All-female Division’s decision

Back on 5 June 2008 Scots Law News noted the first-ever sitting of an all-female Division in the Inner House of the Court of Session, and can now belatedly report the publication of their unanimous decision on 16 July 2008.

The case, Wise Property Care Ltd v White Thomson Preservation Ltd [2008] CSIH 44, was not a straightforward one.  In 1976 W and T set up a company called White Thomson Preservation Ltd, carrying out business in property preservation services.  In 1983 W and T went their separate ways, trading respectively as WTP (Northern) Ltd (WTPNL) and WTP (Southern) Ltd in different regions of Scotland.  W1 was joined in WTPNL by his three sons, E, G1 and G2.  In 2002 the sons left and set up a new company called White Preservation Ltd (WPL); E left this in 2004.  In 2005 W retired and WTPNL was dissolved.  In 2006 G1 and G2 sold the business and assets of WPL to Wise Property Care Ltd; Wise successfully ran the business until late 2007 as “White Preservation, a division of Wise Property Care Ltd”.  WPL’s name was first changed to “Gragav Ltd”, then the company was dissolved.  Wise separately set up a company called WPL but it never traded.  In 2007 E set up a new company called White Thomson Preservation Ltd, adopting the business get-up of his father’s former company and undertaking to honour the guarantees issued by that company.  The court accepted that in effect E was reviving a dormant business.  Wise sued E’s company for passing off.  Interim interdict was granted by the Lord Ordinary on the balance of convenience, and the Division of Ladies Paton, Smith and Dorrian refused the reclaiming motion.  Wise had built up goodwill in the “White Preservation” name; the companies were trading in the same business and region; consumers were confused, although local property professionals such as solicitors were not; and White Thomson Preservation Ltd was effectively a newcomer or interloper, the interests of which should be given less weight than those of the established business. 

It is worthy of note that although the defender was a ‘newcomer’ it was in fact the only one of the two companies involved which had within its operation a member of the White family which had given its name to the business acquired by the pursuers.  Their Ladyships clearly have some nagging doubts on this, but can see no reason to interfere with the Lord Ordinary's exercise of his discretion on the material before them.

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