R Robert Griffin (Claimant) Richmond Magistrates' Court (Defendant) The Department of Business Enterprise and Regulatory Reform Interested Party
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jack,Lord Justice Dyson,MR JUSTICE CRANSTON |
| Judgment Date | 19 November 2008 |
| Neutral Citation | [2008] EWHC 84 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9223/2008,Case No: CO/8918/2007 |
| Date | 19 November 2008 |
[2008] EWHC 84 (Awdmin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE DYSON and
MR JUSTICE JACK
Case No: CO/8918/2007
Andrew Trollope Qc & Henry Hughes (instructed By Butcher Burns) For The Claimant
Paul Ozin For The Interested Party
Hearing date: 12 December 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
1. On 2 August 2007 before District Judge Day sitting in the Richmond Magistrates Court the claimant, Robert Griffin, was found guilty of two offences under the Insolvency Act 1986 and was acquitted of a third offence. The prosecution had been brought by the Department of Business Enterprise and Regulatory Reform. On 19 September the District Judge refused Mr Griffin's request to state a case for this court on the ground that the request was frivolous. The issue which it is sought to rise by way of the case stated is whether there was evidence on which the District Judge was entitled to find that the two offences were made out. Mr Griffin called no evidence before the District Judge. We intend to adopt the approach which is in effect suggested by Simon Brown LJ in Sun World Ltd v Hammersmith & Fulham London Borough Co [2007] 1 WLR 2102, namely to decide whether or not there was evidence which entitled the District Judge to determine as he did.
2. The facts giving rise to the proceedings against Mr Griffin relate to two companies, both of which were set up by Mr Griffin to trade in bottled fruit juices. The first is Saxon Drinks Limited. The company traded using the name ‘Saxon 1050’ for its products. This was a trade mark which belonged to Mr Griffin and a second person. Mr Griffin was appointed a director and company secretary on 15 July 2001. The company got into financial difficulty. On 30 March 2004 resolutions were passed to put the company into liquidation. It was insolvent. On 4 March 2004 the second company, Brand Central Limited, was incorporated. Mr Griffin was appointed company secretary and a director. It was incorporated to carry on business in at least much the same field as Saxon Drinks Ltd. I will refer to the companies as 'Saxon Drinks' and 'Brand Central'.
3. The offences of which Mr Griffin was convicted were these. The first was a charge of being concerned in the management of a company under a prohibited name, contrary to section 216 of the Insolvency Act. The charge read:
‘Between 3 March 2004 and 6 June 2006 being a person to whom Section 216 of the Insolvency Act 1986 applied, acted in contravention of Section 216(3) of the Act in that he was the director of a company known by the prohibited name Brand Central Ltd trading as Saxon 1050 without the leave of the court.’
4. The second was a charge of failing to deliver up books and papers of Saxon Drinks, contrary to Section 208 of the Act. The charge read:
‘Between 10 March 2004 and 6 June 2006 being an officer of Saxon Drinks Ltd, a company which was being wound up, did not deliver up to the liquidator all books and papers belonging to the company which were in his custody or under his control and which he was required by law to deliver up.’
5. I will take the case under section 216 first. The relevant parts of the section provide:
216 (1) This section applies to a person where a company (‘the liquidating company’) has gone into insolvent liquidation on or after the appointed day and he was a director or shadow director of the company at any time in the period of 12 months ending with the day before it went into liquidation.
(2) For the purposes of this section, a name is a prohibited name in relation to such a person if –
(a) it is a name by which the liquidating company was known at any time in that period of 12 months, or
(b) it is a name which is so similar to a name falling within paragraph (a) as to suggest an association with that company.
(3) Except with leave of the court or in such circumstances as may be prescribed, a person to whom this section applies shall not at any time in the period of 5 years beginning with the day on which the liquidating company went into liquidation –
(a) be a director of any other company that is known by a prohibited name, or
(b) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of any such company, or
(c) in any way, whether directly or indirectly, be concerned or take part in the carrying on of a business carried on (otherwise than by a company) under a prohibited name.
(4) If a person acts in contravention of this section, he is liable to imprisonment or a fine, or both.
(5) ……..
(6) References in this section, in relation to any time, to a name by which a company is known are to the name of the company at that time or to any name under which the company carries on business at that time.
(7) …..
(8) ……
6. The case of the Department was that Brand Central had traded as Saxon 1050 and that this was a prohibited name because it was a name so similar to the name of Saxon Drinks that it suggested an association with Saxon Drinks. It was accepted by Mr Andrew Trollope Q.C., and rightly accepted, that, if Brand Central did trade as Saxon 1050, the offence by Mr Griffin would have been made out.
7. The judgment given by the District Judge was quite short and did not go into any detail. It would have been better if he had expressed his reasons for convicting Mr Griffin on the two offences more clearly. He found that Mr Griffin was concerned in the management of Brand Central. No complaint is made about that. He then stated:
'That Saxon 1050 is a trademark is neither here nor there – I have been shown business stationary from 2004, post liquidation of Saxon Drinks.
This was a small company, Mr Griffin was clearly the brains and the driving force of the enterprise. I find it inconceivable that he should not know of the activities of his company. Indeed, he has not given any evidence to that effect.
It does not matter whether it made good commercial sense or not to use the name Saxon 1050 or that there was only one instance of its use tendered in evidence. Brand Central Limited variously described itself as ‘T/A Saxon 1050’ or used the term ‘Saxon 1050 is part of Brand Central Limited’.
Both businesses were engaged in the premium fruit juice market and the similarities of name are so great that I find Mr Griffin guilty of the offence contrary to Section 216(4).’
8. In the forefront of the evidence before the District Judge was a document headed 'SAXON 1050 ORDER FORM which at its base stated 'Saxon 1050 is part of Brand Central Limited'. The document is undated. It related to an order placed with Saxon Drinks, which had been taken over by Brand Central. The associated invoice is dated 23 April 2004. The invoice was headed with the name Brand Central Limited, but under it was written 'T/A Saxon 1050', demonstrating that Saxon 1050 was the trade name of Brand Central. Mr Trollope submitted that these two documents were not by themselves sufficient to show that Brand Central traded as Saxon 1050. In my view, they do not appear to be individual in their form but to represent the standard documents which Brand Central had had created for its use. Further, the items sold are all described as Saxon 1050, for example, 'Saxon 1050 Pure Apple'. It would have been possible for Mr Griffin to have given evidence that these documents were not typical and that it was wrong to draw the obvious inference from them that Brand Central was trading as Saxon 1050. But he did not. The judge was plainly right to infer, as we deduce he did, that those forms of documents were used generally. The use of these documents occurred in the context that the same marketing consultants who had been acting for Saxon Drinks switched to Brand Central, that the brand name, Saxon 1050, was the same, and that the web site for Brand Central gave e-mail addresses containing Saxon 1050 but not Brand Central and gave the address as 'Saxon 1050, Suite 116, 8 Shepherd Market'.
9. Mr Trollope submitted that in accordance with the judgment of Mummery LJ in Ricketts v Ad Valorem Factors Limited [2003] EWCA Civ 1706 at paragraph 22 it was necessary for the judge 'to make a comparison of the names of the two companies in the context of all the circumstances in which they were actually used or likely to be used: the types of products dealt in, the locations of the business, the types of customers dealing with the companies and those involved in the operation of the two companies in order to decide whether the similarity of names suggested an association between the companies. However, there was here a very close association of names; the products that the companies traded in were in each case high quality fruit juices; the companies had different addresses but both were in central London; Mr Griffin was the driving force behind each. All that was established by the evidence. No more detailed comparison was necessary in order to decide that the use by Brand Central of the name, Saxon 1050, suggested an association with Saxon Drinks. The judge was fully entitled to find that the offence was proved.
10. I turn to the offence under section 208. The relevant subsection as to the offence is (1)(c). The section has the side note 'Misconduct in the course of winding up'. It provides:
208 (1) When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company, commits an offence if he –
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