Court of Appeal dismisses Arcadia’s appeal on costs in Rhianna and Topshop case

Charlie Tomlinson

Following the Court of Appeal’s judgment in popstar Rihanna’s passing off claim against Arcadia Group (the owners of Topshop), the court has also dismissed Arcadia’s appeal on costs. In deciding that Arcadia should pay Rihanna’s costs – estimated at £1 million – the Court of Appeal rejected the appellants’ arguments that the level of costs recovery should be reduced to take into account the difference between the scope of the injunction sought and that granted by the court.

Background and main claim

In a case widely reported in the press, in July 2013 Rihanna was successful in bringing a passing off action against Arcadia following Topshop’s sale of t-shirts bearing a photograph of her without her approval. The judge granted an injunction prohibiting Topshop from selling the t-shirt without clearly informing purchasers that it had not been approved or authorised by Rihanna. The Court of Appeal upheld this decision on 22 January 2015.

Appeal on costs

The judgment on the related appeal on costs was handed down 3 February 2015. The appellants contended that, even if they were liable for passing off, they should not have to pay the respondents’ costs. This was because the question of costs could not be determined justly and fairly without taking into account the following matters, which should have resulted in a large reduction in the level of costs recovery:

  • that the breadth of the injunction sought by the respondents and without prejudice correspondence between the parties demonstrated that, in truth, Rihanna was pursuing a claim to a broad “image” right (which does not exist under English law);
  • the fact that the injunction granted related solely to the t-shirts showed that she had not succeeded in the “image” rights claim; and
  • the t-shirts had long since sold out and there was no real prospect of further passing off, particularly in light of undertakings offered by Arcadia in without prejudice correspondence.

In dismissing the appeal, Kitchin LJ said that the judge properly took all these matters into account and his costs order “lay well within the bounds of a reasonable exercise of the wide discretion which he had”. The answer to the central question at issue was that the appellants were guilty of passing off. Furthermore, their activities amounted to a material misrepresentation and the respondents were the winners on the issue of liability. Although the judge had not granted an injunction in the broad terms sought, he did grant an injunction restraining the appellants from repeating the activity on which the claim had been founded – an activity which they maintained they had a right to carry out.

Although it was not a determinative factor in this case, the Court of Appeal’s ruling illustrates that the difference between the scope of an injunction sought and that granted at trial may be taken into account when determining costs.

Robyn Rihanna Fenty and others v Arcadia Group Brands Ltd and another [2015] EWCA Civ 38

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