Joint liability of Mr Gu
95.The Particulars of Claim plead that Mr Gu is jointly liable with WLE for its acts of infringement because he has at all times been the sole director and shareholder of WLE and since about 27 November 2009 has, with his wife Xia Lin, been the owner of the freehold in WLE’s business premises. The claimants infer from this that Mr Gu is and at all material times has been the controlling mind and will of WLE.96.The Defence and Counterclaim admits that Mr Gu is the sole director and shareholder of WLE and fails to plead to the inference that he its controlling mind and will (there is no general traverse).97.In argument the defendants referred to MCA Records Inc v Charly Records Ltd (No.5) [2001] EWCA Civ 1441 and in particular these observations in the judgment of Chadwick LJ:“… the relevant enquiry is whether [the director or other officer of the company] has been personally involved in the commission of the tort to an extent sufficient to render him liable as a joint tortfeasor …” (at [37])and“… the question whether the individual is liable with the company as a joint tortfeasor – at least in the field of intellectual property – is to be determined [according to whether] … the individual ‘intends and procures and shares a common design that the infringement takes place.” (at [51])98.The defendants argued that the claimants had established neither that Mr Gu was sufficiently involved in WLE’s acts of trade mark infringement nor that he intended and procured and shared a common design that those acts took place.99.It is not often that evidence is available to a claimant which directly proves an individual’s sufficient involvement in a tort and his mental state in that regard. In cross-examination Mr Gu came close to giving such evidence. He said that he was in charge of the business, WLE was his company and his project. If it were to change its name, he would pick the new name.100.In Grenade (UK) Limited v Grenade Energy Limited [2016] EWHC 877 (IPEC), an application for summary judgment, I said that where the individual alleged to be jointly liable is the sole director, sole shareholder and acknowledged to be a one-man company, this raises an evidential burden on the individual to show why, contrary to what one might expect, that the acts of company complained of were not initiated and controlled by the individual. In the present case I take the view that if there remains any significant gap between Mr Gu’s admissions and the two tests set out by Chadwick LJ in MCA Records, Mr Gu was under an evidential burden to explain why, contrary to all appearances, he did not personally select WLE’s trading name and did not personally procure WLE to use that name. In my judgment, absent such evidence and given what he did say, he is jointly liable with WLE for the acts of infringement of the Trade Mark.