The cross-appeal
Liability of the Defendants in relation to the ALS Website 42.By way of a starting point to his argument, Mr St Quintin said that the only possible route to liability was by the Defendants having acted in a common design. The District Judge’s finding that there had been such a common design must have been a reference to a common design with Jazzbones, the company paid to maintain the ALS Website. Mr St Quintin underlined that the District Judge had found that the Defendants did not themselves make the changes to the ALS Website which resulted in the misrepresentation and did not know it was there. He argued that because of their ignorance, none of the Defendants could be held jointly liable, within the law as explained by the Supreme Court in Fish & Fish Ltd v Sea Shepherd UK [2015] UKSC 10; [2015] A.C. 1229. 43.I disagree with Mr St Quintin’s starting point. Unlike the Reallymoving Website, the ALS Website was part and parcel of ALS’s business. The misrepresentation on its website came about because of some event – plausibly, the District Judge found, a server problem. The appearance of the misrepresentation on ALS’s website was the product of an act under the direct control of ALS, in that ALS had the direct power to prevent it or to reverse it once it had happened. ALS was accordingly liable for the passing off stemming from that misrepresentation. 44.The District Judge found that ALS had no knowledge of the misrepresentation until April 2013. But neither a defendant’s knowledge of his act nor his knowledge that the act has resulted in a misrepresentation is a necessary ingredient of passing off. Of course, only in unusual circumstances will a defendant be unaware at least of his act. 45.ALS’s ignorance of the reference to NGRS on its website may potentially have given rise to a plea of innocent passing off which, had it been successful, may have had an effect on damages. The law on innocent misrepresentation, such as it is, is helpfully discussed by Professor Wadlow in The Law of Passing Off, 5th Ed., at 9-76 to 9-80. Innocence was neither pleaded nor argued in the present case. 46.In my view the District Judge was justified in holding that ALS was liable for passing off by means of the ALS Website. Liability of Mr and Mrs Luckes as joint tortfeasors 47.At [50]-[52] the District Judge considered the question of the joint liability of Mr and Mrs Luckes for passing off because of the misrepresentation on the ALS Website. She applied the principles set out by the Court of Appeal in MCA v Charley Records [2001] EWCA Civ 1441; [2002] F.S.R. 26, noted that Mr and Mrs Luckes were the sole directors and members of ALS, found that their involvement in managing the ALS website went beyond performing the constitutional functions of directors and held that they were jointly liable with ALS. 48.Mr St Quintin argued that the District Judge had treated the law as stated in MCA on the joint liability of directors as being distinct from the law on joint tortfeasance discussed in Fish & Fish. That is possible. 49.Relying on Fish & Fish, Mr St Quintin argued that Mr and Mrs Luckes could not be liable as joint tortfeasors in respect of an act about which they knew nothing. 50.I agree. Although MCA was not mentioned in Fish & Fish, it is apparent from the judgments of their Lordships that they were explaining in a general manner the law on the liability of one party for the torts of another outside the fields of vicarious liability and agency. They were not dealing with just a part of it, excluding the liability of officers of a company for the torts of that company. Indeed, as appears from the discussion of the law by Chadwick LJ (with whom Tuckey and Simon Brown LJJ agreed) in MCA, he was covering similar ground when he went through the case law. Chadwick LJ did not suggest that the liability of a director of a company for the torts of that company depended on principles of law different from the general principles of joint tortfeasance. 51.It follows that the law on joint tortfeasance to be applied in the present case is, first and foremost anyway, that which has been stated in Fish & Fish. I see no inconsistency between what was said in Fish & Fish and the judgment in MCA, although there is an aspect of the law highlighted in Fish & Fish which is relevant to this appeal. 52.In Vertical Leisure v Poleplus Limited [2015] EWHC 841 (IPEC) I pointed out that although their Lordships in Fish & Fish differed as to the outcome of the appeal, which turned on whether the contribution to the tort by the alleged tortfeasor fell below the de minimis threshold, they agreed on the law of joint tortfeasance. The law emerges from all their judgments. I attempted a summary, concluding with this: “[66] I interpret this to mean that in order to fix an alleged joint tortfeasor with liability, it must be shown both that he actively co-operated to bring about the act of the primary tortfeasor and also that he intended that his co-operation would help to bring about that act (the act found to be tortious). Liability will always be subject to the threshold requirement that the alleged joint tortfeasor’s contribution to the act was more than de minimis.” 53.An alleged joint tortfeasor cannot have actively co-operated to bring about the relevant act of the primary tortfeasor if he (the alleged joint tortfeasor) did not know about that act. 54.The District Judge found that Mr and Mrs Luckes did not know about the misrepresentation on the ALS Website. Therefore they were not joint tortfeasors with ALS.