The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors

Factual and Procedural Background

The appeal concerns allegations of passing off by the Appellant, a trade body representing removers and storers ("NGRS"), against the First Respondent, a removal and storage company ("BM"), and its directors. BM was a member of NGRS from April 2006 until June 2010. After termination of membership, advertisements on a third-party website ("Really Moving") continued to describe BM as a member of NGRS. The Appellant alleged that this constituted passing off and that BM, along with its directors, were jointly liable.

The dispute focuses on a directory page on the Really Moving website where the misrepresentation appeared, despite BM’s membership having ended. BM asserted that it had removed references to NGRS from pages it controlled on the website prior to membership termination and denied knowledge or responsibility for the directory page content. The trial judge found that BM and its directors neither knew of nor intended the misrepresentation on the directory page and accepted the oral evidence of BM’s director denying knowledge of that page.

The Appellant sought to introduce fresh evidence to challenge the credibility of BM’s director and to establish knowledge of the directory page, which the court considered on appeal.

Legal Issues Presented

1. Whether the trial judge erred in finding that BM was not responsible for the misrepresentation on the directory page of the Really Moving website because BM lacked knowledge and intent regarding that content.
2. Whether the trial judge erred in accepting the oral evidence of BM’s director denying knowledge of the directory page despite alleged contradictory written evidence, and whether fresh evidence undermining his credibility should be admitted.

Arguments of the Parties

Appellant's Arguments

• BM should be liable in passing off for the misrepresentation on the directory page because the offending text originated from BM’s profile information provided to the website for advertising purposes.
• Passing off is a strict liability tort; therefore, knowledge or intention to misrepresent is not required for liability.
• The trial judge erred in requiring knowledge or intent on the part of BM to display the advertisement on the particular webpage.
• The fresh evidence consisting of archived webpages contradicts BM’s director’s evidence that he removed the offending phrase from pages to which he had access, undermining his credibility.

Respondents' Arguments

• BM and its directors had no knowledge of the directory page and did not place or authorise the offending text on it.
• The misrepresentation resulted from a website technical issue ("web crash") causing replication of outdated content without BM’s consent or knowledge.
• BM had removed references to NGRS from the pages it controlled before membership termination.
• The fresh evidence was not sufficiently relevant or credible, could have been obtained earlier, and would not have affected the trial judge’s assessment of credibility.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified two central issues: responsibility for the misrepresentation on the directory page and the credibility of BM’s director’s denial of knowledge of that page. The court carefully examined the pleadings and evidence, noting that no allegation of agency, authorisation, or procuring of the misrepresentation by BM was pleaded, which was crucial to establishing liability.

The court accepted the trial judge’s factual findings that BM and its directors did not know of the directory page and did not intend the misrepresentation. The court found that the misrepresentation was made by an independent third party (the website operator) without BM’s consent or knowledge. Uploading information for advertising purposes without knowledge of additional inaccessible webpages containing outdated content did not amount to “making” the misrepresentation.

The court also addressed the application to admit fresh evidence. Applying established principles, it found that the evidence could have been obtained with reasonable diligence before trial, was not clearly credible or conclusive, and would have caused significant delay and cost if admitted. The court therefore declined to admit the fresh evidence and upheld the trial judge’s acceptance of BM’s director’s oral evidence.

Regarding the legal nature of passing off, the court emphasized that liability requires that the defendant “made” the misrepresentation, which in this context means authorisation or agency. Knowledge or intention relates to the misrepresentation itself, not to the act of making it. The court rejected the Appellant’s submission that BM was strictly liable merely because the offending text originated from its profile information.

Holding and Implications

The appeal is dismissed.

The court upheld the trial judge’s findings that BM and its directors were not responsible for the misrepresentation on the directory page of the Really Moving website due to lack of knowledge, intention, and absence of agency or consent. The court refused to admit fresh evidence challenging the credibility of BM’s director. The direct effect is that BM and its directors are not liable for passing off in relation to the misrepresentation on the directory page. No new precedent was established; the decision reaffirms the importance of pleading agency or authorisation in passing off claims involving third-party publication and the cautious approach to admitting fresh evidence on appeal to preserve finality of litigation.