Page 318 - The_story_of_the_C._W._S._The_jubilee_history_of_the_cooperative_wholesale_society,_limited._1863-1913_(IA_storyofcwsjubill00redf) (1)_Neat

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The Story of the C.W.S.
There has been no stealing or appropriation of the benefit of the plaintiffs'
reputation or expenditure in advertisements. On the contrary, what the
defendants say to their customers is: Do not ask for " Lux " or " Monkey
Brand," but buy our C.W.S. " Flakes " or " Parrot Brand " instead. If any-
thing wrong has been done it has been accidental or inadvertent.
Although, no doubt, the defendants are legally responsible for the misconduct
of any of their servants, having regard to the unfair manner in which the
defendants were treated with respect to the trap orders, and considering also
the enormous expense occasioned bj^ the course which was taken by the
plaintiffs at the trial, and their conduct of the actions generally, I decline to
order the defendants to pay any part of the costs of the plaintiffs. I am not
sure that the plaintiffs ought not to be ordered to pay the costs, or part of the
costs, of this most inordinately and unnecessarily protracted trial.
Leave to appeal was given, and appeal was made by Messrs.
Lever. The appeal occupied the daj^s February 29th to March
2nd, 1912. The Master of the Rolls, Lord Justice Fletcher Moulton,
and Lord Justice Buckley heard the case, in which Mr. T. R. Hughes,
K.C., again led the defence, and Sir Robert Finlaj', K.C., M.P. (in
place of Mr. Astbury, K.C., engaged elsewhere), was leading counsel
for the plaintiffs. The latter again asked that the undertaking
already given by the Masbro' Co-operative Societj^ should be trans-
formed into an injunction with costs. The evidence and proceedings
of the lower court were argued by plaintiffs' counsel in the light
—or darkness—of decided law cases; and the origmal claim to
protection from " substitution " (a term which the Master of the
Rolls said he had never heard before) was advanced, and subjected
to comments not less caustic than those of the court below.
Following this, without troubling the defence, the Master of the Rolls I
gave judgment. He characterised it as "a remarkable case";
and after citing legal reasons why the refusal of the lower court to
grant costs to the plaintiffs should be upheld, he, therefore, not
only dismissed the appeal with costs but added a supplementary
statement. In the course of it he said:
The action seems to me to be framed on the idea that the plaintiffs have an
interest in every order given to the defendants for " Lux," although the pur-
chaser, when he receives " Flakes," is in no way deceived, and is content to get
what has been sold to him by the defendants as being the nearest article they
keep in stock. I think that is a mistaken view of the matter. ... I regard
this action as an attempt by the plaintiffs to compel the defendants to stock
their soaps or to abstain from selling their own soaps. Sir Wilb'am Lever
frankly asserts that it is impossible for the defendants, in the hurry of business,
to avoid supplying their o\\'n soaps without proper explanation to the pur-
chasers who have asked for the plaintiffs' article. This, in my opinion, is a
somewhat audacious claim to a monopoly, without warranty in law.
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