Zuma's Choice Pet Products Ltd and Another v Azumi Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Patten |
| Judgment Date | 14 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2133 |
| Docket Number | Case No: A3 2017 0227 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2017 |
[2017] EWCA Civ 2133
Lord Justice Patten
and
Lord Justice Floyd
Case No: A3 2017 0227
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Mr Recorder Campbell QC
[2017] EWHC 45 (IPEC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Vanderbilt in person
Mr Simon Malynicz QC and Ms Georgina Messenger (instructed by Gowling WLG) for the Respondents
Hearing date: 21 November 2017
Judgment Approved
This is an appeal from the decision of Recorder Campbell QC not to recuse himself from hearing an application in the Intellectual Property Enterprise Court ("the IPEC") for summary judgment in a group of actions involving allegations of trade mark infringement and groundless threats of trade mark proceedings. The appellant, Ms Zoe Vanderbilt, who is the defendant in the infringement proceedings and the claimant in the groundless threats proceedings, contends that the Recorder should have recused himself because he was a practising barrister in the same chambers as counsel for the respondents. She also complains that a "private and confidential" letter which she alleges was wrongly included in the bundles before the court created a situation in which a perception of apparent bias was inevitable.
On the appeal Ms Vanderbilt represented herself, assisted by a McKenzie friend. The respondents were represented by Mr Simon Malynicz QC and Ms Georgina Messenger.
The factual chronology
On 9 June 2015 Azumi Limited, which runs a number of Japanese restaurants in cities around the world, including one in Knightsbridge in London, commenced proceedings against Ms Vanderbilt and her company, Zuma's Choice Pet Products Limited (ZCPP), ("the trade mark action"). The conflict arose because Azumi's restaurants are named "ZUMA", and it was alleged that ZCPP were selling and offering for sale pet food products under and by reference to the signs "DINE IN WITH ZUMA" and "ZUMA". Ms Vanderbilt counterclaimed in the trade mark action for groundless threats of trade mark proceedings. She also brought two further actions for groundless threats, on 17 June 2015 and 31 July 2015 respectively, against various parties, including Azumi and its trade mark attorneys ("the groundless threats actions").
The application which ultimately came before Recorder Campbell QC was launched on 10 October 2016, and sought summary judgment in favour of Ms Vanderbilt in all three actions on the issue of groundless threats. The application was first considered on the papers by HHJ Hacon, who dismissed it by his order of 18 October 2016 with no order as to costs. He considered that, in each of the cases, a defence of justification had a sufficient prospect of success for it to be determined at the trial.
What followed was something of a procedural muddle. Ms Vanderbilt sought to appeal the order of HHJ Hacon of 18 October to this court, but it was pointed out in a letter of 16 November 2016 from the Court of Appeal office that she enjoyed a right of renewal to an oral hearing in the High Court, and that she should pursue that avenue before launching an appeal to the Court of Appeal. As was pointed out in R (on the application of MD Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 194; [2012] 1 WLR 2422, where a right to renew at an oral hearing exists, it is recognised that that right should first be exercised before seeking permission to appeal, absent some special circumstances.
Accordingly on 22 November 2016 Ms Vanderbilt issued a further application before the IPEC renewing her application for summary judgment to an oral hearing. It appears that this application was initially sent to the Court of Appeal by the IPEC. Ms Vanderbilt was notified of this on 24 November and she immediately objected that her application was not an appeal, but the oral renewal application which the Court of Appeal office had indicated was the appropriate procedural step. On 13 December 2016 the Court of Appeal office wrote to the IPEC referring to its previous direction of 16 November 2016 and returning the papers, but they did not reach the IPEC immediately. There was accordingly some unfortunate delay whilst Ms Vanderbilt's renewal application papers were returned from the Court of Appeal to the IPEC for which neither Ms Vanderbilt nor the respondents were responsible.
On 6 January 2017 HHJ Hacon received a letter or witness statement from Ms Vanderbilt dated the previous day ("the 5 January statement") containing allegations in connection with the handling of the case against Mr Malynicz QC (leading counsel for Azumi), Mr Sevier (the solicitor at Gowling WLG with the conduct of the case for Azumi and the trade mark attorney defendants) and Mr Wilcox, who is the clerk to HHJ Hacon at the IPEC. The 5 January statement had been sent to the judge in an envelope marked "Private and Confidential".
I should say straight away that, as all practitioners know, it is improper for a litigant to attempt to correspond with the court on a "private and confidential" basis. Communications having any relevance to a case being conducted inter partes need to be sent to the other side no later than the time when they are sent to the judge. Unless there are special reasons to do so, and there were none here, the court does not take any step adverse to a party without allowing that party the opportunity to be heard. If it is possible to do so, a judge who receives such a communication should return it unread, explaining shortly to the litigant the impropriety of sending unilateral correspondence. That, of course, may not always be possible.
In the present case HHJ Hacon did read the material he was sent by Ms Vanderbilt in the 5 January statement. He decided in the first instance not to send the 5 January statement to the respondents. Instead he took the course of preparing what was obviously a carefully considered note dated 10 January 2017 ("the Judge's Note") which was sent to Ms Vanderbilt, and to the respondents. In the Judge's Note he was able to deal with and dismiss the complaints made by Ms Vanderbilt without calling for comment by the respondents. The Judge's Note stated:
"Having carefully read Ms Vanderbilt's witness statement I can see no basis whatever for any wrongdoing either by my clerk, Mr Sevier or Mr Malynicz."
HHJ Hacon said that he would have left the matter there were it not for the fact that Ms Vanderbilt was a litigant in person who he believed had not correctly understood the procedural steps which had occurred. It is now clear that the judge took that course because all Ms Vanderbilt's complaints were based on various procedural steps which had been taken by the court or the respondents to which Ms Vanderbilt attributed the most sinister motives. He went on to seek to set Ms Vanderbilt's mind at rest concerning those steps and the progress of her summary judgment applications. Having done so, he directed that those applications should come on before a different judge "pursuant to the direction of the Court of Appeal". (In fact the Court of Appeal office had simply directed that the matter should be dealt with in the High Court: it had not specified that a judge other than HHJ Hacon should hear it.) The Judge's Note also indicated that, as HHJ Melissa Clarke would be hearing the trial of the action, he would ask his clerk whether it was possible for the application to come before her. He asked the parties to liaise with his clerk to arrange a suitable date, whether before HHJ Clarke or another judge. He concluded:
"Particularly bearing in mind that Ms Vanderbilt sent the 5 January Statement in confidence, I intend to make no further comment about it. I have no doubt that I should not take any further steps in response to it."
In accordance with HHJ Hacon's direction in his Note, the applications were listed for 16 January 2017 at 2 pm before Recorder Campbell QC.
Ms Vanderbilt did not agree with the direction that the matter be listed before Recorder Campbell, and embarked on correspondence with the court in which she objected to this direction. She did not rely at this stage on any allegation of apparent bias, because she had not yet become aware of the matters on which she chose subsequently to rely. Instead she argued (a) that the applications should be heard by HHJ Hacon because he was familiar with the matter, and (b) that the Court of Appeal office had indicated to her that the oral renewal should be by a judge of co-ordinate jurisdiction which included HHJ Hacon but not, in her (incorrect) view, a recorder. HHJ Hacon communicated via his clerk that he did not accept these objections and directed the hearing to go ahead. This led to further allegations being made against Mr Wilcox, resulting in a direction that, in future dealings with Ms Vanderbilt, Mr Wilcox should be replaced by his line manager. Ms Vanderbilt also made repeated requests for a meeting to be arranged between her and HHJ Hacon "without notice". Not surprisingly, it was explained to her that a private meeting with a judge was not a possibility and that the hearing before Recorder Campbell would go ahead.
On 9 January 2017 Ms Vanderbilt wrote to Mr Witts and Mr Harris, respectively the Chairman and a partner of the respondents' solicitors, Gowling WLG, repeating the allegations of serious misconduct against the same three individuals ("the Gowling letter"). The Gowling letter was marked "private and confidential", but headed in the three actions the subject of the dispute with Azumi. Ms Vanderbilt has explained that the allegations contained in the Gowling letter were in all...
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