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Passing Off – A Double Dismissal Case


By Sam Knight, Underwriter

(Estimated reading time: 1 minute 23 seconds)

Philip Warren & Son Limited v Lidl Great Britain Ltd & Ors [2021] EWHC 2372 (Ch)

This was a case concerning the common law tort of ‘passing off’ where, surprisingly, both the claim and the Defendant’s counterclaim were dismissed. The Court, perhaps also in a break from normality, ordered that the Claimant should not pay the Defendant’s costs on an indemnity basis even though they clearly failed to beat the Defendant’s Part 36 offer.

The learned judge held that it was not ‘unreasonable’ for the Claimant to decline the Part 36 offer as an independent expert valuation report put the claim at a far higher value. In the light of authorities such as Lejonvarn v Burgess [2020] EWCA Civ 114, it is necessary to consider whether the action takes the case ‘out of the norm’ so as to justify costs on an indemnity basis.

During the case, the presiding judge Mr Daniel Alexander QC made a number of interesting remarks about ATE/litigation insurance and damages-based agreements; most notably that the combination of the two should not result in ‘risk free’ litigation. However, he also acknowledged that they could each play a part in widening participation and access to justice, particularly in costly civil matters.

Temple Legal Protection’s litigation insurance policies are purposefully designed to allow your client to pursue their cases with peace of mind. We pride ourselves on offering fully deferred and contingent litigation insurance premiums as standard, and whilst we can’t make litigation ‘risk free’, we certainly try to take the weight off your client’s shoulders.

If you would like more information or have any other legal expenses insurance query, please email or call him on 01483 514428.