Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

The last of the List of Issues for decision was agreed as follows: are the Defendants or any combination of them joint tortfeasors in respect of (i) copyright infringement, and (ii) passing off, such that they are jointly liable for any of the acts alleged?

My findings of copyright infringement and passing off above all relate to GM Drinks and all relate to the First Label. Some of the findings in relation to copyright infringement only relate to First Label products relevantly dealt with from shortly after 13 April 2020. The question therefore arises of whether either Mr Patch or BSH is jointly liable for those acts which have been found to be infringing.

The issue of joint tortfeasorship has recently been reconsidered by the Supreme Court in Lifestyle Equities CV & Anov v Ahmed & Anor [2024] UKSC 17; [2025] AC 1. In summary, the Supreme Court held that a defendant will only be held jointly liable if it can be established that they had actual or constructive knowledge of the essential facts which made the act of the primary wrongdoer tortious. Lord Leggatt, with whom Lord Lloyd-Jones, Lord Kitchin, Lord Stephens and Lord Richards agreed, summarised the position as follows:

“135.

To summarise, there is a general principle of the common law that a person who knowingly procures another person to commit an actionable wrong will be jointly liable with that other person for the wrong committed. The liability of the procurer is an accessory liability. Where the primary wrong is a breach of contract, this accessory liability takes the form of a distinct tort. Where the primary wrong is a tort, however, there is no need to posit a separate tort of procuring another person to commit a tort. Where the general principle applies, the procurer is made jointly liable for the tort committed by the primary wrongdoer.

136.

There is a further, distinct principle of accessory liability by which a person who assists another to commit a tort is made jointly liable for the tort committed by that person if the assistance is more than trivial and is given pursuant to a common design between the parties. On the facts of a particular case both principles may be engaged. But on the present state of the law assistance which falls short of procuring the primary wrongdoer to commit the tort cannot lead to liability unless it is given pursuant to a common design.

137.

Although procuring a tort and assisting another to commit a tort pursuant to a common design are distinct bases for imposing accessory liability, they must operate consistently with each other and such that the law of accessory liability in tort is coherent. Considerations of principle, authority and analogy with principles of accessory liability in other areas of private law all support the conclusion that knowledge of the essential features of the tort is necessary to justify imposing joint liability on someone who has not actually committed the tort. This is so even where, as in the case of infringement of intellectual property rights, the tort does not itself require such knowledge. As Paul Davies says in his excellent book on Accessory Liability (2015) p 211: ‘Strict liability might suffice for the primary tort but should not be sufficient for accessory liability.’”

Some guidance was provided on what the “essential features of the tort” are for the purposes of copyright infringement, but not in relation to passing off, to which I return below.

The Claimants set out their position in their opening written submissions. These were divided into pre-notification claims and post-notification claims, notification being said to be 13 April 2020 when Ms Martin notified Mr Patch of the existence of her Work and the allegation of copyright infringement. That understates the position. As I have set out above, the chain of correspondence shows that the allegation of copyright infringement was made against GM Drinks on 13 April 2020, but was not made against BSH until 8 December 2021, and was not made against Mr Patch personally until 6 January 2022. Allegations in relation to the Second Label date from 7 October 2020 and for the Third Label date from 6 January 2022.