The High Court refused Joseph Brennan Bakeries leave to pay money into court in litigation brought by McCambridge Limited, ruling that the lodgment procedure does not apply to a claim for an account of profits.
Mr Justice Kelly’s judgment addressed a procedural application, not the amount of any profits due. McCambridge had elected to seek an account of profits after earlier proceedings in which it succeeded on liability for passing off. Its case had also alleged infringement of copyright in whole-wheat bread packaging.
The underlying action began in March 2011. In November of that year, Mr Justice Peart found in favour of McCambridge and restrained the bakery from passing off its bread as McCambridge’s, and from using confusingly similar packaging to advertise, market or promote bread. The Supreme Court dismissed the bakery’s appeal in July 2012 and affirmed similar injunctions.
After that appeal, McCambridge sought financial information to help it choose between damages and an account of profits. In February 2013, it elected an account, saying the information supplied appeared to show a profit of €608,481 from whole-wheat products sold in the offending packaging. The bakery later confirmed that another company, Doyle’s Quality Products, had manufactured and packaged the product, and said it would account for any profits earned by Doyle’s without joining that company to the proceedings. The €608,481 figure was McCambridge’s stated estimate, not a finding in this judgment.
The bakery sought permission under Order 22, rule 1 of the Rules of the Superior Courts to lodge money in court in satisfaction of the claim. McCambridge objected, arguing that an account of profits is an equitable remedy distinct from damages and that a lodgment could pressure it to accept less than the account might ultimately show.
Mr Justice Kelly held that an account of profits is not an action for damages for the purposes of the rule. He also rejected the request to create an analogous procedure under the court’s inherent powers, finding no need to do so in the interests of fair procedures or case management. Allowing a lodgment could put the claimant at an unfair risk if the eventual account produced a lower amount, with potential cost consequences.
The court answered that a lodgment was not permitted in this type of claim, said the separate question about granting permission did not arise, and refused the application. The judgment did not determine the profits payable or resolve the taking of the account.