Case No. EWHC-1798-(IPEC)

[2005] EWHC 1638, 1878 per Lewison J).162.The evidence is that after 1 July 2018 the Claimants continued to seek engagements as before. The evidence is also that at least Mr Richardson and Mr Etherington were aware of that fact. Both were in discussions with Mr Williams about possible future performances, although both also said that they did not necessarily assume that those discussions would lead to particular dates being confirmed.163.Mr Clarke’s oral evidence was that he thought the band was coming to an end. He gave evidence that he thought that Mr Williams had gone to Australia to retire. He also acknowledged that he had spoken to Mr Richardson and Mr Etherington about Mr Williams’ approaches to them about possible future dates.164.Mr Clarke’s first witness statement states that since 2014 Mr Williams had travelled to Australia for extended periods. It also states that when Mr Williams explained that he planned to move there the Defendants discussed what they would do and decided to carry on without Mr Williams, and to trade separately from AWEL. Mr Clarke’s written evidence is that this occurred at some stage before July as his evidence is that before then Mr Richardson had told Mr Williams that the others would continue to perform as ‘the Rubettes’ without him and that they subsequently began to look for work under that name later in 2018. While there are some grounds to doubt whether the reported conversation between Mr Richardson and Mr Williams ever took place (as discussed below), Mr Clarke’s first witness statement is clear that initial discussions as to the Defendants’ future plans without Mr Williams took place before the 1 July email.165.Mr Clarke’s second witness statement takes a different line. It refers to Mr Williams’ email of 1 June (sic), portrays this as a “disbanding of the Second Claimant’s band in the summer of 2018” and suggests that it was only subsequently that the Defendants decided to perform together.166.This position is reflected in the written evidence given by Mr Etherington. He states that he understood the 1 July email to be a statement that Mr Williams was disbanding the band and that this was because of Mr Williams’ forthcoming move to Australia. Mr Etherington goes on to say at paragraph 4 of his second witness statement:“Shortly after July 2018, I was asked by John Richardson and Mick Clarke if I would join them to perform as The Rubettes featuring John Mick and Steve. I agreed to this. At this time Alan also wanted me to be in his new band together with John.”167.Mr Etherington’s oral evidence was that he continued to play alongside Mr Williams until September; that he continued to discuss possible future dates with Mr Williams until at least December 2018; and at that stage he still hoped that “things would work out”.168.Mr Richardson’s evidence was that there were various arguments among band members about payments and costs and that:“Alan told me that it was his intention to sack Mick from the band due to his ‘sticking up’ for himself … and his questioning of Alan with regard to finances. This was something that I tried to talk Alan out of. It was following his refusal of my efforts to keep this version of the band together that Alan wrote to Mick stating that he was disbanding the band and no longer required his services”. (Third witness statement of Mr Richardson, paragraph 5.)169.The evidence surrounding the events from March to December 2018 demonstrates many of the concerns discussed by Leggatt J in Credit Suisse.170.There is no credible evidence that Mr Williams or AWEL ceased to trade in 2018 or that any goodwill was abandoned at that stage. Even if the Defendants or some of them genuinely held that belief or have come to hold it subsequently, that belief was not founded in reality. The Claimants continued to trade as previously, albeit with a new line up, as had been the case many times in the past. The only evidence of intention to cease trading relied on by the Defendants is the 1 July email. That email does not bear the weight placed on it by the Defendants, even if their evidence as to their understanding of it were consistent.171.The events of 2018 do not establish that there was any abandonment by the Claimants of the goodwill that they owned whether at 1 July 2018, at some earlier meeting with the Defendants, or subsequently.Conclusion on Goodwill / issues 1 to 3.172.I conclude in the light of the above that the Claimants have established goodwill in the Rubettes Names from at least 1983. I also find that the Defendants do not have concurrent or senior goodwill. As at the relevant date (the autumn of 2018, when the Defendants began to look for work separately from the efforts of AWEL to promote a band), the Defendants had never carried on trade as ‘the Rubettes’ or any similar name with or without a suffix.