclusive rights. Both parties were permitted to trade in any other area (“No Man's Land”). It was the Claimant's case that by the Partnership Agreement the Broadway office was granted an implied licence to use the Hayman-Joyce name in the areas permitted and that the licence continued until terminated by the Claimant in early 2021. The Defendants asserted that the Agreement assigned rights in the name to the partnership and that the Broadway business had its own goodwill in the name. I consider the terms of the Partnership Agreement further below.
The Broadway office and the Moreton office traded in parallel for many years, both using the Hayman-Joyce name, sharing business overheads and back-office functions where possible and co-operating on matters including branding and marketing. They also both used a single website with a domain name, www.haymanjoyce.co.uk, which was registered by James Hayman-Joyce on 1 December 1997. The offices were, however, financially independent throughout.
A further Hayman-Joyce office was opened in Winchcome in about 2003, to undertake residential sales in that area of the Cotswolds. Mr Comber's evidence was that this was also a partnership venture between himself and James Hayman-Joyce, together (initially) with a third gentleman, Mr Gavin Wallace. Mr John Yarnold was the manager of that business between 2006 and 2008, when it was wound up.
In 2010, the parties were advised that it would make sense to operate both businesses through a limited liability partnership structure. This led to the incorporation of two LLPs, both on 11 June 2010.
Hayman-Joyce Moreton LLP (“the Moreton LLP”) was incorporated to take over the Moreton business and the original members were James Hayman-Joyce, his wife Charlotte, and his service company. It seems that there was no formal assignment of the goodwill in the Moreton business to the LLP. Thomas Hayman-Joyce, who is James and Charlotte's son, is a member of the RICS and had been in the real estate business since 2003; he had worked for both Winkworths and Savills in London. In June 2010, he started working full-time for the Moreton business. He became a member of the Moreton LLP in August 2010. John Yarnold, who had taken a job at the Moreton office after the Winchcombe office closed, also became a member of the LLP at that point, but retired in 2015. Mr Yarnold's evidence was that he has always just been an employee of the Moreton business.
Similarly, in June 2010, the First Defendant, Hayman-Joyce Broadway LLP, was incorporated and its members were James Hayman-Joyce and Mr Comber and their respective service companies. The shares were held 70% to Mr Comber and his company, and 30% to James Hayman-Joyce and his company.
Mr Comber's evidence was that in August 2010, following the incorporation of the First Defendant, the original Broadway partnership was dissolved. I think that the fact of dissolution at that time was common ground, but there was no document formally recording the dissolution of the partnership, nor does it appear that any express oral agreement about the dissolution was reached between James Hayman-Joyce and Mr Comber. On the contrary, it appears they tried for a considerable period after August 2010 to negotiate the terms of a partnership agreement for the First Defendant. In the meantime Mr Comber thought that the terms of the Partnership Agreement continued to apply, despite the incorporation of the LLPs, but this does not ever seem to have been agreed, although both sides acted as if the LLPs were bound at least by the geographical restrictions in the Agreement.
Various post-2010 draft agreements were in evidence before me. At least one of these, from 2012, provided that the original Partnership Agreement was to remain in force, save as varied by the new LLP agreement, and James Hayman-Joyce raised with Mr Comber his concerns about what was to happen upon dissolution, including as to the Hayman-Joyce name. However, no agreement was reached. Perhaps as a result, there was never a formal assignment of any goodwill owned by the Partnership to the First Defendant.
The Claimant company was incorporated on 12 August 2014, initially under the name Tom Hayman-Joyce Limited. It changed its name to Hayman-Joyce Property Limited on 12 January 2015. Thomas Hayman-Joyce has been its sole director throughout and owns the shares in the business with his wife, Amy. The business and goodwill of the Moreton LLP was apparently sold and transferred to the Claimant company in 2014 or 2015. Again, so far as I understand it, there was no formal documentation evidencing the assignment, but there is no dispute that the goodwill must have been transferred with the business. After the Claimant took over the Moreton LLP's business, James Hayman-Joyce remained as a consultant to the Claimant's Moreton business, combining that role with his position as a partner in the First Defendant until early 2022.
At some point after the structural and personnel changes in 2010, the relations between the two businesses and the parties began to deteriorate. I do not need to establish when the strains began to appear, nor why they did so, but it is notable that no agreement was reached in 2012 for the Broadway LLP, and it appears that disagreements arose both between James Hayman-Joyce and Mr Comber, and between Thomas Hayman-Joyce and Mr Comber. For instance, in 2015 Mr Comber took legal advice at least about the First Defendant's entitlement to the income on commercial sales, and discussed that advice with the others. It seems that both Thomas and James Hayman-Joyce disagreed with the advice he had been given.
By 2018 Thomas Hayman-Joyce and Mr Comber disagreed (amongst other things) about the ownership and use of the Hayman-Joyce name, and each party's right to trade under the Hayman-Joyce name in the Broadway Patch. This put James Hayman-Joyce in a difficult position as he remained a partner in the...
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