[2025] EWHC 1722 (IPEC)

I accept the evidence of Mr Hills and Mr Morris that the First Defendant cannot effect payments on behalf of its customers and does not do so, and that payment facilities are provided by a connected but nevertheless legally separate company, Modulr, which is not a party to the proceedings. Indeed, there was no evidence before me that Modulr uses the Defendants' Signs. Mr Hills’ evidence was that any of its contractors wishing to use Modulr’s services would sign up to Modulr separately and would be well aware that payments were being effected through a Modulr account (or some other third-party bank account) not through the First Defendant.

The difficulty for the Defendants is that its own descriptions of its services make repeated references to payment. In addition to the pleaded instances which I have set out at [63] above, Mr Hills was taken in cross-examination to some marketing materials for the First Defendant of uncertain date, other than that they were exhibited to Mr Weeresinghe’s witness statement of November 2024. One such exhibit shows what I believe to be a page from the First Defendant’s website. Under the heading "Welcome to Wise" this says "Wise is a payment services provider. Through Wise, you can access specialist self-employment tax advice to help courier drivers manage their tax admin and maximise take-home pay. Pegasus Couriers have partnered with Wise to process all driver payments and to offer added services." It referred to using a government approved flat rate VAT scheme and at the bottom of the page it said "It’s important all drivers download the app to ensure Wise capture bank details for payments…” When cross-examined on this, Mr Hills did not accept that Wise is a payment services provider, but accepted that the Defendants needed to "sharpen up” some of their terminology as they had what he described as "a little bit of a problem there regarding some of the terminology we used." Mr Hills thought changing “payments” to “invoices” would clarify the position. He made similar remarks when taken to (a) another website entry from September 2023, "Streamline your driver payments. Process weekly, bi-weekly and monthly payments" and "Build and manage payments in one platform. Let The System Do All The Hard Work … you can easily input your drivers [sic] pay into the portal, leaving the payment distribution to us,” (b) some wording about simplifying paying a workforce from one of the CXX documents, and (c) the promotional video exhibited to the Amended Particulars of Claim. For example, Mr Hills explained that all that the First Defendant would do when the customer hit the "make payments" button would be to generate a CSV file (in effect a spreadsheet) which would enable the contractors to pay their subcontractors in an efficient manner. Mr Morris was also taken to a document referring to future “payment functionality”, brought in, as the Claimant accepts, through the link to Modulr.

In my view, the references to payments of that sort in the Defendants’ website and materials may have overreached the Defendants’ actual offering, as Mr Norris KC submitted, but they would nevertheless have been likely to lead a customer to think that the First Defendant was providing some sort of payment facilities, technology or services, even if that was not correct for the reasons given by Mr Hills. The separation of the services the First Defendant offered from the payments which could then be effectuated through a third party was inadequately explained. Indeed, Mr Hills was taken in cross-examination to a page from the website of one of the First Defendant’s contractor customers, Pegasus Couriers. The page was recorded on the Wayback Machine in July 2023 and appears to set out questions and answers for Pegasus’s drivers, in which Pegasus said that “all driver payments are made through an accountancy firm called Wise.” So it appears that Pegasus had misunderstood the way the Defendants’ system worked, although, in the absence of evidence from Pegasus, I suppose it is possible that it was seeking to simplify matters for the benefit of its drivers.

In addition, it is clear that the First Defendant was offering payroll facilities. That was the case from around the time it started trading as Wise, as shown in pages from its website from inception in about April 2020. So, through its website from 2020 and then also through its app from 2021, invoices could be generated for drivers, which would lead to payment of those invoices by the contractors, even if the payment was being effected through a third-party bank. This may not have amounted to the provision of a full payroll service but in my judgment it amounts to providing elements, indeed, important elements, of a payroll service.

I conclude that the Defendants may have advertised payment services, but they have supplied a narrower range of services all of which to my mind amount to payroll services and include the generation, provision or submission of invoices.

The Claimant contended that “Payment services and invoicing services, including managing, organising and arranging payments and invoices” (which in the light of my conclusions above should be limited to payroll management, including managing, organising and arranging payments and invoices, and payroll services) are identical (or highly similar) to its Class 36 Financial affairs; monetary affairs … relating to the transfer of funds and providing methods for payment …; financial services including … payments…; and electronic money services. The Defendants denied this. Their position was that financial and monetary services involve customers moving or trading in money or financial assets. A supplier of such services requires a licence from the FCA which the First Defendant lacks, so it cannot be said to be providing such services.

I consider that organising and arranging payments is identical (applying the Meric test) or highly similar (applying the usual Canon criteria) to the very broad term “financial affairs” and to “monetary affairs ... providing methods for payment.” However, for the reasons given above, I find that that the Defendants have not provided such services, as opposed to payroll services, despite the misleading references to payments on the website/app.

The Claimant submitted that “Payroll services” are identical (or highly similar) to the same parts of the Class 36 specification. In my judgment, payroll services are identical to “financial affairs" and are similar to “monetary affairs … relating to the transfer of funds and providing methods for payment” and “financial services including … payments…” as the nature and providers of such services are the same or likely to overlap.