Louis Feraud (London) Ltd v Unico Corporation Ltd [ChD]
| Jurisdiction | England & Wales |
| Judge | Lindsay J. |
| Judgment Date | 09 October 1995 |
| Court | Chancery Division |
| Date | 09 October 1995 |
Chancery Division
Lindsay J.
John Brisby (instructed by Deborah Mills & Associates) for the plaintiffs.
Samuellaughton (instructed by Trumans) for the defendant.
The following cases were referred to in the judgment:
Bankers Trust Co v ShapiraWLR [1980] 1 WLR 1274.
British Steel Corp v Granada Television LtdELR [1981] AC 1096.
Goodwin, ReUNK [1990] 1 All ER 608.
Mercedes-Benz AG v Leiduck [1995] CLC 1,090; [1996] 1 AC 284.
Norwich Pharmacal Co v C &E CommrsELR [1974] AC 133.
Contract — Breach — Discovery — Application for Norwich Pharmacal relief — Suppliers authorised by licensed wholesalers — Defendant selling large amount of Louis Feraud garments without authorisation — Defendant's supplier unknown to plaintiffs — Loss of customers by plaintiffs — Writ alleging no cause of action against defendant — Disclosure of supplier sole relief sought by writ — Notice of motion seeking same relief — Whether Norwich Pharmacal relief should be granted at interlocutory stage.
This was a plaintiffs' application for Norwich Pharmacal relief ordering the disclosure of the name and whereabouts of the defendant's supplier of garments bearing the trade mark of Louis Feraud.
The plaintiffs were the only companies licensed to manufacture, sell and distribute clothes under the Louis Feraud trademark. The licenses allowed each plaintiff to trade in a prescribed area in Western Europe and supply Louis Feraud garments to retailers which were to be sold by retail sale from approved premises. Surplus stock was sold by the plaintiffs in different ways. The first plaintiff sold it directly through two approved concession shops. The second defendant sold it to jobbers, on the condition that it was sold outside the plaintiffs' prescribed areas and that it was sold to subsequent customers on the condition that it was not to be reimported. The third defendant sold it to clearance centres which sold direct to the public.
Despite the controls on the selling of stock and surplus stock the plaintiffs discovered that since late 1993 large volumes of genuine Louis Feraud garments were being sold by the defendant, an unauthorised retailer, at substantially discounted prices. The plaintiffs claimed that the defendant could not be supplied with Louis Feraud garments without there being an actionable breach of contract, and issued a writ for Norwich Pharmacal relief that the defendant disclose the names and addresses of its suppliers. No wrong of any kind on the defendant's part was alleged in the writ. The following day the plaintiffs issued a notice of motion for substantially the same relief. The issue was whether Norwich Pharmacal relief should be granted at the interlocutory stage.
Held, dismissing the application:
1. If the order were granted it would make further conduct of the action nugatory because once the information had been disclosed it could not effectively be returned. Therefore it was not appropriate to grant interlocutory relief which was limited to relief of a temporary kind.
2. The plaintiffs had not shown on the evidence that the application was urgent, or that without the court's assistance a clear injustice would go without remedy or that all the alternative methods of tracing the suppliers had been exhausted.
3. There was insufficient evidence, for the purposes of the granting of relief which was of a final and irreversible character, that some breach of contract was or had been inherent in the supply of Louis Feraud garments to the defendant. Accordingly it was not appropriate to grant the relief sought.
Lindsay J: I have before me a notice of motion of 13 September in which three plaintiffs as applicants seek relief against Unico Corporation Ltd, the respondent, which is the sole defendant to the writ issued by the three plaintiffs on 11 September 1995. The writ asks only for the following relief:
“(1) An order that the defendant do disclose upon oath the name and address of each source of its supply of Louis Feraud garments and full particulars of the said supplies (including all dates and quantities concerned.)
(2) An order for discovery upon oath by the defendant of all documents relating to such supplies.
(3) Costs.
(4) Such further or other relief as may seem appropriate.”
It is important to notice that no wrong of any kind on the defendant's part is alleged by the plaintiffs. The relief there sought is and is only of the kind that was explained as a revival of the Chancery bill of discovery in Norwich Pharmacal Co v C & E CommrsELR[1974] AC 133. I am not told when the writ was served although it was, it seems, before 20 September. But as yet there has been no statement of claim, nor, of course, any defence.
The notice of motion of the three plaintiffs asks for the following relief: for an order that the defendant by its company secretary or other proper officer make and serve upon the plaintiffs' solicitors within seven days of such order an affidavit setting out the name and address of every company, firm or person who has supplied it with Louis Feraud garments and providing full particulars of each such supply including the date of each supply, the quantities and type of garments supplied and the price paid in respect of the same, exhibiting thereto copies of all documents relating to each such supply and for such order as to costs and so on.
It will at once be seen that the relief sought in the notice of motion would, if granted, make further conduct of the action effectively nugatory. This leads to a procedural or technical consideration to which I will need to revert but I will first explain something of the background to the application.
The trademark label “Louis Feraud” is applied to a range of exclusive designer ladies” wear, items from which (as the plaintiffs say, in breach of contract) have been found to be on sale by the defendant in England at substantially discounted prices. On the plaintiffs' side I have evidence as to six companies concerned in various ways or in various areas in relation to such clothes. The clothes are designed by Feraud AC Societe Anonyme (or perhaps SNC), incorporated in France, (which I shall call “the designer”). The designer is not party to these proceedings. The clothes are manufactured by Fink Modelle GmbH, a German corporation (which I shall call “Fink”). Fink and the designer are not related companies save that a substantial shareholder in the designer is also a substantial shareholder in Fink. Fink is not a party to these proceedings.
Fink has, as three wholly owned subsidiaries, the three plaintiffs, namely Louis Feraud (London) Ltd (which I shall call “London”), Louis Feraud (GmbH) (which I shall call “GmbH”) and Louis Feraud (International) SARL (which I shall call “SARL”). Another wholly owned subsidiary of Fink, Louis Feraud Inc (which I shall call “Inc”), incorporated in Delaware, sells Louis Feraud goods in the US and Canada.
The designer owns the Louis Feraud trademark and has entered into licence agreements with each of London, GmbH, SARL and Inc which are described as sole licences in relation to the particular respective areas therein specified. Thus to London is given the sole licence in respect, inter alia, of the UK; to GmbH, that for, inter alia, the Federal Republic of Germany including, as the agreement was made in 1983, West Berlin, and so on. Whether there has been some fresh agreement upon the unification of Germany I am not told.
The sole licence is, to take London's case an example, as follows:
“The exclusive right to manufacture or to have manufactured, advertise for, promote, sell, distribute and otherwise market women's ready to wear items under the Louis Feraud trademark and/or have said items manufactured and distributed.”
The licensee, again taking London as an example:
“Undertakes to the designer to sell the goods only either on a wholesale basis or by retail in approved specified concession shops.”
The evidence, which is all on the plaintiffs” part — nothing having yet come from the defendant — is principally concerned with sale and distribution. Whilst I am told “Fink manufactures the garments” I know nothing of any arrangements between Fink and the designer. I cannot say whether Fink has bound itself to the designer to sell Louis Feraud goods it has manufactured only in particular areas or to particular customers. I know nothing of any arrangements between Fink and any of the plaintiffs such as, for example, to have procured that Fink was to manufacture Louis Feraud goods as and only as agent of any particular plaintiff or to sell Louis Feraud goods it has manufactured only to particular persons or in specified areas.
To revert to sale and distribution, London (taking it as an example) sells Louis Feraud goods within its prescribed area on standard terms to retailers and those terms include as condition 1(c) as follows:
“No goods supplied by the...
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