7th May 2021

Peter Knox QC (instructed by Ronald Fletcher Baker LLP) for the Appellants/Respondents

Lord Justice Birss:

  1. These appeals arise from a trade mark dispute. The claimants below brought proceedings for infringement of registered trade marks and passing off. The relevant trade marks include word marks for BEVERLY HILLS POLO CLUB and devices based on horse riding polo players. The claimants can be called “Lifestyle”. There is no relevant distinction between the two claimant companies. The proceedings were brought against a group of sixteen defendants who were associated with the use of a sign SANTA MONICA POLO CLUB along with devices based on horse riding polo players. Most of the defendants were companies, but Mr Kashif Ahmed and his sister Ms Bushra Ahmed were also named as defendants (D5 and D12 respectively). They were alleged to be jointly and severally liable for the torts committed by at least two of the companies of which they were directors (D3 and D11). Each of those two companies at one time or another had traded as “Juice Corporation”. I will refer to persons found to be jointly and severally liable with another as accessories and the person with whom they are jointly liable as the principal.
  2. The matter came to a first trial in October 2017 before Mr Recorder Douglas Campbell QC sitting as a judge of the High Court. The first trial was concerned with the liability of eight of the corporate defendants including D3 and D11. The question of the accessory liability of D5 and D12 had been separated out to be addressed at a second hearing (if necessary). At the first trial the judge held that all eight defendants were liable on both grounds. There was no appeal from that first trial. Following the first trial Lifestyle elected to pursue an account of profits against D3 and D11 but those companies went into insolvent administration. There was then a second trial. The second trial addressed the accessory liability of the Ahmeds, and Lifestyle’s claim for an account of profits against them. The trial took place in February 2020 before the same judge. This appeal is from the judge’s order dated 29th May 2020 made following the second trial. In his judgment ([2020] EWHC 688 (Ch)) the judge decided that the Ahmeds were each jointly and severally liable. Lifestyle had contended that a finding of joint and several liability would mean that the accessories should be liable for the whole profits for which D11 was liable to account to Lifestyle. The judge rejected that submission as a matter of law and held that the accessories should only be liable for profits they themselves made from the wrongful acts. He decided that the sum by way of profits which Mr Ahmed had to pay to Lifestyle was £779,981.20, consisting of a loan of £635,789 and 10% of his overall salary amounting to £144,192.20. The sum Ms Ahmed had to pay was £57,007.60, which represented 10% of her salary in the period. The judge also assessed the sums which would be due if the Ahmeds were liable for the profits of D11 on the footing he was wrong on the law. Those sums would have been £3,129,921 for Mr Ahmed and £312,992 for Ms Ahmed.
  3. With the permission of the judge Lifestyle appeals the ruling on the law about whether the Ahmeds should be liable for the whole profits made by D11 or only liable for profits they themselves made.

Continue reading this judgment here


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