Following Eddie Irvine’s recent passing off victory over Talksport, a further judgment handed down by Mr Justice Laddie in the subsequent inquiry as to damages reveals that Irvine’s victory was a pyrrhic one – so pyrrhic that Talksport’s counsel was at one point told by the judge to knock the smile off his face!
As reported in our early warning in March, Talksport had used a manipulated image of Irvine holding what appeared to be a radio bearing the words ‘Talk Radio’. This photograph was used on a four-page brochure as part of a limited campaign to interest potential advertisers in placing advertisements with Talk Radio. This was held to amount to passing off in what has been heralded as a landmark decision.
The reason Irvine will not be happy with the result is that his damages were assessed at a paltry £2,000. Not only is this a drop in the ocean compared to the legal costs he will have incurred, but a large part of Talksport’s costs have also been ordered to be paid by Irvine.
A year before the action came to trial Talksport paid £5,000 into court. If Irvine had accepted this payment in satisfaction of his claim he would also have received most of his costs up to that point. Because he has now been awarded less than was on offer at that time, Talksport has to pay Irvine’s costs up to a year ago, but Irvine has to pay Talksport’s subsequent costs.
The damages judgment contains some interesting analysis of the principles to be adopted in assessing damages for passing off cases in false advertising cases such as this. The judge accepted Irvine’s argument that he would not have got out of bed for less than £25,000, his normal endorsement deals being much weightier than the limited advertising use Talksport had made of his image. However, this was as irrelevant as Talksport’s ‘not unreasonable’ counter-argument that it would simply have used a different photograph if faced with a substantial fee. What the court had to try and do, ‘as unreal as it may appear, is to work out the fee which would have been arrived at as between a willing endorser and a willing endorsee.’
The whole promotion only cost £11,000 to design, produce and distribute. Talksport argued that the absolute maximum that could have been charged was 50p per brochure, leading to a damages figure of under £500 (and even this would have been unattractive to them). Irvine asked for damages in the region of £50,000, in line with his long track record of major endorsement deals that was produced in evidence. The judge took the view that a reasonable endorsement fee, erring on the generous side, was £2,000.
Both sides were given leave to appeal, although the judge told counsel he hoped their clients had in mind what the cost was compared with what was at stake.