Case No. EWHC-1798-(IPEC)

99.Mr Colbey summarised his clients’ case as follows:•It is not helpful to dwell on what happened in the 1970s but it is likely that all of the early goodwill vested in the 1976 Company in which Mr Richardson, Mr Clarke and Mr Williams were all shareholders;•There was no effective assignment to AWEL of rights in the 1976 Company in 1994 on the basis that:◦Mr Clarke refused to sign any document in relation to such purported agreement;◦there was no consideration for any agreement; and◦Mr Richardson was pressured into signing the agreement or did so on the basis of a misrepresentation;•Even if the agreement signed by Mr Richardson were effective, it would not matter, as long as Mr Clarke had not surrendered his goodwill, as Mr Richardson could perform alongside Mr Clarke under Mr Clarke’s goodwill in ‘the Rubettes’;•To the extent that the Claimants rely on any argument that Mr Williams was the ‘last man standing’ of a partnership at will, such an argument is fallacious as once any member leaves a partnership at will the partnership dissolves with the usual rights following dissolution;•A more realistic analysis of the goodwill in ‘the Rubettes’ is that it has grown organically since 1974 with all of Messrs Williams, Clarke and Richardson having traded under that name for much of the period since then;•By selling their musical skills to perform as ‘the Rubettes’, Mr Clarke and Mr Richardson have generated goodwill of their own;•When Mr Williams told Mr Clarke in the 1 July email that he was disbanding the Rubettes, it followed that he was abandoning the goodwill.100.Mr Colbey’s primary submissions were based on the pleading at paragraph 33.4 of the Amended Defence that Mr Clarke and Mr Richardson have (when performing under ‘the Rubettes’ name) generated their own goodwill because of their status as founding members of the band and because they were selling their musical skills as independent traders in such a way as to accrue goodwill in ‘the Rubettes’. While not originally articulated in this way, Mr Colbey’s overall submission was that:(i)even if the 1994 Agreements had transferred any rights in any goodwill owned by the 1976 Company to AWEL, this would not have affected the personal rights of Mr Clarke or Mr Richardson to goodwill which they had accrued concurrently with that company and its predecessor; and(ii)Mr Clarke and Mr Richardson have continued to accrue goodwill concurrently with AWEL since 1983.101.As far as the period after 2002 is concerned, Mr Colbey did not dispute that AWEL accrued goodwill in ‘the Rubettes featuring Alan Williams’. However, Mr Colbey submitted that the 2002 Settlement Agreement meant that Mr Williams could not perform in a band using just the name ‘the Rubettes’ and that, as a consequence, as from 2003 the Claimants could not build up goodwill in ‘the Rubettes’. He submitted that it was clear from the Amended Defence (paragraph 35) that the Defendants had pleaded that the 2002 Settlement Agreement meant that the Claimants could not rely on any ‘Rubettes’ goodwill after the beginning of 2003. That being so, he argued that the Claimants could not stop the Defendants from using ‘the Rubettes’.