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Content Type: Cases Title : Guild v Eskandar Ltd (formerly Ambleville Ltd) Delivery selection: Current Document Number of documents delivered: 1

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Status: Negative Judicial Treatment Shirin Guild v Eskandar Limited (Formerly Known as Ambleville Limited), Eskandar Nabavi (Trading As Eskandar)

No. CH 1997 G 5380 CH 1998 A 1105 High Court of Justice Royal Courts of Justice 2 February 2001

2001 WL 542299

Before: Mr Justice Rimer Friday 2nd February, 2001 Representation

Miss Denise McFarland and Mr Geoffrey Pritchard (instructed by D.J. Freeman) appeared for the Claimant.

Mr Kevin Garnett Q.C. and Mr Gwilym Harbottle (instructed by Withers) appeared for the Defendants.

JUDGMENT

MR JUSTICE RIMER:

Introduction

1. The claimant in these consolidated actions is Shirin Guild (“Mrs Guild”). She appears by Miss Denise McFarland and Mr Geoffrey Pritchard. She is a fashion designer and operates as a sole trader. The defendants are Eskandar Nabavi (“Mr Nabavi”) and his company, Eskandar Limited, formerly Ambleville Limited. They appear by Mr Kevin Garnett Q.C. and Mr Gwilym Harbottle and also carry on business in the fashion field. The parties are competitors. No distinction was drawn during the trial between Mr Nabavi and his company. All Mrs Guild's complaints were directed at Mr Nabavi and it was accepted that, if he is liable to her to any extent, then so likewise is his company, to which I will make no further separate reference. 2. Mrs Guild claims to be well known in the fashion industry, not because each season she produces radically new styles, but because of the personal “signature” which is a feature of her collections. The shapes and configurations of all her garments are very similar and she claims that she has created her own distinct range of them, whose proportions and features are uniquely hers. Her complaint is that Mr Nabavi has copied her designs for three garments: a shirt, sweater and cardigan. She asserts that she is the originator and owner of the copyright and/or design right in respect of the designs for these garments. Her case is that Mr Nabavi has plagiarised and marketed them. She claims injunctions and damages. 3. The designs of the three garments are simple but distinctive. They are all based on what is sometimes — but inaccurately — described as the big square shape. They are certainly big, but rectangular rather than square. Their common characteristic is their unusual width. They are about 100cm wide — although certain of the sweaters are a little narrower, at about 90 cm — and are made in varying lengths. When laid flat they are symmetrical, untailored and unstructured. When worn they drape and flow over the body. In simplicity, if not in size, Mrs Guild would claim that they well demonstrate the fashion maxim that less is more. When I hereafter describe garments, I describe them as they are when laid flat. 4. Mr Nabavi disputes Mrs Guild's assertions to the origins of the designs, denies she is entitled to any relevant copyright or unregistered design right and denies any copying. If he is wrong on these arguments, he claims that any copyright or design right belong to a former partnership between himself, Mrs Guild and others and that, as a former partner, he has as much right as she does to exploit the designs.

General background: Mrs Guild

5. Mrs Guild was born in Teheran in 1946. She left Iran in 1978, lived in California, became naturalised as a US citizen and came to London in 1985 after a divorce. In 1986 she married Robin Guild, an interior designer, and became a British citizen by naturalisation. At all times material to these actions she has lived at 44a Montrose Place, London SW1. 6. Mrs Guild has always been interested in fashion and fabrics. She has, in particular, been much influenced by ethnic and peasant dress and has always worn ethnic clothes. She began experimenting with “peasant style garments” in the 1980s. In 1987 and 1988 Manijeh Bakhtiar made up some silk jackets for her. These were of the so-called square design and Mrs Bakhtiar made them in accordance with Mrs Guild's instructions as to their styling and size, although Mrs Bakhtiar did not suggest in her evidence that Mrs Guild produced any written designs for her. 7. Mr Guild encouraged his wife to make a business out of her design ideas. With an eye on doing so, Mrs Guild decided to learn more about fashion design, in which she had had no formal training. In 1988 she became a private student of Pauline Rosenthal, a lecturer at the Central St Martins School of Art in London and a former lecturer in fashion design at the Lucy Clayton School of Fashion. Miss Rosenthal said in evidence that she tried to teach Mrs Guild the rudiments of design and drawing but that she already had a clear idea of the kind of garments she wanted to make. She said Mrs Guild drew her inspiration from her Iranian background and ethnic peasant clothing, and recalled that Mrs Guild had shown her examples of peasant Iranian dress, which were of the like flat and “geometric” shapes that were to become the main feature of Mrs Guild's designs. These were based on simple shapes, often squares, that were flat and symmetrical when laid out, but when worn would drape and flow with grace and fluidity the like of which Miss Rosenthal said she had never seen in the marketplace before. They were untailored and unstructured. Miss Rosenthal said Mrs Guild had a tremendous sense of what went together and a good sense of colour, preferring opulent and dark colours. She was not very interested in the ideas of others, was totally preoccupied by her own and had her own “strong handwriting or signature”. After about six months Miss Rosenthal encouraged her to go off and manufacture her own designs. 8. In about 1988 or 1989 Mrs Guild was introduced to Belinda Robertson, whose company is Belinda Robertson Limited. She is a designer and contract manufacturer of cashmere knitwear and is involved in both the factory and the technical side of garment production. She has offices in London and Edinburgh, and production is done at a factory in Hawick owned by Kenneth Short, with whom she has an exclusive production and marketing contract. 9. Mrs Guild said that, when she went to see Mrs Robertson, she took with her an oatmeal coloured, 100 cm wide, cut and sew crossover V-neck sweater she had made in a stretchy jersey fabric. She no longer has it, but claims to have re-made in black a replica as close to it as she can recall. The replica is garment EE and was made in black because Mrs Guild said oatmeal was not available at the time. The crossover in garment EE is right over left. The garment is 100 cm wide under the arms, 101 cm wide at the bottom and about 73 cm long. Its sleeves (from the central point of the armhole to the centre of cuff) are 29.5 cm long (references hereafter to sleeve lengths are to like measurements) and taper from about 20.75 cm wide at the armhole to about 14.25 cm at the end of the cuff. The upper line of the sleeve is a continuation of the shoulder line, the lower line sloping gently upwards. Mr Nabavi disputes that any garment in this form existed as early as 1988 or 1989 or that Mrs Guild ever showed any such garment to him after their association began in 1991. That is an issue of some importance. Page3

10. Mrs Guild said that Graham, the factory technician (his surname is uncertain — even to Mrs Robertson), told her their machines could not produce garments as wide as her oatmeal one. His role was to write the knitting lines for production garments, which he would do on the basis of specifications provided by Mrs Robertson. Mrs Robertson, who gave evidence, recalled this visit and that Mrs Guild wanted garments in a so-called big, square shape. She could not recall being shown the oatmeal sweater, or whether the width Mrs Guild wanted was 100cm, but she did remember that the question of width arose and whether they could do it on their looms, although she could not recall what width they could do at that stage. She said that the garments she was producing were mainly of a more traditional type, knitted on a fully-fashioned frame, and she recalled that the width of Mrs Guild's proposed garments represented an unusual departure from the norm. Nothing came of this initial visit by Mrs Guild to Mrs Robertson. 11. Maryse Boxer, formerly a fabric designer, met Mrs Guild in 1989. She wanted a new outfit to wear to New York and Mrs Guild made her one of square design, including trousers and a jacket in sheer fabric. Mrs Boxer was impressed and told Mrs Guild she was very talented and should be a designer. There is no precise evidence of the design of the items in this outfit, but I find they bore no close relation to the designs in issue: Mrs Boxer's evidence as to Mrs Guild's designs by 1992/93 (the ones in issue) was that these were very different from anything she had seen in 1989. 12. Mrs Guild and Mr Nabavi met in the spring of 1991 and in about the autumn they established a business relationship directed to the creation of garments. That continued until about July 1992 when it broke down, after which they went their own ways and produced and marketed their own garments. They have since each been very successful with their respective designs, but Mrs Guild claims that Mr Nabavi's success is largely referable to the fact that he has copied hers. 13. Mrs Guild claims that the proper description of her garments in issue in this action is that they are “symmetrical” rather than “square” or “big square” (as I have said, they are rectangular). They do not have the structure of a garment made to a specifically tailored design. They are not tailored, and are better described as unstructured. They drape, they flow, they move around during wear and can be worn by people of all shapes and sizes. When laid flat they are not in any way distorted. She said that the basis for the design for her shirt, cardigan and sweater (including in particular the crossover V-neck and the round neck) derived from garments she made in the 1980s. She claims that her designs are unique and distinctive, and she adduced evidence providing some support for that. For example, on 27 August 1994 Lucia van der Post wrote in The Financial Times about Mrs Guild's autumn 1994 range, saying:

“You may think that a sweater is a sweater is a sweater … until you see Shirin Guild's sweaters. They are voluminous and dramatic — great square shapes that start somewhere around the elbow. I have never yet worn one without those who have come upon them saying: ‘Aha, I see you are wearing a Shirin Guild sweater,’ and those not in the know want to know where they can buy one like it … Like Rei Kawakube of Comme des Garcons and Issey Miyake, Shirin Guild derives much of her inspiration from the traditional indigenous clothing she saw all around her as a child. ‘I always think,’ she says, ‘of those scarecrows by the Caspian Sea wearing great black square coats’. She uses the bold shapes and strong line (‘often peasants simply cut and fold the fabric and then cut holes in the middle of the head’) that are the hallmarks of the clothing worn by the working people of Iran and this gives her pieces both a strong identity and great comfort.”

14. A feature of Mrs Guild's designs is that, in their essentials, they do not change from year to year, but comprise a perennial collection. Jennifer Guerrini-Maraldi wrote this on 16 May 1996 in Country Life, when reviewing Mrs Guild's summer 1996 range:

“… Shirin Guild is renowned for her casual, easy-to-wear clothes and is causing great excitement among those in the know in the fashion world. Each collection is made up of the same basic shapes, with colour and texture varying to suit the season.”

15. Mrs Guild's garments command a high price, in the area of about £1,000 a garment for the sweaters and cardigans, less for the shirts. So do Mr Nabavi's. They both operate at the high end of the fashion market. It is not said that he has copied her designs and sold inferior items at a fraction of her price. What is said is that he has trespassed into her niche market and targeted her outlets and customers and so damaged her position. Unlike Mrs Guild, he said he has not used a square shirt as part of his core collection since 1997, and he said he only ran his crossover V-neck sweater for one or two seasons, so that it too is not part of his core collection. His cardigan has remained part of his core collection, although he has made variations to its shape. It sells both to men and women, but (like Mrs Guild's cardigans) buttons the men's way, which he admitted was something he was doing when he was working with Mrs Guild, and which he said had a lasting influence on him. Mr Nabavi denies that he has copied any of Mrs Guild's designs. He says he has evolved his own designs over the years. A feature of this case is that the concept of Mrs Guild's designs is so simple and basic that anyone designing a garment with the like concept in mind is likely to produce a garment that is at least very similar. There is no doubt that Mr Nabavi's garments are very similar. But whether he has actually copied Mrs Guild's designs is in issue. 16. Mrs Guild's case as to the origin of the three designs in issue is essentially as follows, although I will in due course have to relate the evidence about this — the facts about their origin are also in dispute. A factor that has made this case difficult to deal with is that Mrs Guild has been unable to produce any of the original design drawings in which she claims copyright and design right. All she has done is to produce some garments she made in or after 1996, assert these were (subject to minor variations) based on her original designs and complain that Mr Nabavi has copied her designs. One of the difficulties is to identify precisely what designs it is in respect of which she claims to be entitled to protection. The point illustrated by the fact that part of the relief she seeks, formulated after the end of the trial, is injunctive relief claiming copyright in “works represented in the garments shown in the photographs annexed hereto” and design right in the “designs incorporated in the garments depicted in” what I also understand to be the proposed photographs.

The shirt

17. Garment JJ is an example of Mrs Guild's shirts. It was apparently created in 1997. It is in cream viyella. The body is 101 cm wide at midpoint and 10.5 cm wide between, and at the top of, the two armhole seams. Its length varies from 71 cm at the sides to 73.5 cm from the side of the neck to the hem. The sleeves are 26.5 cm long. When the shirt is laid flat, the upper line of the sleeve is a continuation of the line of the shoulder of the shirt, but after about 10 cm it curves slightly down towards the cuff which is 5.5 cm long and about 11 cm wide. The width of the armhole is 25.5 cm, and the lower line of the sleeve slopes up towards the cuff. The sleeve is therefore markedly tapered from armhole to cuff (about 26 cm to about 11cm). The shirt has a conventional collar, is buttoned conventionally down the front with seven buttons 10 cm apart (centre to centre), and has a hem of about 2cm at the bottom. “Shirin Guild” appears on a label inside the collar. 18. Garment KK is a grey linen shirt, produced by a Mrs Guild for the spring/summer season of 1997. Its design is essentially the same as garment JJ. It is 100 cm wide, and its length varies from 72 cm at the sides to 74 from the side of the neck to the hem. The sleeves are 26 cm long, and the cuffs are 6 cm long. The armholes are 26.5 cm wide. It is similarly buttoned. 19. Mrs Guild said in chief that she sketched the design for her shirt in the summer of 1991. Its origins lay in the ideas that evolved in the design drawings and garments she made in the 1980s, which she has long since discarded. She said she and Mr Guild met Bruce Oldfield, the designer. Her offered her some advice, gave her the name of Mario Latronico (a shirt maker) and told her to send instructions to his (Mr Oldfield's) pattern cutter. Mrs Guild cannot recall the cutter's name, or whether the cutter (whom she never met) was a man or woman. But she says she gave him/her precise instructions by cutting and folding bits of cloth, neck collars and cuffs and pinning them exactly as she wanted. In about November 1991 the cutter returned the patterns, which Mrs Guild said she then gave to Mr Latronico. He then produced samples of garments for which Mr Guild paid in 1992. Mrs Guild said that during 1992 she made “the same shirt” (precisely which is unclear) and that since then, subject only to minor stylistic changes over the years, it has remained unchanged. She produced in evidence no drawing or design for the shirt. Garments JJ and KK are said to have been made to the original design — although they reflect between themselves minor measurement variations. 20. Garment Z is an example of a Nabavi shirt said to have been copied from Mrs Guild's design for garment KK. It was purchased in 1997. It too is in cream viyella. Its mid body width is not agreed. The Page5 claimant's measurement is 98.5 cm, Mr Nabavi's 97 cm, and my own attempts at measurement (not as easy an exercise as it might seem) pointed if anything to a slightly narrower measurement than that. In the circumstances I propose to prefer Mr Nabavi's measurement and find that it is 97 cm wide. Its width at the top — between the armhole seams — is 94 cm. Its length is 77 cm at the sides and 78 from side of neck to hem. Its sleeves are 34.5 cm long. One cuff is 5.5 cm, the other 6 cm long. The armholes are on average 23.25 cm wide. The upper line of the sleeve follows a line similar to that of Mrs Guild's shirt, and the lower line also slopes up to the cuff, so that the sleeve is of a similar tapered style, although the degree of tapering is slightly less than that of the Guild shirt. The collar is similarly conventional, its label reads “Eskandar”, the shirt buttons conventionally down the front with seven buttons (which are slightly smaller than the Guild buttons, and measure 10.5 cm from centre to centre) and the hem at the bottom is about 2.5 cm wide. 21. Garment BB is also a Nabavi shirt, in dark grey linen, purchased on 13 May 1997. Its design is essentially the same as Mrs Guild's garment Z. Its width is 96 cm, its length on average 76.25 cm, its sleeves are 36 cm long, and its cuffs are 6 cm long. Its armholes are 23 cm long.

The sweater and cardigan

22. I have referred to Mrs Guild's meeting with Mrs Robertson in about 1989. Mrs Guild said that in 1991 Mrs Robertson telephoned her and said she could now make garments of the desired width. Mrs Guild said she sent her some hand drawings (none of which she now has) and some swatches of Todd & Duncan colours. She said she sent Mrs Robertson precise specifications (in terms of width and detailing) for a sweater and a cardigan. She wanted samples of long and short crossover V-neck sweaters and cardigans. They were to be in red, grey and corn cashmere. 23. Mrs Guild said she instructed Mrs Robertson to produce these samples before Mr Nabavi had anything to do with the manufacture of garments for her. She said he had no part in the manufacture of her cashmere garments, save that he did visit Mrs Robertson in order to assist in the rectification of various faults in the samples. She said the first samples took some two to three months to produce and arrived in early 1992. Mrs Robertson's evidence, which I accept, was that she produced the first sample sweater and cardigan for Mrs Guild in about March 1992, and an invoice for two of the first samples was dated 6 April 1992. If Mrs Guild's two to three month time scale is about right, this would suggest that her instructions to Mrs Robertson were probably not given until about the end of 1991 or early 1992. By that time Mr Nabavi was on the scene and was engaged in obtaining sample sweaters and cardigans in alpaca from a manufacturer called Havelock Knitting (Grimsby) Limited (“Havelock”). Again, the original drawings which Mrs Guild says she created in 1991 no longer exist, and Mrs Robertson confirmed that she no longer has any of the drawings or specifications produced for the original sample garments: she said she returned them to Mrs Guild in 1997 for use in this action, although they have not been. She could not recall whether the drawings Mrs Guild had produced to her had been done neatly with a ruler (Mrs Guild's said that is how she always did drawings for production to a manufacturer), but she agreed Mrs Guild was very specific about how she wanted things done. Mr Nabavi's evidence was that it was he who drew the drawings provided to Mrs Robertson, which were based on the alpaca pieces that he had earlier arranged for Havelock to produce. Mrs Robertson's evidence was that Mrs Guild introduced Mr Nabavi to her in early 1992, telling her that he was very talented, that she needed his technical expertise, and that he would be dealing with her knitwear production in future. 24. Mrs Guild's case is that since 1992 various minor changes have been made to the design of the cardigan and sweater. The best her pleaded case can do is to identify garments she said were made to the designs in or after 1996. Garment LL is a black crossover (right over left) V-neck sweater she produced for the 1997 spring/summer season. It is 90 cm wide under the arms, and approximately 83.5 cm wide at the bottom. Its length is on average 62.75 cm. Its sleeves are 28 cm long and taper from 21.5 cm wide at the armhole to 11 cm at the end of the cuff, with the upper line of the sleeve continuing the line of the shoulder. The cuff length is on average 7.4 cm. It has a rib at the bottom about 7.5 cm wide. The neck welt is on average 6.5 cm wide. 25. Garment AA is a Nabavi garment said to be a copy of this. It is a black crossover (but left over right) V-neck sweater. Its width under the arms is 92 cm and its width at the bottom is about 84.5 cm. It is uniformly 64.5 cm long. The design and size of the cuffs, hem and collar are similar to those of the Guild sweater. The sleeves, from armhole centre (which have the appearance of being inset about 13 cm into the body of the sweater, so that in this respect the design is different) to cuff end are on average 36.25 long. The armhole width at the line of the edge of the body of the sweater is also about 21.75 cm, the length of the sleeve from there to the end of the cuff is about 25 cm and the length of the cuff is 11 cm. The body rib is about 7 cm wide. The neck welt is 6.5 cm wide on average. 26. Garment NN is a grey, crossover (right over left) V-neck sweater, created by Mrs Guild for the autumn/winter season of 1997/98. It is about 89 cm wide under the arms and about 86 cm wide at the bottom. It is about 68.5 cm long at the sides and 67.5 cm long from shoulder to the bottom. Its rib is 12.5 cm wide, and its cuffs 9.5 cm long. Its sleeves are 33 cm long and taper from 23.5 cm at the armhole to 13 cm at the cuff end. The average line of the sleeve continues that of the shoulder. The neck welt is on average 9 cm. 27. Garment DD is a brown/grey crossover (left over right) V-neck sweater produced by Mr Nabavi for the autumn/winter season 1997/98. It is 84.5 cm wide under the arms and about 82 cm wide at the bottom. Its length is on average about 68.25. Its rib is about 8 cm long and its cuff about 8.5 cm. Its sleeves are 34.5 cm long and taper from about 25.75 cm wide at the armhole to about 11.25 cm wide at the cuff end. The upper line of the sleeve continues that of the shoulder line. The neck welt is on average 8.5 cm wide and so is the body welt. 28. The overall shape and design of garments LL and AA are undoubtedly strikingly similar, and although the style and measurements are not identical and anyone looking at the two together would be likely to assume that the design of one was influenced by the other. The same can be said of garments NN and DD. 29. Garment HH is a brown cardigan produced by Mrs Guild for the autumn/winter season 1996/97. It buttons down the front with five buttons, which do up the men's way round and are 8.5 cm apart, centre to centre. It is 98.5 cm wide at the bottom and its length ranges from 75 to 77.5 cm. It has a rib 14 cm wide. Its sleeves are about 29.5 cm long, with their width of about 23.75 cm at the armhole tapering to about 11.75 cm at the end of the cuff. The cuff is 10 cm long. The upper line of the sleeve continues the shoulder line. The depth of the V from centre back neck to V opening is 27 cm and that from the centre back neck to the first button is 35.5 cm. 30. Garment Y is said to be the Nabavi copy of this. It is buttoned down the front with five buttons, which also do up the men's way, and which are 10.5 cm apart, centre to centre. It is 95 cm wide at the bottom and its length is uniformly 86 cm. Its rib at the bottom is 5.5 cm wide. Its sleeves are 31 cm long, their width of 23 cm at the armhole tapering to 14 cm at the end of the cuff. The cuff is 5.5 cm long. The depth of the V from centre back to the V opening is 21 cm and that to the centre of the first button is 28 cm. Again, there are minor styling differences, and differences in measurement, but the overall shape and design are very similar to the Guild cardigan and anyone looking at both together would be likely to assume that one was influenced by the other.

Mr Nabavi: general background

31. Mr Nabavi was born in Teheran in 1963 of a Persian father and an English mother. He lived in Teheran until 1979 when his family moved to England following the outbreak of the revolution. He was educated at the International School in Teheran, Uppingham School and University College, London, where he obtained a Geography degree. 32. He learnt basic knitting skills from his grandmother when he was about 10, but has been largely self-taught. He has always been interested in anything creative, and has gone through phases of doing photography, needlepoint, macramé, painting and interior decoration. He has been designing knitwear since about 1987. He bought a knitting machine and worked from his parents' house. He was at that time inspired by designs for Persian carpets and oversize clothes. He had seen such clothes daily during his childhood in Iran as well as the oversize designs by Joseph. He said that in about 1989 he started making sweaters both with a plain design and with floral or Persian carpet designs, which he sold to Liberty and Harrods in the winter of 1990. He also sold cashmere sweaters and handknits. He had not by then developed a specific direction as a designer and was always having new ideas. His aim was to make knitwear that was easy to wear, elegant and interesting. 33. Mr Nabavi said that at about the end of 1990 or early 1991 — before he met Mrs Guild — he started a scrapbook in which he pasted pictures of garments he liked. One photograph he said he put in it at this time (on page 4) was taken from a German magazine and was of a very wide crossover V-neck cable sweater he liked and which he said followed the same feeling as the garments then Page7 being produced by Issey Miyake, Romeo Gigli, Zoran and Joseph, and which he said pre-dated the time he met Mrs Guild. He said he stopped putting pieces into the scrapbook at about the end of 1993 or early 1994. He never showed it to Mrs Guild during his association with her. Its existence during or before the time of that association was disputed by Mrs Guild, but Mr Nabavi was adamant he had started it by 1990. 34. Mr Nabavi ran his business, as a sole trader, from premises at 134 Lots Road, London SW1, which he started renting in August 1990. He had a part-time assistant, a Danish woman called Marie-Louise Toft, who helped him about three days a week, and his mother also helped. At this early stage the business was not achieving much success, and Mr Nabavi says he was merely making ends meet. He said that most of what he sold was handknitted although he also sold ready made cashmere, wool and cotton sweaters which he bought in. He knitted most of the samples for his designs himself, but he also employed knitters. One of them was Rose Butler. 35. One issue in the case is whether, before he met Mrs Guild, Mr Nabavi was, as he claims, making sweaters of a similar unusual width — up to 100cm — as those of the garments Mrs Guild claims he has copied. Mr Nabavi said he was. He also claims that there was nothing particularly unusual about garments as wide as this. I have referred to the influence he said Joseph's designs had on him, and I heard evidence from Martin Wilson, a director of Stevenage Knitting Company Limited, which has manufactured knitwear for decades and has been doing so for Joseph since the early 1980s. These included designs with a width of greater than 90 cm under the arms. Mr Wilson identified garment QQ as such a garment, a large black Joseph sweater which his company had hand frame knitted (that is, using a hand operated machine) in about 1985, and which they called a large Sloppy Joe sweater. They were primarily directed at the women's market, and were generally made in one size but might in different seasons be sold in short and long versions. He said some of these large sweaters were produced in hundreds to sell at Joseph Tricot stores throughout the UK, Paris and New York. He said his company continued during the early 1990s to manufacture knitwear based on large proportions for Joseph. QQ is 86 cm wide under the arms and 77 cm at the bottom. Its length is on average 60 cm. Its sleeve lengths are on average 47.75 cm. Its armholes are 25 cm and its sleeve widths at the cuff are on average 26.5 cm wide. 36. Mr Nabavi put in evidence a statement from Todd Irving, a manager between 1993 and 1996 of Zoran's Washington DC base. Zoran started designing and selling garments in the early 1970s. Mr Irving said that “the big square shape design” has been a staple of Zoran's collections for more than 20 years, and he referred in particular to a Zoran cashmere sweater produced between 1984 and 1992 which he recalled was at least 60 cm wide. He also referred to the creation by Zoran of alpaca knitwear garments intended to have a “drape-like effect” and which he recalled as being at least 75 cm wide. Mr Nabavi produced garment DD, a Zoran cardigan he said dated from the late 1980s, which is 67 cm wide and 80 cm long. He also produced other wide garments by other designers. FFF was a loose, wide-shaped cardigan designed by Nicole Farhi. It is 78 cm wide at the arms and 64 cm at the bottom. Its sleeve length is on average 41 cm, tapering from about 24.5 cm at the armhole to about 12 cm at the cuff end. Mr Nabavi said it was given to him by someone who claims to have purchased it in the early 1990s. GGG is an Issey Miyake garment, a brown, wide, so-called plantation shirt dress — a shirt made into dress length. Its width ranges from 91 cm at the arms to 102 cm at the bottom. The sleeve length is 39.5 cm, tapering from 29 cm wide at the armhole to 10 cm at the cuff end. Mr Nabavi said it was given to him by a client who bought it in the late 1980s. HHH is another Miyake garment, also a dress shirt. Its width is 89 cm at the armholes, 84 cm at in the centre and 89 cm at the bottom. Its sleeves are 35.5 cm, tapering from about 29 cm at the armhole to 10cm at the cuff. EEE is a Miyake coat, 110 cm wide under the arms and 92 cm at the hem wide, with short sleeves 25.5 cm long tapering from about 30.25 cm at the armhole to about 23.25 cm at the cuff end. 37. As for Mr Nabavi's own knitwear, he said that, before he met Mrs Guild, he made two patterns for square chenille sweaters. He produced one pattern in evidence, which he said was for a 115 cm wide, short chenille sweater, although he said the width of the finished product would vary from 100 cm to 120 cm because of the variation in knitting tension with handknitting. He had been unable to find the other pattern. He said that down to 1994, when he stopped making them, he sold about 50 wide, short sweaters and over 100 long ones. He said he also sold between 15 and 20 wide grey tweed men's sweaters, which he produced in black and brick. He said many, but not most, of his sales were to friends and relatives. He was unable to produce any documentation proving he made any such sales before he had parted from Mrs Guild. 38. He said that the chenille and tweed sweaters were the only wide garments he made before meeting Mrs Guild. Their width ranged from 70 cm to 115 cm and they were based predominantly on a square shape, of uniform width top to bottom. He identified garment WW, a burgundy sweater, as made in accordance with the pattern he had produced in evidence, subject to minor variations to the sleeve. It measures 116 cm under the arms and 101 cm across the bottom. Its length averages 56.5 cm. Its sleeve lengths average at 26.25 cm. Its armhole is 24 cm wide and the sleeve tapers to 15 cm at the cuff end. It has neck and body welts of 8 cm wide on average. Mr Nabavi said that the tapering in the body width was not part of the design (it should have been uniform), and that this particular garment was put aside as a reject. He dated it as a design he was doing from about early 1990, before he met Mrs Guild. Miss Marie Louise Toft, who met Mr Nabavi socially in 1989 and started working for him part-time in the summer of 1991, gave evidence and confirmed that she recalled seeing garments like WW in the late 1990s or early 1991. She had a clear recollection of this, because she said she owned quite a lot of them. She still has a brown one, which she said was in her sister's possession in Denmark, and had a cream one she gave to a friend. 39. Mr Nabavi produced garment SS, a chunky wool sweater he said he designed in either 1990 or early 1991, and of which in 1991 he produced about 12 for Liberty's ladies department and also sold others privately to various individuals. He said he also produced the same garment in cardigan form. He said he was selling to Liberty before he became involved with Mrs Guild (support for which was provided by a Liberty remittance advice dated 13 November 1990). This sweater was made to a slightly different pattern (not one produced in evidence), and was a little narrower than Mr Nabavi's chenille and tweed sweaters. Its essential shape was the same, and he said the sleeves were his standard ones, at right angles to the body, but longer than on the burgundy coloured chenille. He said Mrs Butler also knitted this typed of garment for him. 40. Mr Nabavi identified garment XX as having been knitted to the same pattern as WW, but by a better knitter. He pointed out that it was not as loose and floppy as WW but was knitted with a good, or normal, tension. It is in burgundy chenille and is 91.5 cm wide under the arms and 82 cm at the bottom. Its length is 58 cm. Its sleeves are on average 27.25 cm long and taper from about 25.27 cm wide at the armhole to about 12.5 cm wide at the end of the cuff. Its neck welt is 8 cm wide, and its body welt 7.5 cm. He said it would have been made after he parted from Mrs Guild. Miss Toft was shown XX, and said she regarded it as more or less the same as WW. Mr Nabavi produced garment YY, a burgundy chenille sweater, which he said was also made to the same pattern and was also a reject. He could not date its creation, save that it was after he parted from Mrs Guild. Garment YY is 114 cm wide under the arms, 102 cm wide at the bottom, and about 57.75 long. Its sleeves are about 26.75 cm long and taper from an armhole width of about 24.25 cm to 14 cm at the cuff end. Its neck welt is 8 cm and its body welt 7.5 cm. He produced garment ZZ, another burgundy chenille garment, which he said was also made to the same pattern, save that it was shorter, as would have been specified by a note on the pattern. It is 106 cm wide under the arms, 88.5 cm wide at the bottom and 56.5 cm long. Its sleeves are on average 24.25 cm long and taper from 25 cm wide at the armhole to 14 cm at the cuff end. The neck welt is 7.5 cm and the body welt 7 cm. 41. Mr Nabavi produced garment UU, a chunky chenille, green handknit sweater he said he designed in 1990 or 1991, again before he met Mrs Guild. That was knitted according to a pattern different from the one he had produced, with a fussier front involving more lacing and patterns. Its width is 78.5 cm under the arms and 80 cm at the bottom. Its length varies at different points from 71.5 cm to 76 cm. The armholes are on average 30 cm wide, and the sleeves are on average 36 cm long, tapering to a cuff about 15 cm wide, with the lower line of the sleeve sloping up to the cuff. Its neck welt is on average 10 cm and its body welt 5 cm. He said he had sold it to a customer, Anne Mollo, who returned it at the end of 1992. He agreed that, as he only met Mrs Mollo through Mrs Guild, the sale did not pre-date the Guild era, although he said that this sweater was part of his pre-Guild stock. He said he had opened up this stock soon after parting from Mrs Guild, which is when he sold it to Mrs Mollo. 42. He produced garment VV, a grey tweed man's round neck sweater knitted by Mrs Butler in about 1994, but based on a design (again differing from the produced pattern) that he had made in 1990 or 1991. It is 83 cm under the arms and about 79.5 cm at the bottom. Its length averages about 66 cm. The armhole length is about 25.5 cm, the sleeve length is 37 cm, and the sleeve tapers to a cuff width of about 13.5 cm. The upper line of the sleeve is a continuation of the shoulder line, tapering after about 25 cm slightly down towards the cuff. It has a rib at the bottom about 6 cm wide. The neck welt is about 5 cm wide. It has no cabling at the front and is in a plain stitch. Mr Nabavi explained that this was the kind of stitch a machine can produce and said it was moving towards what he was later doing by way of machine knits. Page9

43. Mr Nabavi identified garment AAA as also one of his chenille sweaters whose design pre-dated his meeting Mrs Guild. It is in blue/green, is 90 cm wide under the arms, 86 cm wide at the bottom and 61 cm long. Its sleeve length is 28 cm and the sleeves taper from about 22.75 cm wide at the armhole to about 15.25 cm wide at the end of the cuff. Its neck welt is 7 cm wide and body welt 6.5 cm. 44. Garment BBB is a handknitted sweater, in cotton, made in accordance with a pattern Mr Nabavi said he designed it after he parted from Mrs Guild, probably in 1993. It is 96 cm wide under the arms and about 82 cm at the bottom. Its sleeves are 30 cm long, tapering from a width of 25 cm at the armhole to about 10.75 cm at the end of the cuff. 45. Garment CCC is a cashmere, “slit-back” cardigan (the front cut starts from just below the rear of the collar), again based on the wide, square shape. Its width at the welt is 87 cm and its length is 72 cm. The sleeve is 29 cm long, tapering from 26.5 cm wide at the armhole to about 18 cm at the cuff, with the upper line forming a continuation of the shoulder line. The body rib is about 5.75 cm. It was the first cardigan he designed and was made by Belinda Robertson after he parted from Mrs Guild. It has no buttons and is rather more like a jacket cardigan. 46. Rose Butler gave evidence about what she knitted for Mr Nabavi. She said she has been knitting sweaters for him since 1986 and that since 1989 these included sweaters with a width varying between 85cm and 110cm. She said that in 1990 and 1991 she knitted about 50 wide cable chenille sweaters from one of his patterns. She produced the pattern she had used and a copy invoice dated 17 April 1991 for six sweaters she had knitted. One of the invoiced items is described as a “Ruth”, which was one of the wide cable chenille sweaters. Another one is a “Floppy Chenille”, which was a thicker chenille sweater with bobbles. Mrs Butler identified garment YY as a wide Ruth burgundy chenille which she or one of her team had knitted. She was confident it had been knitted in accordance with the pattern provided to her by Mr Nabavi — his manuscript on it described the design “… as extra wide, may need circular needles.” She identified garment WW as also having been knitted in accordance with the pattern. She could not say when either YY or WW was made, but said these garments were the same as the ones she was knitting for Mr Nabavi in 1990 and 1991, both in terms of size and colour. She remembered in particular that they were very wide. She said she did not personally measure the wide sweaters she knitted, and said that their width varied according to whether the knitting was tight or loose. She said she visited Mr Nabavi's premises on two or three occasions and saw that the size of his wide garments was larger than she or her knitters had originally produced for him. She said Mr Nabavi explained that this was the result of the steaming he always did to these handknits. She also recalled knitting for Mr Nabavi sweaters with big, bold designs of animals and flowers. 47. I also heard evidence from Margaret Smith, a knitter whom Mrs Guild called. Her opinion was that garment WW, although knitted very loosely, could have been knitted according to Mr Nabavi's pattern, but she thought garment YY had not been made according to it. She said that, for every nine of her “loops” — or stitches — in a sample piece of knitting which she carried out according to the pattern, garment YY only had six per cable. She thought it must have been knitted on much bigger needles than those required by the pattern and had been knitted very loosely. She said in re-examination, however, that garment WW was pretty similar to YY. Mrs Butler, for her part, counted eight stitches on the cable of YY, which is what the pattern required, and also counted eight stitches on the sample knitted by Mrs Smith. 48. Soussie Kerman, an Iranian friend of Mrs Guild, whom she has known since they were children, also had some knowledge of Mr Nabavi and his work and recalled going with her mother to a pre-Christmas sale of knitted garments which he had produced. She said this was in the period from the late 1980s to early 1991. She said the garments were made of coarse wool and were often brightly patterned. She said they resembled in shape an ordinary jumper that one might buy from Marks & Spencer. She said she saw no garments such as, for example, ZZ.

The business relationship between Mrs Guild and Mr Nabavi: 1991

49. On 21 March 1991 Mrs Guild went to a party given by Ali Rastegar to celebrate the Persian New Year. She said Mr Rastegar introduced her to Mr Nabavi, and suggested that she should help him out and give him some work. She said he described himself to her as a “knitwear expert”, and told her he had heard she was designing. Mrs Guild replied that most of her collection was to be based on knitwear, to which Mr Nabavi responded that he could “take care of my knitwear”, which Mrs Guild understood as meaning that he meant to manufacture her collection. She said she would be happy to meet him to discuss it and he gave her his address. She says her friends encouraged her to give him some work. She learnt that he produced heavily patterned hand-knitted garments. 50. The details of that account differ from those recalled by Mr Nabavi, which was that it was his mother who introduced him to Mrs Guild at the party, although he agrees they discussed knitwear for about 15 minutes. He said she discussed her clothes philosophy and showed him the designer items she was wearing — he recalled she was wearing Issey Miyake trousers. She explained she was looking for someone to create a knitwear range for her, including production and design, because she had no experience in it. She wanted to put a collection together and needed help. Mr Nabavi said he derived the impression that she had little experience in the fashion business, which was no doubt true: she may have had big ideas, but was still a beginner. He says she told him she had simply dabbled in making clothes based on shapes she liked. He says the matter was left on the basis that he might have the expertise to help her on the knitting side of her venture. 51. By November 1991 Mrs Guild and Mr Nabavi had established a business relationship. Its essence was that Mr Nabavi's primary task was to obtain from a manufacturer samples of sweaters and cardigans in alpaca according to the design Mrs Guild wanted. The evidence as to the establishment of this relationship painted a confused picture as to the precise course of events; and there are differences between Mrs Guild's and Mr Nabavi's respective accounts as regards matters of importance. 52 Mr Nabavi said that a few weeks after the Rastegar party Mrs Guild came to see him at Lots Road. He said she wanted to look at his knitwear and assess its quality. He said she loved it, in particular the design of his big, loose cable sweaters. She said she wanted to buy one for Mr Guild and Mr Nabavi said he gave her a grey handknitted sweater to take home for Mr Guild to try, and which he kept. It had cables down the side, and was a big, loose sweater. He said he also gave her one of his wide, square handknitted grey men's cable turtle sweaters, because he said she expressed an interest in including some of his men's designs in her collection. Mr Nabavi recalled it was a square sweater 88 cm wide. He said Mrs Guild never — either on this or on any subsequent occasion — showed him any prototype jersey she had designed herself: he never saw any oatmeal jersey (of which garment EE is said to be a black replica). 53. Mrs Guild appeared to have no recollection of this meeting, and she denies that Mr Nabavi ever gave her any of his sweaters. Her best recollection appears to be that the first meeting they had was on 18 September 1991, at Mr Nabavi's Lots Road premises, and that there had been no contact in the meantime. 54. There undoubtedly was a meeting on 18 September — Mr Nabavi made a short note of it. Mrs Guild said it was in a small office with a communal meeting room. She said in chief she was wearing a bat-wing sweater and a “tent-like” coat by Romeo Gigli, the Italian designer. In cross-examination she accepted that in 1991 she owned many garments made or designed by Issey Miyake, which she agreed were quite loose fitting. She also said she owned many garments designed by Gigli, mostly coats and evening gowns. Initially in her cross-examination she said she could not remember whether she owned any other Gigli garments. Later in her oral evidence she agreed she also owned — and still owns, but did not produce in evidence — a Gigli sweater, although she emphasised that it is a tight, close-fitting one, and so reflects a departure from her usual preference for tent-like clothing. Gigli sweaters play a role of central significance in the case, because Mr Nabavi claims that it was a wide, loose, square shaped Gigli sweater from which Mrs Guild copied the basic design for her own garments. Mrs Guild said in chief that she also took with her to Lots Road a cut and sew jersey garment resembling the one she had earlier shown Mrs Robertson. She denied in chief that any of those garments bore any relation to the garments she was proposing to produce, but I interpret her as referring only to what she was wearing, not to the cut and sew garment. She said in chief that she left that garment and also some drawings with Mr Nabavi and asked him if he could work with these garments and he said he could. She says they talked about producing long and short versions of her cross over V-neck sweater and cardigans in alpaca and linen. She said it was clear to her Mr Nabavi had previously only produced hand-knitted garments and she asked how he proposed to do the production work. She says he replied he knew everyone in the industry, although he did not mention any names. She says her friends had recommended her to him, she trusted him and the meeting broke up with Mr Nabavi saying he would see if the garments could be made in this country. Page11

55. In cross-examination, Mrs Guild emphasised that the meeting, which she thought lasted 30 or 40 minutes, never condescended to any detail. She said that she showed Mr Nabavi what she was wearing, which comprised layers of designer clothes by Comme des Garcons, Issey Miyake, Yohji Yamomoto and Romeo Gigli. She described them as “tunicky things, loose”. She said she also had with her the jersey top she had made. She said she wanted to talk to see if Mr Nabavi would like to do the knitwear for her business, which she was proposing to expand: she was one Iranian who wanted to give work to another. She said she had no specific ideas as to what garments he might be able to make for her — they would be whatever she wanted. The point of the visit was to talk. She said she did not see any of his work. She denied he ever gave her a sweater for her husband. She said that she showed Mr Nabavi “her style” — meaning the way she was dressed — and that he responded that he had never seen any clothes like them. She said he was to make whatever knitwear she required but the discussion never descended to anything more precise. She said she told him Mrs Robertson was her cashmere manufacturer, although if she did it was slightly premature, since Mrs Robertson had not yet produced anything for Mrs Guild, and only produced the first samples for her in March 1992, and I regard it as improbable that Mrs Guild had yet given any instructions to Mrs Robertson. Contrary to her evidence in chief, Mrs Guild said (at least initially) that she did not give any drawings to Mr Nabavi at this meeting. She said they just talked. She told him “This is what I want. This is how I want my things”, and Mr Nabavi she he could produce it. She said that the “very simple look” she wanted was the square shaped one, but she denied explaining it to Mr Nabavi. She did, however, say that she would be in touch with him and tell him the qualities she wanted — alpaca, linen, or wool and alpaca mixtures. She said her cashmeres were already lined up with Mrs Robertson. 56. The net effect of her evidence in cross-examination about that meeting appears to be that the closest Mrs Guild got to explaining to Mr Nabavi what it was she had in mind for her own collection were garments of the type she was wearing. She was no more precise than that, and she denies having yet seen a single sample of Mr Nabavi's work. Yet she was to get in touch with him with a view to giving him details of the fabric she wanted to use. 57. Mr Nabavi's evidence was that the initial meeting back in the spring had been very informal and that the one on 18 September was the first at which they discussed what they might work on. He made rough manuscript notes of the meeting at the time and typed up his note of it (and also of a later meeting on 7 November) on to a single sheet. The note of the 18 September meeting is short and not very explicit but records that they discussed various ideas, including short handknit sweaters and a cardigan. It makes a reference to “Havelock” (under the heading “factory”) and to a discussion of woven shawls. Havelock is the clothing manufacturer referred to in paragraph 23 above. Mr Nabavi said he had been to Havelock before, when working for a Mr Draper, and the context in which it was mentioned was Mrs Guild's expressed interest in having pieces machine knitted. In his witness statement Mr Nabavi said she brought with her two pieces, a Romeo Gigli sweater with a crossover V-neck and an Issey Miyake jacket. He said she told him the shape of her knitwear was to be based on the Gigli sweater, and they discussed whether it was feasible for her to make it. He said she asked him to take measurements of what she wanted, based on the Gigli sweater and the Miyake jacket. He recalled she had also brought some shawls with her, and that there was some discussion about the production of shawls, but that idea did not proceed. The only one that did was the production by Havelock of machined knitted garments. Mrs Guild said Mr Nabavi's note of this meeting was inaccurate. She said that, if handknits were discussed at all, it would only have been about a small gilet. She denied that Havelock was discussed. 58. In his oral evidence in chief, Mr Nabavi departed somewhat from this and said that at the 18 September meeting Mrs Guild did not bring any garments with her apart from what she was wearing. He said that (whether or not she was then wearing the Gigli sweater) she was wearing similar shaped pieces and she indicated her desired style by reference to them. She was wearing “very baggy, very loose ethnic style trousers, the same she wore the day I met her. She said they were designed by Issey Miyake, and loose tops. She had a coat with her …”. He said she identified her desired sweater style as “wide”, saying “This is the kind of thing I want”. He recalled her wearing something wide, but not whether it was a sweater. He did not recall her wearing any bat-wing types garments. He said she did not show him any drawings at this meeting. 59. The next meeting was on 7 November 1991, also at Lots Road. In cross-examination, Mrs Guild said its purpose was to give Mr Nabavi the job, to tell him what she wanted so that he could go to the manufacturers. She said they might have spoken a few times in between, although she did not suggest that they actually got down to the business of discussing any matters of detail. She could not remember if she took anything to this meeting, but if she did she thought it would have been the same oatmeal sweater she had taken to Mrs Robertson in 1989. She said they had a good deal of social talk about mutual friends. She did not think she took any drawings to the meeting, but thought she may have done some drawings at it. She said that she did give Mr Nabavi some drawings when he went to the factories. She said he told her he was ready and she told him she wanted him to make square shaped sweaters and cardigans in alpaca and pure linen, and she thought pure silk too — but she said it appeared that he did not know what alpaca was. She said she then went home. 60. She did not remember if she had told Mr Nabavi the dimensions of the garments beyond making it clear that they were all to be of the same width, but of different lengths: short, mid-length and long. She thought she would have given him these when she did the necessary drawings at Montrose Place, where she could use her own special paper. This would suggest, therefore, that she had not yet done any drawings for her garments. She thought it might have been at their next meeting that Mr Nabavi actually agreed to buy the material for the initial samples. She said there was no discussion of price: Mr Nabavi was to write to her about that. He was also to decide who was to do the manufacturing. Mrs Guild said she first gave Mr Nabavi the details of her designs at a later meeting at Montrose Place. She said she presumed she had a lot of designs, but she gave him two drawings for the sweater and the cardigan. She would write in the different lengths on the drawings — she would not make three drawings for the different lengths of the garment. She said her drawings for manufacturing purposes would always be done with the aid of a ruler. They would show the width, the length of the sleeves, the cuffs, the armholes, the neck, the drop of the front, whether it was V-shaped or curved. 61. Mr Nabavi's note of the meeting of 7 November 1991 records that the project by then was to machine knit five types of garment and that samples of each were to be made: two square sweaters (short and long, with V-necks); two cardigans (short and long); and a gilet (a short, sleeveless cardigan). The note also refers to some large scarves. It refers to the material to be used, but no measurements, although it records that “(copies of patterns enclosed)”. It records that Mrs Guild “left 5 sweater with us and 4 scarves/shawls”. 62. Mr Nabavi was unsure what these “patterns” were since he said Mrs Guild had not yet shown or produced any drawings to him. He presumed it must be a reference to the garments she left with him (which he said did not include any sample garments she had made). He said these were all tagged with numbers and one was the Gigli sweater. This is the occasion when he first clearly recalled seeing this, which he said was of a reddy/rust colour with a crossover V-neck. It had ribbing on the bottom and on the cuffs. It bore a Gigli label. He said that the proposed long V-neck sweater was intended to be a copy of it. He said “She [Mrs Guild] asked me to make a garment in exactly the measurements of the Romeo Gigli garment, yes she did”. He said he would have measured it — but could not recall doing so, nor could he recall something which Miss Toft recalled, namely that during the meeting a drawing around the Gigli sweater was made. He was not consistent as to whether the Gigli sweater was a short or long one, suggesting at different points of his evidence in chief that it was both, although I understood his more considered, and final, recollection to be that it was a long sweater. He said Mrs Guild also brought in other designers' pieces “to show the general look and feel”, although he did not say what they were save that one was or may have been a Miyake piece. He said the pieces she left were “for reference, for crossover V-neck and so on”. He could not remember her leaving sample cardigans with him, only sweaters. He said the cardigan was also to be based on the Gigli sweater, with such modifications as were necessary to make a cardigan — essentially cutting away a V at the front and a slit up the front to allow the cardigan band to go in. He no longer has the Gigli sweater, saying it was returned to Mrs Guild. He has carried out a good deal of research for the purposes of this action, but has nowhere been able to locate a copy of the Gigli sweater. He said that Mrs Guild quite often copied other people's designs: he referred in his evidence to an occasion when he said she made an exact copy of some Issey Miyake trousers. 63. The notes makes clear that samples were to be manufactured of each of the five garments I have mentioned. In the case of one of them (sweater No.1, a short sweater) the note also refers to its being “2 × 2 ply — tighter than sample”, and Mr Nabavi said that this reference to a “sample” was to one of the numbered garments Mrs Guild had left with him, either the Gigli sweater or one of the others. Similarly, the description of the proposed sweater No.1 refers to the “Measurements to be taken from sweater no.2”, which latter reference Mr Nabavi said was a reference to the Gigli sweater, although as sweater No.1 was to be short, its length would be shorter than the Gigli sweater. He said the long cardigan was to be made with pockets, the short without. He said that the two versions of the sweater and cardigan were essentially long and short versions of the same thing. He said they discussed Page13 yarns and colours, and he said that Miss Toft had prepared a lot of yarn twistings (small balls of yarn sufficient to show the colour) for this purpose. 64. Again, whilst Mrs Guild accepted that at some stage she asked for samples of long and short sweaters and cardigans to be produced, I understood her to deny that it was at this meeting. She said that — apart from what she was wearing — the only garment she showed Mr Nabavi at either meeting was her oatmeal jersey. She could not explain the reference in the note to other garments having been left with him. She gave some imprecise evidence about giving drawings to Mr Nabavi of what she wanted. She was inconsistent about when this was. During the early part of her cross-examination, she suggested she only provided drawings after these two meetings; but at a later stage she suggested that she provided them at the meeting of 18 September. She said “it makes sense to go and see him and take my drawings and my cut and sew jumper”. It does make sense, but earlier she had denied taking drawings to this meeting. Her evidence about what drawings she produced, and when, was confused and confusing. Mr Nabavi was adamant in cross-examination that she had produced none by the meeting of 7 November, although he said “we might have made very, very small thumbnail drawings. I might have done that on my notes, she might have done it. But any drawings that could constitute making the sweaters I did not see at those early days”. He said the only garments he is aware Mrs Guild had made were the early Bakhtiar garments, and he said he only saw those later, at Montrose Place. He said he had no need of detailed drawings at that stage. “… if I have a garment in front of me that I am asked to reproduce or take details of, it is quite straightforward to do so. The garments were not anything unusual. The shapes — the only difference was in the width. Other garments like that existed: the V-neck, the cardigan, all straightforward finishings … all I had to find out was whether I could actually make the width of garment.” The Gigli sweater was 88 cm and he said he had seen Joseph sweaters in the region of 85 to 95 cm wide. To the question whether it made him feel uncomfortable that he was being asked to make something very similar to, or copied from, existing designs, he replied: “Not at that time. I did not really know that much about that side of the business. So, no, it did not seem unusual to me if it was being made in other fabrics.” Although he had already made some wide pieces himself, he did not regard Mrs Guild's proposed shapes as identical to his; and, in due course, the sampling resulted in garments 100cm wide, which represented a departure from the Gigli width. He was pressed in cross-examination as to why he did not show Mrs Guild his own square designs. He said “They were part of my collection. I might have mentioned them. I might not. I cannot recall mentioning them to her but they did exist at the time.” That answer was not, or may not have been, consistent with the evidence in chief about the meeting with Mrs Guild back in the spring of 1991, when he said she loved the design of his big, loose cable sweaters. 65. Mrs Guild denied that Miss Toft was present at any of these meetings, but Miss Toft gave evidence and said she was. She remembered Mrs Guild coming to Lots Road in the autumn of 1991. She recalled her bringing an Issey Miyake jacket and a Gigli sweater to show Mr Nabavi. She said in chief that the sweater was a mottled, rust or reddish colour, and “certainly had a very wide square shape and could have been between 80–90cm wide.” Mrs Guild laid it out on the floor and said she wanted a garment similar to it. Miss Toft said it was laid on a piece of paper and either Mr Nabavi or Mrs Guild drew an outline round it, and she recalled that Mr Nabavi also made some sketches of its shape. Mrs Guild said “this is what we want to do”. Miss Toft said Mrs Guild came to Lots Road regularly over the following months. She said she would be wearing the style of clothes made by Issey Miyake, Romeo Gigli and other similar designers such as Zoran — clothes which were loose and square as well as very Indian and Middle East inspired. She said she always wore very ethnic and luxurious clothes made with natural fabrics. She would wear square, Indian style trousers. 66. In cross-examination, Miss Toft said she had a clear recollection of the meeting when Mrs Guild produced the Gigli sweater. She said it was on the lower level of Mr Nabavi's split-level office. She thought she was there the whole time. She believed the Gigli sweater was the only garment Mrs Guild brought with her: she thought it might have been on a different occasion that she brought the Miyake jacket, but could not remember. She recalled the sweater as being mid-length, probably down to the hip, but no-one put it on and so she could not be certain of its length. Miss Toft rejected the suggestion that she had confused the Gigli sweater with the oatmeal jersey Mrs Guild claims she did produce to Mr Nabavi: she was positive that what she saw was not oatmeal, but was a rust/reddish colour. She said she did not then know of Romeo Gigli's designs, indeed she had not heard of him. That meeting was the first time she had heard mention of his name, since when she has paid attention to it. She could not recall whether it was Mrs Guild or Mr Nabavi who referred to it. She thought the name was on a small label on the sweater, but she was not a hundred per cent sure. She could not remember with certainty the design of the neck, but thought it was probably a half neck, or half turtle — it was not a polo neck. She said the sleeves were loose and relatively square — not batwing. She thought they would have been to the wrist, but overall she was hazy on the details of the sweater. She denied that her evidence in chief as to the approximate width of the sweater was based on suggestions made to her, and said she recalled the approximate width, which she thought was “roughly between, or over, 80 cm”. She did not remember seeing anyone measuring it or writing down any measurements. She was positive in her recollection of the sweater being laid out on a piece of paper — or pieces put together — and being drawn round. She thought Mrs Patricia Thomas (an associate of Mrs Guild) was also at the meeting. She said Mrs Guild said “this is what we should be making’ and then they started to talk about how you could change, you could change the fabrics, you could change the colours and modify it in one way or another, or in different ways.” Miss Toft said they were going to do this because they planned to make a collection. Miss Toft left Mr Nabavi's employment at about the end of 1991 or early 1992. She is now a director of a steel trading company. She has remained a customer and close friend of Mr Nabavi. Mrs Guild — whilst admitting that she owned a Gigli sweater — denied that she ever asked Mr Nabavi to produce sweaters like any Gigli sweater, or that any tracing was made round such a sweater. Her case is that her designs derive exclusively from her own skill and labour. 67. I now refer to the evidence of Romeo Gigli. Mr Gigli is resident in Italy. Originally Mr Nabavi put in a brief, generalised statement from him under the Civil Evidence Act 1995. It was to the effect that, prior to 1991, he had designed and produced very wide shaped cardigans and sweaters with a body width of about 100cms. It was unhelpful to Mrs Guild, who claims her garments — of a like width — are original and unique. She challenged the statement's authenticity and on 9 May 2000, on her application, Master Bragge ordered that any evidence by Mr Gigli should be by video link, but apparently without prejudice to Mr Nabavi's right to use the Civil Evidence Act statement. 68. The trial started on 7 July 2000, by which time arrangements had been made for Mr Gigli to give evidence by video link. Right at the last minute, he produced a fuller witness statement about his designs, which was even more unhelpful to Mrs Guild's case, and so Miss McFarland sought and obtained an adjournment in order to investigate the matters to which Mr Gigli was apparently proposing to swear. The trial resumed on 30 October 2000, and arrangements had again been made for Mr Gigli to give evidence by video link. But on 23 October he indicated that he was too busy with his fashion commitments to give evidence orally — in July he had apparently been less busy — and he declined to do so. In those circumstances Mr Nabavi served a Civil Evidence Actnotice containing Mr Gigli's July 2000 statement and Mr Garnett sought leave to use it despite its late service. For reasons I gave in a ruling delivered on 30 October, I admitted the statement. It reads:

“I have been a fashion designer, including of knitwear, since 1983 and I have sold my designs worldwide. I have been provided with … copy drawings of a sweater and cardigan with ‘Shirin Guild’ written at the bottom”, which he then exhibited, and to which I refer more fully below. He continued:

“I confirm that the shape of the sweater and cardigan on those drawings is the same as that of my first designs of a sweater and cardigan which I made in about 1986 or 1987. I also recognise the measurements stated on those drawings, including the width of 88 cms. Since I first designed knitwear of that shape, I produced a number of variations in width, ranging from 88 cms to 90 cms and 100 cms wide. All the details on Shirin Guild's drawings are the same as my own designs. Also, I produced knitwear of this shape in a rust colour. This is a colour that I usually use and have used in the past. With regard to the sweater which I designed referred to [above] I made knitwear of the same shape with different variations of the neck. This included ‘V’ neck, crossover ‘V’ neck and round neck sweaters. I developed this shape of knitwear until at least 1992, therefore over a period of about 5 years. During that period I designed wide (between 88 and 100 cms) cardigans and sweaters, which were either square or rectangular, or were tapered at the bottom. I no longer have to hand any drawings or specifications for my knitwear referred to Page15

above. At present, I am heavily engaged in the preparation of my new collection and therefore cannot search through all my archives. However, I do not need to refer to my drawings or specifications because I am satisfied that the Shirin Guild drawings are the same as my design. I confirm that the facts stated in this Statement are true.”

69. No Gigli sweater was produced in evidence, but I heard some evidence about them from Francoise Tessier, who has been a buyer at Browns in South Molton Street for 20 years. Browns has stocked the work of Mrs Guild and Mr Gigli. Mrs Tessier said in chief that she regarded Mrs Guild's work as distinctive and instantly recognisable and that she had never seen a garment produced by Mr Gigli that was even substantially similar in look to her garments. She said she would not have purchased the work of any designer whom she believed had copied another's work. She said Mr Gigli's garments were not of the same proportions as Mrs Guild's. She had never seen any Gigli garments with bodies as wide as Mrs Guild's, and said that whereas Mrs Guild's sleeves were tapered, Mr Gigli's were not. She expressed the opinion that Mr Gigli is mistaken in his recollection that he had produced a garment identical to those of Mrs Guild. She effectively claimed to know more about his designs than he does. 70. Mrs Tessier was shown some photographs of a Gigli fashion show, which she thought had been in Paris and which she described as being of a very famous collection. Save that it is clear that it was an autumn/winter show, the date is uncertain, but it was probably 1989/90, as I find it was. Two photographs show a model wearing what looks like an olive green cape over an olive cardigan. It is the cardigan that is of interest, but unfortunately the cape largely conceals it, although the inference from some visible folds in the cardigan is that it was a loose fitting one. Mrs Tessier said she was familiar with the cardigan, she had even worn it “or something very similar to it” and said that it was wide. She said “it would probably be above the knee … It would be square, and would have sleeves that [go] straight across this way narrow and straight that way. … It would be more like a rectangle. If you put it flat you have the body being quite straight and you would have the sleeves going this way”, conveying that it was just like the shape of a T. She described it as a loose fitting garment, apart from the sleeves. She said that, unlike Mrs Guild, Mr Gigli produced his garments in different sizes, ranging from Italian size 38 (English size 8) perhaps up to Italian size 46 (a good English size 14/16). She found it impossible to specify the width of the Gigli cardigan she wore, but thought it might have been, very approximately, 80 centimetres. She agreed that, such was the variety of garments that he produced, he must also have produced garments which, if laid flat, had a straight rectangular body but whose sleeve also had a sloping underarm line: in this respect their sleeve design would have tapered in a manner similar to Mrs Guild's. 71. It is about this time — that is, autumn 1991 — that Mrs Guild claims to have met Mr Oldfield and to have discussed with him the design of her shirt, and in order to follow a chronological sequence I will digress to refer to this. Mr Oldfield is a friend of Mr and Mrs Guild and he gave evidence in chief that he met her at her home in the autumn of 1991 when she showed him a drawing of her “square shirt”. Like all relevant drawings Mrs Guild claims to have created, it no longer exists, and Mr Oldfield referred in his evidence to having recently been shown what was said to be a replication of it. He explained to Mrs Guild that the first step towards the production of a sample was to have a pattern cut to the design, and he offered the services of one of his own cutters. Mr Oldfield said that a pattern was produced and his cutter also produced a stitched calico example of the design. In his oral evidence Mr Oldfield confirmed that the design he originally saw was for a big, square, loose shirt and also said he could not be sure that his meeting with Mrs Guild was in 1991 rather than about February 1992 (the first sample for the shirt was only produced in April 1992). He also accepted he could not be sure the so-called replication drawing was a true copy of whatever he had seen at that meeting. 72. Reverting to the sweater and cardigan story, the next stage was the production of samples, which was Mr Nabavi's task. Sometime between the meeting of 7 November and 21 November 1991 he sent Mrs Guild a list of the “designs/samples” he would be preparing for her and of the yarn he would be using. The list comprised short and long V-neck pullovers, short and long V-neck cardigans, a round neck version of the short pullover, and a sleeveless waistcoat. The samples were mostly to be in indigo denim or alpaca, and in the event they were made only in alpaca. On 21 November 1991 he sent her a list of the quantities of yarn required for the samples and their cost, and explained he would have to pay a £1,000 deposit to the factory to secure definite sampling dates. On the same day he also sent her a note of his proposed fees, namely (i) a one-off £60 supervision fee per design, and (ii) 25% of the cost of the production of each item, to be calculated on the raw material and production costs involved in each production run. He was also to be reimbursed his out of pocket expenses. One of the few agreed facts in this case is that those terms were agreed, and it appears that Mr Guild played a part in their negotiation. Mrs Guild disclaims any experience or ability in business matters, and Mr Guild advised and assisted her in connection with them, although he was also running his own interior design business. Mr Nabavi said that at that stage he would still not have known what the cost of producing each garment might be, because he had not yet visited Havelock. 73. In connection with the date by which Mrs Guild claims she had produced the designs for her garments, I must now make another digression and refer to the evidence of Kaffe Fassett, also a knitwear designer. He said in chief that Mr Guild contacted him in the summer of 1991 and explained that Mrs Guild wished to start a fashion business. He visited Mrs Guild at Montrose Place, where he said she showed him three cut and sew garments. He said they were made from neutral colours — grey or grey blue (he did not refer to any being oatmeal). He said they were wide, square and short, with short arms. He said their striking features were the proportion of width to length and what he called the short asymmetric sleeves. He said they were all squared off at the lower hem — there was no pulling in by a rib at the bottom. He did not measure them but thought they were between 42 and 50 inches across the chest. He said Mr Guild explained that Mrs Guild wished to manufacture garments based on or with variations on this profile (it is not clear why Mrs Guild could not explain this). Mr Fassett said he had no doubt that the designs and profiles were “finished” designs. During his oral evidence Mr Fassett was shown garment EE (the alleged replication of the oatmeal garment), and said it was similar to what he was shown at this meeting with Mr and Mrs Guild. During his cross-examination it became clear that he did not have any reliable personal recollection of when this meeting actually was, but was relying on the claimed recollection in this respect of an unnamed assistant of his, who did not give evidence. I do not, therefore, derive any assistance on timing from Mr Fassett's evidence. 74. Mr Nabavi needed drawings of the designs to produce to Havelock, which he visited in November 1991. He said in cross-examination he also took the Gigli sweater with him to Havelock. The only question in his mind was whether Havelock had the machines to make garments of the required width. Mrs Guild said the only drawings she ever produced for this purpose were done with a ruler, because she is so fussy, but none now exist. Three of her freehand drawings — Mr Nabavi produced them on discovery and said they were the onlydrawings he took to Havelock — are of the cardigan and sweater, although Mrs Guild denied that she drew these for manufacturing purposes. These drawings are the ones that Mr Gigli referred to in his statement. One shows the long sweater, with a half turtle round neck. It has a rib at the bottom and is apparently of a uniform width of 88 cm, with a length of 74 cm. Mr Nabavi said its shape — apart from the neck (he said the Gigli had a V-neck) — was identical to the Gigli sweater, which he said was uniformly 88cm wide, and he said he took that width from the Gigli sweater. Another drawing shows the cardigan as having a width below the armpits of 100cm and a width at the rib of 88cm. The third shows the shorter sweater and cardigan as being 52 cm long. 75. It is unclear from these drawings where the intention was that the cardigan should taper from 100 cm down to 88 cm, although that is one inference from them and Mr Nabavi said that was the intention. Mrs Guild denied this and said that the rib would simply have the effect of pulling in the bottom of the cardigan. She said the sweater was also always intended to have a basic width of 100cm, although her drawing does not show this. Mr Nabavi agreed that Mrs Guild usually used a ruler for her drawings, but he said she did these in a rush the night before he went to Havelock. He could not explain why, if she wanted a V-neck sweater based on the Gigli sweater, she drew a turtle or round neck. Miss Toft referred in her evidence to these drawings of the sweater and cardigan and said that the shape of the sweater reminded her of the Gigli sweater. 76. There was a disagreement between Mr Nabavi and Mrs Guild about the production of the initial samples. It is agreed that four were to be produced — two sweaters and two cardigans. Mr Nabavi said that the first sample produced was of the crossover V-neck sweater, and that it was about 100 cm wide instead of the 88 cm shown in the drawing, about which he said Mrs Guild was delighted — although of course her case is that 100cm was always the intended width — and, in so far as it was 100 cm wide, it departed from the 88 cm of the Gigli sweater. Mr Nabavi said that he, Mrs Guild and Mrs Thomas then decided to make the cardigans in the same square, 100 cm wide dimensions. He produced in evidence another copy of the cardigan drawing, on which he had crossed out the 88cm measurement at the bottom and replaced it with a 100cm one: he said he did this “once the sweater was made and a width of 100 cm square was decided on …”. Havelock then produced a sample Page17 cardigan that was uniformly a 100 cm wide. 77. Mrs Guild's evidence about the production of samples was confused, like much of her evidence. She appeared to disagree that the sample sweater was produced in advance of the others, although she did appear to recall three samples being produced together — which would suggest that one was produced separately, which was essentially in line with what Mr Nabavi was saying. She said everything was wrong with the samples — width, height, sleeve, cuff, armhole — but that she anyway “loved everything that came as samples”. The history of the production of the samples is too imprecise and confused to attempt to describe, although it appears that further samples — and Mrs Guild would say better ones — were produced in early 1992 following her return from a visit to the USA. Thereafter the task was to produce production garments for sale. Mr Nabavi claimed that he did the technical drawings for the sweater and cardigan, and he said that the design of the shirt simply followed on from them.

1992

The partnership issue

78. Considerable evidence was devoted to the question of whether in early 1992 Mrs Guild and Mr Nabavi became partners in her proposed knitwear business. Mr Nabavi claimed they did, together with Mr Guild and Patricia Thomas, with each entitled to 25% of the net profit of the business. Mrs Guild denied there was any partnership. Her case was that Mr Nabavi's role was simply to obtain the samples and then to buy the yarn and arrange for the manufacture of alpaca and linen sweaters and cardigans for Mrs Guild: he was simply an agent for her, to be rewarded on the basis of the fee arrangements in his letter of 21 November 1991 (“the November terms”), and nothing ever changed. 79. In considering the partnership issue it is relevant to bear in mind what the respective commercial interests of Mrs Guild and Mr Nabavi at this stage. Both were undergoing financial difficulty. Mrs Guild's business was not yet started and the great success she was later to enjoy could not have been foreseen. Mr Guild's business was seriously affected by the recession. Both he and Mrs Guild were short of money, and the prospect of having to make up front payments to Mr Nabavi under the November terms was unattractive. If he were to be come a partner, then the need to make such payments would ease. Equally, Mr Nabavi had financial difficulties with his own business — he was substantially indebted to suppliers, had difficulty in paying them, and needed and received financial help from his father — and no doubt he foresaw that in the longer term a partnership share of the proposed business might prove to be attractive. However, he would also need an immediate income from the partnership in the short term. Both he and Mrs Guild therefore had an interest in discussing a partnership. 80. On 17 January 1992 Mr Nabavi wrote to Mr Guild saying that Mrs Guild had asked him to say that she and Patricia Thomas “think I should be part of the whole knitwear ‘section’, which will produce knitwear both for the present collection and the men's collection.” He explained in his letter that he was faced with a choice: either he could remain independent and supply Mrs Guild as before (on the November terms); or he could become a partner with Mrs Guild and Mrs Thomas, although if so he would have to give up his other commitments, forego his current income from them and would need an interim guaranteed income from the partnership in order to fill the income gap. Mr Nabavi wrote to Mr Guild rather than Mrs Guild because it was he who handled the business side of Mrs Guild's affairs, but she saw that letter at the time. On the face of it, her “knitwear section” included not just the alpaca or linen garments which Mr Nabavi was having manufactured by Havelock, but also her proposed cashmere business with Mrs Robertson, although Mr Nabavi had so far played at most only a small role in that. Mrs Guild said there was no intention that he should become involved in that side of her business, but she did eventually agree in cross-examination that she had made a suggestion to Mr Nabavi some time before Christmas 1991 that he should become part of her knitwear section. That might suggest that she accepted that she was proposing a change in their relationship — save that she then said that the only “change” involved was that he was to make her knitwear for her and get a fee, which was no change at all, because that was the existing arrangement. Eventually she appeared at least to agree that there was a discussion with Mr Nabavi about his becoming a partner. She also agreed that he was not paid fees for the garments that had been produced, although it was unclear on her evidence why (if he had not become a partner) he was not so paid: if he was not a partner, the November terms would still have governed the day. Equally, though, it is not clear that Mr Nabavi had in fact issued invoices for these payments. 81. Mr Nabavi's evidence is that in early 1992 the November terms were replaced by the partnership. He said there was an initial discussion about this in January 1992 between himself, his father Parviz Nabavi (a chartered accountant) and Mr Guild. Mr Guild admitted this meeting took place, but said in cross-examination that he had already told Mrs Guild that, if Mr Nabavi raised the suggestion of a partnership, he would decline the idea, and he said he did just that. However, in his witness statement Mr Guild had said the reverse: namely, that he and Mrs Guild had agreed that Mr Nabavi did have the two options he had mentioned in his letter, and he said that he put this to Mr Nabavi at the meeting, although he also said he told him that he should not give up his existing business. 82. Mr Parviz Nabavi gave evidence about this meeting and said that its whole purpose was to discuss the proposal that his son and Mrs Guild should become equal partners. If they did, Mr Parviz Nabavi said he and his son had previously discussed the income the latter would need in the short term to meet his annual commitments and they arrived at a figure of £1,500 per month. Mr Parviz Nabavi said most of the meeting was spent going through the figures which made up this amount, and that Mr Guild accepted them and said that £1,500 a month was a figure that Mrs Guild could and would pay. Mr Parviz Nabavi said in cross-examination that he also suggested that there should be a partnership deed. He said Mr Guild agreed that a partnership would be the right route to take. Mr Parviz Nabavi said he also suggested that, for tax reasons, a company might be formed and used instead, but that idea does not appear to have been progressed. 83. During his oral evidence Mr Guild sought to disown what he said in his witness statement about this meeting, saying that it was a mistake and that it was not he, but Mr Nabavi, who had raised the question of the choice of options at the meeting. I did not find Mr Guild's evidence about this very convincing. Mr Nabavi's letter of 17 January suggests that the probabilities are that Mrs Guild was keen for Mr Nabavi to become a partner — since he is unlikely to have relayed this to Mr Guild if it was not true. Yet Mr Guild said that, following its receipt, he raised the matter with Mrs Guild who “definitely did not want” a partnership, and he said that Mr Nabavi's letter was inaccurate. If so, I fail to see what there was to discuss at the meeting, or why there was any need for one. Why did Mr Guild not simply wrote to Mr Nabavi and say he had got the wrong end of the stick? 84. Mr Nabavi claims that the agreement to form a partnership took place at a meeting in Montrose Place at about the end of January or early February 1992 between himself, Mr and Mrs Guild, and Mrs Thomas. They sat on cushions around a Persian carpet and the meeting lasted at most five or ten minutes (“the Persian carpet meeting”). He said he was surprised that Mr Guild was also to be a partner: he had thought the partnership was to be between himself, Mrs Guild and Mrs Thomas. He said they agreed each would have 25% of the profits of that business and that he would be in charge of its knitwear side — design, sourcing and manufacture of samples, and production. He said he was to be entitled to draw £1,500 a month against his expectant share of profits — this was what he called his survival money, which he said he and his father had discussed with Mr Guild at the earlier meeting. He said Mrs Guild said he would be receiving this, but that he would have to speak to Mr Guild about it: and that, although Mr Guild was also at the meeting, he too agreed that this is how that aspect of the matter was to be dealt with. Mr Nabavi said it was also agreed that until the partnership was profitable, Mr Guild was to pay any initial costs and expenses, to include his survival money. Mr Nabavi said that after the Persian carpet meeting, Mrs Thomas told him that at some stage she too would need some survival money — but he did not suggest that this was part of the terms of the partnership. 85. Mr Nabavi's evidence about the payment of his survival money was not easy to follow. He claimed it was agreed, but he also said that it was difficult to get Mr and Mrs Guild to agree to anything, in particular with regard to this, and he appeared at one point during his cross-examination to be claiming that this part of the arrangement had been agreed with Mr Guild at the prior meeting with Mr Parviz Nabavi rather than during the Persian carpet meeting — but, if so, that could not have bound Mrs Guild and/or Mrs Thomas. He said that after the latter meeting Mrs Guild introduced him to everyone as her partner, just as she also introduced Mrs Thomas (and Mrs Guild admits that she so introduced Mrs Thomas). At other points in his cross-examination, he appeared to accept that no agreement as to the monthly £1,500 survival money had been agreed at the Persian carpet meeting at all. He said that at that meeting, once the 25% profit shares had been agreed, “I mentioned the fact that I needed survival money. [Mrs Guild] said, ‘Discuss that with [Mr Guild] at a later date. If that's what you need then that's what we will do,’ and really that was it.” But at a later stage of his Page19 cross-examination he appeared also to be claiming not only that the £1,500 a month was agreed at some point, but so also was the bearing by the partnership — or at least by Mr Guild — of certain expenses in respect of Lots Road. As to these latter payments, he conceded, however, that he “would not know whether it was part of the partnership agreement. I do not really understand that side of it, but it was something that was agreed would be paid to me”. He accepted that this had not been agreed before the four partners. 86. Mr Guild denied he attended any such meeting as the Persian carpet one and rejected the idea that a partnership with 25% shares was ever agreed — he said that would mean that any two people could have had a block and “I would not even have mentioned such a deal”. I regard that piece of Mr Guild's evidence as difficult to reconcile with a letter he drafted for Mrs Guild in December 1992, to which I will come. 87. Some support — albeit only of a self-corroborating nature — for Mr Nabavi's contention that a partnership was agreed might perhaps be regarded as provided by his letter of 24 February 1992 to Mr Guild. He there suggested that certain matters needed to be looked at urgently, two of which were requests for payments of some £2,000 to enable him to pay rent and service charge due on his Lots Road premises. He also raised various matters for discussion — one was “partnership papers” and another was “drawing a salary” — in terms which showed clearly that he regarded himself as having been involved full-time with Mrs Guild since the end of January1992, which was consistent with his claim that he had become a partner. Equally, the letter also shows that some fairly fundamental aspects of any partnership still remained to be agreed, and Mr Nabavi suggested that this letter could have been written before the Persian carpet meeting, but he was not sure. As regards the Lots Road expenses, Mrs Guild denied these were agreed. She also disagreed that Mr Nabavi had been working full-time with her since January. Mr Nabavi agreed in cross-examination that, if his letter was written after the Persian carpet meeting, then it reflected his attempt to “firm up the points”. He conceded that “If we look at the points individually or as a whole, possibly they weren't all concluded”. Again, if Mr Guild was clear in his mind that there was no question of a partnership having been discussed, and that it was anyway out of the question, he might have been expected to write a short reply to that effect to Mr Nabavi. He did not, although he suggested in evidence that that he was sure that, following the receipt of this letter, he put Mr Nabavi right, saying there was no question of partnership. But that is what Mr Guild claims he had already made clear at the meeting with Mr Nabavi and his father — but, if so, how could Mr Nabavi have written a letter such as that of 24 February? And why, as Mrs Robertson recalled, did Mrs Guild introduce Mr Nabavi to her in early 1992 as her partner? 88. On 26 February 1992 Mrs Guild opened a business bank account, named as “Shirin Guild Business Account” with Coutts & Co. She and Mr Nabavi were authorised signatories. That fits with Mr Nabavi's case that a partnership had been established. But, on Mrs Guild's case — that his role was simply that of a fee earning agent whose task was to achieve the production of her garments — it was an odd development of which Mrs Guild was unable to offer an intelligible explanation. As a signatory, Mr Nabavi did sign various cheques, but Mrs Guild said she would first discuss them with him. She said she would not sign them herself because “I was ignorant and I don't deal with cheques and I am hopeless with business …. I never dealt with money in my life, I really never did.” Mr Nabavi also approached his landlords with a view to giving up his Lots Road premises. 89. Mrs Guild and Mr Nabavi had fallen out by about July 1992. On 28 August 1992 he wrote to her saying it was no longer possible for him “to continue with our present business association”. He said he “gave up a profitable and enjoyable business to join you and [Mrs Thomas] …”. By his letter, in whose drafting his father assisted, he formally resigned from what he called “the venture”. He said he would be sending an account for various expenses he had incurred on behalf of the business. He agreed in cross-examination that he had not yet actually closed down his own business, but said he was going through the motions of doing so. He also agreed that his business was not yet profitable, only potentially so. He has never made any request for a winding up of the partnership affairs or a division of its assets. He has never requested an assignment to him of any copyright or design right to which any partnership may have been entitled. He claimed that “as far as I was concerned the sweaters that I worked on while I was at Shirin Guild were designed by me and produced by me. What I produced afterwards followed a natural progression of what I had been doing before I joined them and therefore I carried on doing things and being influenced by what I had done before, obviously influenced by what I had done at [Mrs Guild's] and carried on doing things after that.” 90. On 16 September 1992 Mr Nabavi wrote to Mr Guild, referring to the “withdrawal from the association with [Mrs Guild] and [Mrs Thomas] some three weeks ago”, and asked for certain payments which he said had been agreed. Only two are relevant and were for (a) three months' rent on Lots Road, and (b) his monthly drawings of £1,500. On 20 November 1992 Hardwick & Company (“Hardwick”), Mr Nabavi's solicitors, wrote to Mrs Guild asserting that there had been a partnership between Mr Nabavi, Mrs Guild, Mr Guild and Mrs Thomas, which had commenced on 1 February 1992 and was dissolved in August 1992. The letter asserted that it owed Mr Nabavi money for which Mrs Guild was personally liable. The claim was for £15,245, made up of salary and various expenses, including in respect of Lots Road. Mr Guild's long reply was in a letter dated 7 December 1992, of which Mrs Guild was the draftsman. She wrote:

“Your client held himself out to be an expert in the production of knitwear and experienced in the running of a wholesale clothing business. Based on this assurance Patricia Thomas and I entered into a joint venture with him on the understanding that he would be entitled to receive 25% of any nett profit arising from the sale of clothing designed by me. It was agreed that in order to keep overheads to a minimum none of us would draw salary until the business prospered. Your client accepted that he would be responsible for the following;”

91. Mrs Guild then listed six items, all consistent with Mr Nabavi being a partner in the “joint venture”, the second of which was “Keeping the accounting records including petty cash and attending to the daily administration of the business”, which is the sort of thing he claims to have done (and of which his cheque signing role was a manifestation). She then complained that he had failed to manage any of these responsibilities in a satisfactory manner and had “resigned from our joint venture.” 92. That amounted to an admission by Mrs Guild that she and Mr Nabavi were joint venturers for profit — or partners — but in her evidence she still denied they were. She said it was what Mr Nabavi wanted, but she never agreed. Her evidence on this made little sense. If she did not believe there was a partnership agreement, then when, how and why was there — as her letter asserted — an agreement that “in order to keep overheads to a minimum none of us would draw salary until the business prospered”? Her explanation was the feeble one that “we didn't have the money”. At one point in her cross-examination, she did appear to agree that the quoted paragraph was an accurate record of her relationship with Mr Nabavi, but I find it almost impossible to understand what her evidence about this aspect of the case really was, and I suspect that if she had been given another opportunity to consider that answer she would have said something different. Consistency in her evidence was not a virtue to which Mrs Guild can make a serious claim. She also appeared to agree that Mr Nabavi was supposed to carry out the various responsibilities she listed in her letter: her real complaint was that he had not done so. Mr Guild graciously admitted in his evidence that he could “understand a certain confusion that this letter has produced” and that it “could be subject to misinterpretation”. His explanation of the quoted paragraph received its first airing during his cross-examination and was an improbable one to the effect that all it was referring to was a one-off deal in relation to the production of a particular run of alpaca garments. I will not spell it out. It was inconsistent with the natural meaning of the paragraph and I did not regard it as credible. 93. If, however, Mrs Guild's letter appears to admit a partnership, another letter written by Hardwick, also on 20 November 1992 — this time to Havelock — can be regarded as some evidence against Mr Nabavi's assertion that he was ever Mrs Guild's partner. Havelock had claimed he owed them £2,890.50 under a March 1992 invoice. Hardwick responded that the invoice related to work booked by Mr Nabavi “in his capacity as agent for [Mrs Guild] …” and suggested Havelock should look to her for payment. Mr Nabavi accepted that the invoice related to garments produced both before and after the commencement of the alleged partnership, so that it would seem that, as a partner, he must have been personally liable at least for a proportion of the invoice, although Hardwick made no murmur of his having been Mrs Guild's partner — despite the fact that, on the same day, they had asserted precisely that to her. On the face of it, that was an unattractively inconsistent stance for Mr Nabavi to be adopting. His position seemed to be that the partnership claim could be turned on or off according to the needs of the moment. 94. As regards Mrs Thomas, Mrs Guild said that she, Mrs Guild, wanted her to be a partner, but that she was reluctant to be one. Mrs Guild said that she would describe Mrs Thomas as “my partner”.

The shirt: Mario Latronico Page21

95. Mario Latronico manufactures shirts and blouses made of silk and fine cotton. I have earlier set out Mrs Guild's evidence about the sequence of events relating to the production of her shirt. He said in chief that in about January 1992 Mr Oldfield telephoned him and asked if he could help a friend of his, who wanted to manufacture shirts. He was then telephoned by Mrs Thomas, whom he understood to be Mrs Guild's partner, and he agreed with her that, when the pattern was ready, he would visit Mrs Thomas and Mrs Guild. Five or six weeks later he went to Montrose Place. He did not recall seeing Mr Nabavi there, although Mr Nabavi said he recalled seeing Mr Latronico. When he arrived Mrs Guild showed him a pattern that had been cut in paper and explained how she wished the shirt to look when completed. He said he thought the shirt was unusual and had never seen anything like it. It was a square shirt, with an unusual width and with short sleeves. He was given the pattern, but no drawings of the shirt. 96. Mr Latronico then produced four sample shirts, for which he invoiced on 9 April 1992, when he delivered them and met Mr Nabavi. Mr Latronico and Mrs Guild fell out over the cost of the samples and he did no further work for her until the end of 1992. By then they had patched up their differences, since when he has continued to make shirts for her. 97. Mr Latronico said in cross-examination that whilst the production of a partnership sample would usually take about a day, it would overall take about four or five weeks to fit its manufacture into his firm's schedule. He agreed that it was probable that he was asked to produce the sample shirt at about the beginning of March 1992. 98. Mr Nabavi's evidence was that the dimensions for the shirt were taken from the alpaca garments already made by Havelock. He said it was in about March 1992 that the partners decided also to produce the shirt, which was to follow the same shape as the knitwear. That timing does not sit very well with Mr Latronico's, and if Mr Latronico is right then it would seem likely that the decision to go into shirts was made rather earlier. But even if it was, it could well still have been in the early part of 1992.

The cashmere garments

99. There was an issue as to when Mrs Guild first asked Mrs Robertson to produce sample cashmere sweaters. Mrs Guild said it was in the autumn of 1991. Mr Nabavi claimed it did not happen until the first quarter of 1992 — after the alpaca knitwear operation was already under way with Havelock. He said he prepared the drawings that were produced to Mrs Robertson and he used to contact her regularly. He said the drawings were based on the pieces earlier produced by Havelock and (in contrast at least to the drawing of the sweater he said he had originally produced to Havelock) showed the sweater at the width of 100 cm that had earlier been decided upon. It is agreed that Mrs Robertson only produced her first samples — a cardigan and a sweater — in March 1992, for which she invoiced in April 1992. Mrs Guild said that this is because it took her up to four months to produce a sample (at another point she said two to three months). Mrs Guild agreed that the design — in terms of their overall shape — for her cashmere garments was exactly the same as the knitwear garments manufactured by Havelock, subject to minor variations of detail from year to year. Mrs Robertson gave no evidence as to precisely when she was asked to produce the first sample cashmere garments. Mr Nabavi claims he was the person responsible for the detailed communications with Mrs Robertson with regard to the production of the cashmere samples. Mrs Guild denied that, although she did not dispute that he did have contact with Mrs Robertson. She said she produced written specifications for the garments Mrs Robertson was to produce, but Mr Nabavi denied that and said that it was he who produced them. He also claimed, but Mrs Guild denied, that it was he who produced the specifications for the shirt and that he did so in 1992. 100. Following the split between Mrs Guild and Mr Nabavi, Mrs Robertson manufactured cashmere garments for both — Mr Nabavi's first cashmere collection being produced in October 1993 — and Mrs Robertson has continued to manufacture cashmere garments for them. She said Mr Nabavi's designs for his first collection were similar in concept, but were not identical, to Mrs Guild's — there were differences in stitch structure, for example in relation to cables and ribs. She said that afterwards his ideas moved in a very different direction and his garments were developing his own “handwriting”. But she said his ideas were still inspired by tribal clothing, as were Mrs Guild's. She said that he sent her his own drawings for his designs. She said that both Mr Nabavi and Mrs Guild chose their yarns from those produced by Todd & Duncan and Hinchcliffes, who supply high quality yarns. She said she would ordinarily propose these manufacturers' yarns to customers, and said that Todd & Duncan offered about 120 colours, of which about a third were classic colours offered each season. Although cashmere is a winter garment, Mrs Robertson said she made cashmere garments for both the autumn/winter and spring/summer ranges, and Mr Nabavi and Mrs Guild had two ranges per year. 101. Mrs Robertson was shown garment EE — said to be a replica of the garment Mrs Guild says she showed her in 1989. She had no recollection of being shown such a garment then. She was also shown garment II, which she identified as a grey, cashmere knitted garment her factory had made. This was said to be one of the first samples Mrs Robertson had made for Mrs Guild. It is 102.5 cm wide under the arms and about 101.5 cm wide at the bottom. Its length is 73 cm at the sides and 72.5 cm from mid shoulder to the bottom. Its length is about 31 cm, tapering from 21 cm wide at the armhole to 12cm at the cuff. Its neck welt is 7 cm wide, and its body welt 6.5 cm. Mrs Robertson was shown garment Y, a cardigan she made for Mr Nabavi, in respect of which she commented that there was nothing unusual about the cuffs, the band around the collar, the number of buttons or their positioning or the rib around the skirt of the cardigan. She said that she would usually make the decisions as to the size of the buttonholes, by reference to the type of button to be used. The cardigan was made of five pieces (including two arms) which are sewn together, and Mrs Robertson said normally she would make the decision as to how the sewing would be done, although the customer might make a special different request. In the case of this garment, Mr Nabavi had asked for additional strength to be put across the shoulder, which involved putting an additional thread through it. Mrs Robertson was shown garment DD, a crossover V-neck sweater she had made for Mr Nabavi. She said the neck was not particularly unusual and that the designer would normally specifically request the details of the garment — for example, the style of the cuffs, the width of the ribs. She said in cross-examination that she did not know if the dimensions of the garments she made for Mr Nabavi and Mrs Guild were unusual or not — she said for about two years she also made wide cashmere sweaters and cardigans for Michael Kors — but was unaware of having manufactured for anyone else garments of the like wide dimensions as those favoured by Mrs Guild and Mr Nabavi.

Soussie Kerman

102. I referred to Mrs Kerman earlier. She recalled seeing Mr Nabavi when he was working with Mrs Guild. She recalled how Mrs Guild would explain to him the manufacturing process for her garments: how her drawings were to be used as a basis to produce the garments, the looms that would be needed to accommodate their shape and size, the knit, how to calculate the size of button holes and other such details. She said Mrs Guild drew many sketches of her designs and gave them to Mr Nabavi for a variety of reasons. She said the designs were simple square designs on which Mrs Guild wrote measurements and fabric details.

Ashley Long

103. Mrs Long has known Mr Nabavi since August 1991 when they met at a wedding, after which they met again. She said in chief that Mr Nabavi told her that the jumpers he was knitting were designed by others. Mr Nabavi denied that, and says he designed them himself. She said that he told her about Mrs Guild in about August 1991. He told her that she had designed a collection of clothes but needed someone to produce samples to the designs. Mrs Long said he also suggested that she might be able to help, since she had a background of fashion design. She worked for Burberrys and was engaged in designing the Thomas Burberry collection. In cross-examination, she said that Mr Nabavi may have referred to the designs as being simple, but did not describe their size or shape. 104. Her timing of Mr Nabavi's alleged suggestion appears a little improbable. By August 1991, there had been very little contact between Mrs Guild and Mr Nabavi and it was only in the autumn that the two began discussing the matter of Mrs Guild's designs with any seriousness. Moreover, as Mrs Long said in chief, she and Mrs Guild did not meet until January 1992, which in cross-examination she said was the first time she saw her designs. The purpose of that meeting was not to obtain help with the design of the sweater, cardigan or shirt — or to produce samples for them — but to enlist Mrs Long's help with a sample for a square jacket. Mrs Long said Mrs Guild had drawn the design for it, but needed help in creating the garment and briefing the manufacturer. Mrs Long made a pattern in paper, cut cloth to the pattern and sewed the garment together to produce a sample to be sent to the manufacturer. Page23

105. Following this, Mrs Long worked for a few months on an occasional freelance basis for Mrs Guild. She said that at some stage both Mrs Guild and Mr Nabavi suggested she should resign from Burberrys and work for Mrs Guild. She agreed and joined Mrs Guild full-time in June 1992. It was Mr Nabavi who agreed her employment package and it was to him that she presented her requests for payment of her salary and expenses (something which would appear to be more consistent with Mr Nabavi's case about partnership than Mrs Guild's). She said it later emerged that he had agreed what he did without Mrs Guild's authority. She said that whilst Mrs Guild referred to Mrs Thomas as her partner, she did not also so refer to Mr Nabavi. Mrs Long purported to give some evidence in cross-examination to the effect that Mr Nabavi was not a partner, but I regarded it as of little worth as it appeared to amount to no more than a repetition of Mrs Guild's denial that there was any partnership agreement. 106. Mrs Long said that she saw Mrs Guild draw her square garments on numerous occasions, but never saw Mr Nabavi draw any designs. Mrs Long disclaimed any part in the design of Mrs Guild's square shirt, which she said had already been designed and sampled by the time she joined her full-time. 107. Mrs Long continued to work for Mrs Guild until May 1999. Her role was to put together her biannual collection — making samples of each garment, selling the collection and overseeing its production for delivery. She explained that, since June 1992, the design process for producing Mrs Guild's garments has been as follows. Mrs Guild would draw a design and explain it to Mrs Long. Mrs Long would then make a paper pattern, then a toile (a calico garment made from the initial pattern), then a sample in the chosen cloth. She would then give that sample to Mrs Guild for approval, would make a card pattern and would then source a factory to remake the sample. Mrs Guild would then check that sample. She explained that the shirt has been produced in every collection since 1992, although there have been slight changes to the original design, for example the collar size might vary from year to year. Mrs Long gave no evidence about the creation of the sweater and cardigan.

Subsequent events

108. The main thread of the story so far has reached about the end of 1992. I referred earlier to Maryse Boxer. In about 1992 or 1993 Mrs Guild showed Mrs Boxer her designs, including her sweaters. Mrs Boxer said about them that everything was square shaped, and was new, different and beautiful. She said the jumpers were revolutionary and she “had definitely not seen it before”. In 1993 Mrs Boxer opened her own shop in Joseph, in Knightsbridge, and wore Mrs Guild's designs frequently. She bought one of Mrs Guild's grey jumpers in 1993. Her opinion was that Mrs Guild had taken the square concept further than anyone else. She compared them with the designs of Zoran, a New York designer. He too worked with extremely simple shapes but Mrs Boxer said his garments were narrower and more fitted than Mrs Guild's. Mrs Boxer was also familiar with the work of Issey Miyake, who also designed wide, square garments, but again said they were not as wide as Mrs Guild's and were different. She found it hard to define what the difference was and could do no better than “It is very difficult to say. To me they were totally different. The Shirin garments were totally another world, not the same … The proportions were different. The proportions were totally different. It was a different type of proportion.” 109. Jacqueline Unthank has been in the textile industry for 29 years and has worked for knitwear and jersey wear companies. She worked for Harold Ingram Ltd for 19 years. She said in chief that she met Mr and Mrs Guild in the latter part of 1992, when she first saw her garments, although in cross-examination she put the meeting at about May 1992. She thought Mrs Guild's garments were really interesting and had never seen anything like them. Their shape and proportions made them unique. She started working for Mrs Guild, her task being to liaise with the factories which produced her knitwear and cashmere garments. She translated Mrs Guild's drawings and ideas into a technical specification that a manufacturer could understand, stipulating all the manufacturing details for each garment. About 95% of the time these would be based on oral instructions from Mrs Guild, but occasionally Mrs Unthank did the specifications from drawings made by Mrs Guild. Mrs Unthank's role was, or became, one in which her main task was to choose yarns and develop knitted fabrics with factories throughout the UK. She first saw Mr Nabavi's own label at Bergdorf Goodman, New York, in March 1995. In about 1997 she visited Mrs Robertson on behalf of Mrs Guild and saw that she was making garments the same as Mrs Guild's, but in pastel colours. As Mrs Guild was not producing pastel colours that season it was clear to Mrs Unthank that Mrs Robertson was producing them for someone else. She said the garments were otherwise identical to Mrs Guild's. The someone else was Mr Nabavi. 110. Lucia van der Post, a freelance writer with an expertise in interior design and women's fashion gave evidence. She first became familiar with Mrs Guild's design in 1994, when she saw some of her garments in Browns. She tried a garment on and fell for it. This led to her article in the Financial Times in August 1994, which I mentioned in paragraph 13. Miss van der Post said in chief that she regarded Mrs Guild's work as “… extremely distinctive and cutting edge at the time. Her designs were based on symmetrical squares that looked rather simple but when worn gave a wonderful silhouette. Also the way her collection fitted together with a series of the same items, sweaters or shirts, that would be cut at different lengths so you could wear her collections in layers. The width was also quite unique. There were of course other designers drawing from ethnic influence … but the signature was completely different to Shirin's. … I would say she caused a minor buzz in the industry. Her garments were not to everybody's taste because some people found them to be too baggy and not overtly glamorous enough. However, she was what I call a designer's designer, the sorts of people who liked her clothes were intellectual or artsy, architects, designers themselves, sculptors. Certainly everybody in the industry thought she was on to something”. Miss van der Post explained that by “signature” she meant “certainly a very definable look”. She regarded Mrs Guild as “a very strong signature”. She agreed in cross-examination that the basic design of Mrs Guild's garments is very simple and what gives them their unusual characteristic is the fact that, when worn, they drape around the body. She said several things gave the sweaters their signature, including the width, the setting of the sleeve, the length. 111. Amy de la Haye has a considerable interest in fashion and has since 1999 been a creative consultant to Mrs Guild. She has worked as a curator at the Victoria and Albert Museum, including from 1991 to 1998 as curator of “The Cutting Edge: 50 years of British Fashion Exhibition”. She first saw Mrs Guild's work at Liberty in about 1994 or 1995 and “adored and was fascinated by [it] in a professional and personal capacity”. She regarded it as strikingly unique — because they were very wide and the sleeves very short. This is true, but the chosen width of the garments means that, if the design choice is for sleeves that hang to the hands, the sleeves have to be short. Mrs de la Haye included one of Mrs Guild's outfits and a cashmere sweater in the Cutting Edge exhibition. She did some superficial research into current fashions in 1992 and concluded that no designers were then doing anything like Mrs Guild was. She considered Mrs Guild was unique in drawing her design inspiration from Iran. She described her as using “Iranian clothing traditions but with a modern minimum aesthetic to create a look that is totally hers”. She categorised Mrs Guild as an ethnic minimalist.

Mr Nabavi's activities after he and Mrs Guild parted

112. Mr Nabavi gave some detailed evidence about what he did after parting from Mrs Guild. He explained how his designs progressed and expanded, drawing in particular on the wide, square shape. From October 1992 to October 1993 he continued to produce handknitted woollen knitwear, again made by Mrs Butler. These included garments of type WW and UU (both made before he met Mrs Guild) and garment VV which was made later. He also produced garments of type BBB, based on the wide chenille pattern but re-written for plain stitching rather than cabling. He has included this in every collection to date. It is 96 cm wide under the arms, about 82 cm at the bottom and about 60 cm long. Its sleeve length is 30 cm, tapering from a 25 cm wide armhole to a cuff width of about 10 cm. The neck welt is about 8.5 cm and the body welt about 8 cm. This garment is not claimed by Mrs Guild to be an infringing one, although it is similar to those which are. 113. For autumn/winter 1993/94 he produced a cashmere, machine knit collection made by Belinda Robertson. These included a wide roll neck sweater, of which garment CC is an example, which is of a uniform 94 cm width and 67 cm long, with sleeves 29 cm long, tapering from a 23.5 cm width at the armhole to a cuff width of 14 cm. The neck welt is 17 cm wide, and the body welt is 7 cm. It appears that Mrs Guild does not claim that this garment is an infringing one either. He also produced a wide, slit front, buttonless cardigan some 90 cm wide and 67 cm long and an A-line sleeveless sweater 90 cm wide at the bottom and 55 cm long. For the same season he also produced a collection made by Mackinnon International Knitwear Ltd (“Mackinnon”), including V-necks, cardigans and roll-necks. The V-neck sweater, which was his first, was 100 cm wide and 70 cm long (long version) and 62 cm long (short version). The cardigan, also his first, was 100 cm wide, 70 cm long and had a V-break measured diagonally of 30 cm. The roll-neck sweater was 100 cm wide and 70 cm long. Page25

114. For spring/summer 1994 Mr Nabavi had a collection again made by Mackinnon. These included short and mid-length, extra wide cardigans; an extra wide, mid-length roll neck sweater; and an extra wide V-neck sweater. In the late summer of 1994 he made his first shirt, which was 97 cm wide and 75 cm long. It was, he said, virtually identical to the shirts of which complaint is made by Mrs Guild (which are garments BB and Z). He said he based its main body shape on the designs he was already making in knitwear. He left the detailing of the collar, cuffs and button placement to a pattern cutter, Brigid Warner. This shirt appeared in all Mr Nabavi's collections until 1997. 115. Brigid Warner gave evidence. She is a pattern cutter and sample machinist. She said that in the spring of 1994 Mr Nabavi provided her with drawings of a shirt shape — which she said was very square — and discussed his style with him. It included dimensions, but showed no details for the collar and cuffs. She then made three patterns for these that she thought would match the shirt shape and cuff shapes from the samples she had sent him. She said he did not give her any exact measurements or sizing for the collars and cuffs. She made all the design decisions about their detail. She has continued to provide him with collar and cuff patterns for his shirts. 116. For the autumn/winter season of 1994/95 Mr Nabavi's collection included long and short roll neck and V-neck sweaters in lamora; long and short button cardigans in lamora and cash-tweed; the same shirt; and a panelled sweater in cashmere with a Chinese collar, which was 101 cm wide and 55 cm long. His spring/summer 1995 collection included a high, round neck sweater 90 cm wide and 58 cm long, and a short and long cardigan 90 cm wide and 48 and 58 cm long. He also produced a short and long crossover V-neck sweater 90 cm wide and 54 cm and 65 cm long; and like garments designed to be 94 cm wide. His autumn/winter collection for 1995/96 included a cardigan with a width of 96 cm and a length of 75 cm, one he varied in 1997 with a width of 93 cm and later with a width of 85 cm. His autumn/winter collection for 1996/97 included garment CC (94 cm wide and 64 cm long) and garment Y (93 cm wide at the welt and 76 cm long) and a wide shirt in three lengths. His spring/summer collection for 1997 included a panelled wide cardigan, high neck sweater and a crossover V-neck sweater, the last being garment AA (92 cm wide under the arms and about 84.5 at the welt, and 64.5 cm long). He said this, as well as the other two garments, were designed to be 92 cm wide and 62 cm long. He also produced a shirt, of which garments BB and Z are examples. BB is 96 cm wide and about 76.25 cm long. Z is 97 cm wide and about 77 cm long. He also produced a narrower shirt ranging from 87 cm to 81 cm wide, and 75 cm long, of which no complaint is made by Mrs Guild. His autumn/winter 1997/98 collection included a four tone roll neck sweater and cardigan, both 92 cm wide and 70 cm long; a striped cardigan 90 cm wide and 65 cm long; and an 8-ply roll neck sweater 80 cm wide and 60 cm long. He also produced a cardigan and roll neck sweater in alpaca both 84 cm wide and 60 cm long. 117. This summary of what Mr Nabavi produced over the years is not intended to be comprehensive, but shows he was certainly not what might be termed an exclusively 100 cm designer. In the course of his closing submissions, Mr Garnett took me carefully and thoroughly through the various design developments in Mr Nabavi's creations over the years after he parted from Mrs Guild. To describe them in detail would extend this judgment intolerably. I should, however, at least comment that there was some suggestion made by Mrs Guild that Mr Nabavi's choice of colours for his garments closely tracked her own choices, an allegation I did not find proved.

Allegations of copying

118. In 1994 Mrs Guild discovered that, so she claims, Mr Nabavi was making and selling copies of her garments. She wrote to him on 3 April 1994 complaining that he was copying her knitwear designs. Mr Nabavi did not reply to her letter. Nor did Mrs Guild follow the matter up, at any rate at that stage. 119. Angela Quaintrell gave evidence, she being formerly a full time, and now a part time, senior fashion buyer of ladies wear at Liberty of Regent Street. She now also does some consultancy work for Mrs Guild, which occupies her for about two days a week. Her job at Liberty was and is to buy two collections a year — spring/summer and autumn/winter. Liberty is renowned for encouraging new and unusual designers. It carries several knitwear ranges. Miss Quaintrell knows the designer end of the knitwear market here and abroad very well. In January1994 Miss Quaintrell was recommended to look at Mrs Guild's collection. She had not previously heard of Mrs Guild but went to Montrose Place in about February 1994 where she saw photographs of her 1994 spring/summer collection. A few weeks later she viewed some samples of her winter collection. Miss Quaintrell liked the collection and decided to place an order. It was fresh and new. It was the beginning of a period of easy dressing for women and the garments, with layered, casual and less structured clothing, still looked stylish. It also suited women of all proportions. Her reaction to the designs was that they were totally distinctive; she had never before seen anything like them. The impact came from the combination of the square cut, the width, the fabrics used and the crossed neck. Miss Quaintrell considered that everything in Mrs Guild's collection had her distinct signature — squareness combined with details varying from season to season. The details included where the sleeves started, the edging on the shirts, the buttons, the kind of yarn used and the kind of knit. Mrs Guild became Miss Quaintrell's biggest account, with Liberty selling around £350,000 worth of garments each season. 120. About a week after her visit to Mrs Guild's premises, Miss Quaintrell went to Mr Nabavi's at Lots Road. She had bought about 24 of his knitwear items some four years before, in about 1990 — Aran (hand knitted) jumpers with animal or heraldic designs on them, beautifully made and of traditional shape but not displaying any unique signature or handwriting. In her evidence in chief, Miss Quaintrell said that on that occasion — in 1990 — she had been to Lots Road, where she had not seen anything which was not of traditional shape. In cross-examination, she agreed that in fact she had not been to Mr Nabavi's premises in 1990 at all, but that he had brought his collection to her. 121. The reason why Miss Quaintrell went to Lots Road in 1994 was because she had been recommended to look at Mr Nabavi's new collection. She there saw a black sweater hanging on a pole identical to the V-cross necked sweater she had seen at Mrs Guild's studio the week before. It was based on a square shape with unusual placing for the sleeves. Miss Quaintrell explained her amazement to Mr Nabavi, who told her he had worked for Mrs Guild, that she had stolen his designs based on the square shape and he had left her and set up on his own. Miss Quaintrell said Mr Nabavi seemed very innocent and naiïve, his story was plausible and she believed him. She said in chief that his collection was small compared with Mrs Guild's, consisting only of a cardigan, a jumper and a knitted dress based on the design as the jumper. He was also producing Aran knits but they were being sold under the Michael Kors label. In cross-examination she disagreed that Mr Nabavi's collection comprised about 25 pieces. 122. Miss Quaintrell mulled over the matter for a few days and then rang Mrs Guild, spoke to her or David Phillips, her sales manager, and explained that she was not going to place an order because she believed Mrs Guild had stolen Mr Nabavi's designs. Mrs Guild then provided her side of the story in a letter to Miss Quaintrell, and also provided copies of correspondence between her and Mr Nabavi's legal advisers. Miss Quaintrell now chose to believe Mrs Guild instead and so placed an order with her for the 1994 autumn/winter collection. In about the spring of 1995 Miss Quaintrell heard that Mr Nabavi was producing linen shirts to an original design. Miss Quaintrell went to look at them and concluded that they too were identical to Mrs Guild's designs. 123. Miss Quaintrell has bought Mrs Guild's summer and winter collections for Liberty every year since 1994. She regards her clothes as original, stylish and innovative. The square design is different from any other design concept. She said that other designers, for example Nicole Farhi and Hovman (a German designer) have designed a version of her square design, but were not in any sense copies. She said their sleeve and neck shapes were different. Mrs Guild always does a cross neck that is different from others; and she uses a wider rib than others. In cross-examination, Miss Quaintrell said she had never seen a square sweater by Nicole Farhi. 124. Miss Quaintrell gave evidence of trips to New York and Milan in 1996 and 1999. At the Bergdorf Goodman and Biffi stores respectively she saw collections of what appeared to be Guild garments, only to discover on closer inspection that they were Mr Nabavi's. 125. In cross-examination Miss Quaintrell agreed that Browns in Knightsbridge was selling Mrs Guild's garments about six months before Liberty did. She was shown garment SS, which she recognised as a garment she had first seen in about 1991 or 1992, before she started buying Mrs Guild's designs. Garment SS is a wide sweater designed by Mr Nabavi and said by him to have been sold at Liberty. Miss Quaintrell accepted that it may have been, but said she could not remember seeing a sweater at that stage as wide as garment SS. 126. In 1997 Mrs Guild decided to take up the 1994 correspondence again. On 25 February 1997 Willoughby & Partners (“Willoughby”), solicitors, wrote on her behalf to Mr Nabavi, claiming that “It has come to our client's attention that you are manufacturing and selling copies of her original designs.” Interestingly, despite Mr and Mrs Guild's protestations to the contrary during the trial, Willoughby recorded that “It was agreed that you could assist on the distribution side of our client's Page27 business for a share of profit which your activities would engender” — instructions which could only have come from Mrs Guild, and which appear more consistent with Mr Nabavi having become a partner than having remained under the November terms. Willoughby warned that, unless Mr Nabavi gave certain undertakings within 14 days they would advise Mrs Guild to sue him for copyright infringement. Mr Nabavi said that, despite this, he still felt comfortable in carrying on with his designs since he denied that he had copied anything. He said he felt justified in doing what he had done and was doing. 127. Tanya Lowe is a friend of Mrs Guild who has known her since they were teenagers. She said in chief that she was “frequently by her side” in the early years of her fashion business. In her oral evidence she said she saw Mrs Guild almost every day during the time she was working with Mr Nabavi and saw him almost every day as well. She regards Mrs Guild's designs as totally original. She said her designs stemmed from her Persian background and philosophy and spirituality. Mrs Lowe had knowledge of her own about Iranian peasant costume. She viewed Mrs Guild's clothes as works of art and saw her design concept as revolutionary and totally different from anything previously done in contemporary fashion. In her oral evidence she was unable to express a view as to whether the items of eastern clothing from which Mrs Guild derived her inspiration also amounted to works of art — she disclaimed sufficient expertise in either fashion or art to do so. She claimed familiarity with the type of work that Mr Nabavi was producing at the time he was working with Mrs Guild and said he was knitting ornate, colourful sweaters that seemed to draw their influence from Persia in the sense that they were similar to Persian carpets. Mrs Lowe said that Mr Nabavi often told her that he did not know what fashion was until he met Mrs Guild. She said that on a visit to Los Angeles in 1999 she saw some garments in Neiman Marcus that looked like Mrs Guild's and that it was only on closer examination that she saw they were Mr Nabavi's.

The issues

128. Before coming to the various issues, I will first make some general comments about the witnesses. The key witnesses were Mrs Guild and Mr Nabavi. Neither was a wholly satisfactory witness. The evidence of each was in certain respects inconsistent, although they were of course for the most part endeavouring to recall a sequence of events that had taken place some eight or nine years earlier and so it is not surprising that neither has a perfect memory of what happened and when. In this respect, they were not assisted by the fact that there is relatively little supporting documentation providing pointers as to the course of events. 129. However, inconsistency is not the only criticism that can be made about their evidence. Certain of the differences between them are so stark that they cannot easily be put down to errors of recollection. They relate to matters that it is difficult to believe either could have forgotten about. One difference is whether Mr Nabavi was producing wide, square garments, with widths of up to 100 cm or more, even before he met Mrs Guild. He claims he was, but she disputes it. Another issue is as to the origin of the designs for Mrs Guild's sweater, cardigan and shirt. She claims that she had already created her own designs by the summer of 1991. She claims she had produced sketches for each garment by then, and says she had already made the oatmeal cut and sew garment, of which garment EE is said to be a black replica, which was the basis for the sweater. Mr Nabavi disputes all of this, denies any designs for the garments pre-dated his association with Mrs Guild and claims that the design for the sweater was taken directly from the 88 cm Romeo Gigli sweater — although the first Havelock sample was at a width of 100 cm — and the design of this then formed the basis of the design also of the cardigan. He says that it was the design of the Havelock alpaca garments which were then the basis of the instructions to Mrs Robertson for the cashmere garments — which he puts at early 1992 as compared with the much earlier date preferred by Mrs Guild. He says that this design was then also used for the shirt, of which Mr Latronico produced the first samples in April 1992. Save for the influence she admits she derived from Iranian peasant style garments, Mrs Guild wholly denies that she drew any inspiration from any other designer for the design of her own garments. Her claim is that the design of the three garments in issue is exclusively referable to her own original and independent skill and labour. She denies that any sweater by Gigli was used as a model for her own designs. 130. The role, if any, that the Gigli sweater played in the origin of Mrs Guild's designs is at the heart of a central factual dispute between the parties. Whether a Gigli sweater did or did not provide the basis for her designs is not something either can easily have forgotten. It appears to me probable that one or other of Mrs Guild or Mr Nabavi is being untruthful about this. I shall have to review the evidence about it before making my findings. I will, however, say at this stage that as between Mrs Guild and Mr Nabavi I generally regarded Mr Nabavi as the more convincing witness, and did so despite the inconsistencies in his evidence. In particular, for example, I found Mrs Guild's evidence about the partnership issue unsatisfactory. Whether or not a partnership was established is a matter I shall come to. But I regard it as clear that there certainly was at least a proposal and discussion about it in early 1991. This is consistent with Mr Nabavi's letters, with Mrs Guild's letter of 7 December 1991 and with Willoughby's February 1997 letter. It is also consistent with the increased role that Mr Nabavi was obviously playing in Mrs Guild's business. In her evidence, however, Mrs Guild was keen to play all this down and to deny any partnership, just as was Mrs Guild, whom I also regarded as a somewhat unsatisfactory witness. I regarded the evidence of both Mrs and Mr Guild on this particular topic as less than frank. Overall, Mrs Guild did not help herself by the fact that her evidence was generally — and in important respects — imprecise and confused; and this, together with the somewhat disordered manner in which she gave it, did not inspire me with confidence as to its reliability. By contrast, Mr Nabavi gave his evidence clearly and well, although there were some oddities about it, and some aspects which caused me serious concern as to its reliability. Overall, however, he did not in any respect leave me with the feeling that he was seeking to mislead the court. I turn to the main issues.

Was Mr Nabavi designing and making wide sweaters before he met Mrs Guild?

131. I find he was. I accept his evidence that by early 1991 he was already making wide chenille and tweed sweaters. Garment UU is about 79 cm wide. Garment VV is a plain tweed sweater, on average something over 80cm wide. Garment AA is about 88 cm wide, and garment WW is the reject garment tapering from a width of 116 cm to 101 cm at the bottom. Garment SS, another wide one (for which I do not believe there are any agreed measurements), was the one he said he sold to Liberty. His evidence about the timing of these designs was supported by Miss Toft, whom I regarded as a truthful and reliable witness and, save only that she is a friend of Mr Nabavi, one who appears to have no interest in the outcome of this case. She confirmed that Mr Nabavi was already making sweaters like garment WW before she started working for him, which was in about the summer of 1991. Mr Nabavi's evidence was also supported by Mrs Butler, who recalled that she was knitting the chenille sweaters for him at the time and who identified garments WW and YY as examples of what she was then doing (although garment YY was in fact knitted afterwards). I regarded her as a sound and reliable witness. 132. I find, therefore, that Mr Nabavi had already designed and was making garments of a wide, square design, with widths of up to 100 cm, before he met Mrs Guild. The upper line of their sleeves follows the shoulder line, with the lower line slanting up to the cuff. A consequential oddity about this, however, is — as I also find — that Mr Nabavi did not show his designs to Mrs Guild. Miss McFarland understandably made considerable play about that and said it was so incredible that the only inference is that his evidence about the date of these designs is wrong and they all post-dated the Guild association. I agree that the fact he did not show them to Mrs Guild is surprising, and it has caused me to consider carefully whether I should accept his evidence about the dating of these garments. Having done so, I concluded — ultimately without much hesitation — that I should. I believed his evidence about this, and Miss Toft and Mrs Butler corroborated it. 133. I also find that Mr Nabavi did start compiling his scrapbook from as early as the end of 1990 or early 1991. I reject the suggestion that he had only compiled it for the purposes of these proceedings. I also find that an early entry he made in it was a photograph of what was apparently a wide sweater, although whether it could also be described as square is unclear. The loose fitting shape, and wide garments generally, had previously been fashionable, although the expert evidence was to the effect that by the early 1990s they were becoming less so. But just as Mrs Guild has always had a fixation with loose, square peasant style garments, so did Mr Nabavi claim to have been similarly influenced, as well as by Joseph's oversized garments. Wherever other fashion trends may have been going by the early 1990s, they both continued to reflect those influences in their own designs.

The origin of the designs of Mrs Guild's garments

134. Mrs Guild claimed that these all pre-dated her association with Mr Nabavi. I regarded the evidence in support of that as somewhat feeble. I accept that Mrs Bakhtiar made garments for her in Page29 about 1987, but there is no suggestion that their designs bore any close relation to those of the garments in issue or were their direct antecedents. It is plain from Mrs Boxer's evidence that whatever garments Mrs Guild made for her in 1989, their design also bore no relation to those of the garments in issue. Mrs Guild claims that the oatmeal cut and sew garment existed as early as 1989, but could not produce it in evidence, and I am not satisfied that it did then exist or, if it did, precisely what its design was. Mrs Robertson does not remember seeing such a garment back in 1989, nor does she remember then discussing a garment width of 100 cm, although she does remember that the question of width was discussed. Mr Fassett claimed to recall seeing three Guild garments in the summer of 1991, but he did not say he saw an oatmeal one, and it also became clear that he was not able to speak from his own recollection that it was in fact as early as summer 1991 that he saw whatever he saw. If he did see three garments, what were they? The inference I draw is that the Fassett meeting was probably rather later — or at least I am not satisfied it was as early as he suggested — and that it is quite probable that what he saw were samples that Havelock produced in late 1991. But if this is wrong, I anyway regard his evidence as insufficient to support Mrs Guild's case that the garments she was making by 1996 were all based on designs she had made by the summer of 1991. Mrs Guild did not produce in evidence a single drawing of hers pre-dating the Nabavi association, let alone the sketches which she claims existed for the three garments by the summer of 1991. Although she says that she was already instructing Mrs Robertson in connection with cashmere garments by about the autumn of 1991, I regard that as improbable bearing in mind that Mrs Robertson did not produce the first sample garments until about March or April 1992. It appears to me far more probable that Mrs Robertson was only instructed rather later than Mrs Guild suggested probably in early 1992, after the production of the first Havelock samples — and I so find. I did not regard Mr Oldfield's evidence as proving with any reliability that he saw any Guild drawing as early as the autumn of 1991; and I regard it as also probable, and I find, that Mr Latronico was also not instructed to produce the shirt until about early March 1992 — he produced his first samples in early April 1992. 135. In short, I regard it as probable, and I find, that the drawings created for Mrs Robertson and Mr Latronico post-dated the first Havelock sample garments, for whose production Mr Nabavi was responsible. I reject Mrs Guild's evidence that she had created the designs for her garments by September 1991, which is when she and Mr Nabavi had their first serious meeting. Nor did she assert otherwise very strenuously in her own evidence. She made a variety of suggestions as to when she first showed Mr Nabavi her drawings. At different times she both asserted and denied that it was as early as the September 1991 meeting. Her evidence was also that she was always making drawings, which perhaps suggest that her design thoughts were ever developing. Her evidence left me with no confidence that any final design drawings for the three garments existed by the summer of 1991, let alone that they were produced to Mr Nabavi, and his evidence is that her first drawings for the samples produced by Havelock were only produced after the meeting of 7 November 1991. I find that they were. 136. I find, therefore, that by the time of the meeting of 18 September 1991 Mrs Guild had not created any drawings for her proposed garments, and nor was I satisfied by her evidence that any cut and sew oatmeal sweater then existed, or at least I do not accept her evidence that she ever produced it to Mr Nabavi. He denied that she produced any such garment at their meetings in September and November 1991, and I accept his evidence on this, which was at least to some extent corroborated by Miss Toft, at any rate with regard to the meeting of which she could speak. The thrust of Miss Toft's evidence was that the Gigli sweater was the all-important sample garment. I have summarised the imprecise evidence Mrs Guild gave as to the course of events at the meetings of 18 September and 7 November 1991. I have also set out Mr Nabavi's version of events, which was not wholly consistent either. But central to his account is that there was no question of Mrs Guild showing him any sample garment she had already created, or any drawings. Instead she demonstrated the style she was interested in by reference to what she was wearing — and, with regard to that, she also appeared to say much the same — and in particular by the production of the Gigli sweater, which Mr Nabavi said (after some inconsistency in his evidence) was produced at the November meeting. That was, he said, to provide the basic model for the wide, square shaped design that Mrs Guild wanted to achieve. 137. Mrs Guild roundly denies that assertion, but I am not confident that her denial was truthful. She was, first, apparently rather less than keen to volunteer in evidence that she had ever owned a Gigli sweater, although later she accepted she did although it was, she said, a relatively tight fitting one — and so represented a departure from her preferred design choice. Secondly, Mr Nabavi's note of the meeting of 18 November shows that by then the Guild/Nabavi project was really quite advanced and so Mrs Guild must by then have identified with at least some degree of precision what type of garment she wanted him to produce: and I have found that she had not shown him any sample garment like EE or any drawings. If she did not illustrate her chosen design by reference to the garments of others, how else did she illustrate it? Thirdly, Mr Nabavi's note records that Mrs Guild left several garments with him — one of which he says was the Gigli sweater — and if the purpose behind that exercise was not to provide him with her design ideas, it is difficult to know what it was. Fourthly, Mr Nabavi's evidence about the production of the Gigli sweater at the November meeting was in my view convincingly supported by Miss Toft. She recalled a meeting at about this time in Mr Nabavi's office (which is where Mrs Guild recalls it was), clearly recalled a sweater being produced which she remembers was by Romeo Gigli — a name she heard for the first time at this meeting, and has never forgotten — and even gave an account of the sweater being laid out on some pieces of paper and drawn round, although Mr Nabavi did not recall that. There were other differences in their respective recollections, in particular as to the type of collar the Gigli sweater had, but Miss Toft was positive in her recollection of the key role the Gigli sweater was intended by Mrs Guild to play. 138. Mrs Guild's case is that this is all invention, or at least reflects a remarkable recollection by both Mr Nabavi and Miss Toft of something that simply never happened. If it did not happen, the evidence that it did must have been conspiratorially cooked up by Mr Nabavi and Miss Toft. Had they been so dishonest as to do that, then they might perhaps have been expected to make a rather better job of agreeing the details — unless, of course, they decided it would look more convincing if they both remembered it slightly differently. I do not propose to speculate further on that. Having seen and heard both give evidence, I was and am satisfied that, despite the differences in their respective recollections, they were both giving essentially truthful evidence about the fact that Mrs Guild did produce the Gigli sweater at this meeting as a basic model for her own proposed design shape. The production of such a sweater for this purpose does not appear to me either impossible or even improbable. Even though he was not cross-examinaed, I see no reason not to accept Mr Gigli's evidence that he had by this stage produced square sweaters with a width of at least some 88 cm, and Miss Toft's evidence was that this particular one was about 80 to 90 cm wide. Mrs Tessier was keen to emphasise that Gigli sweaters were quite different in concept from Mrs Guild's, but I did not find her evidence about that very convincing. It was plain from her evidence that he did produce wide square sweaters over several seasons, and I understood her also to accept that some of his designs would have included tapered sleeves, like Mrs Guild's. Miss McFarland emphasised how outrageous it was to suggest that Mrs Guild might stoop to the device of copying another designer's work, the premise being that Mrs Guild must be assumed unquestioningly to occupy the highest moral ground. I do not consider that I can or should approach this case on the basis that Mrs Guild should automatically be regarded as above such copying I have to decide this case on the evidence: and on this issue — as on most — I prefer that of Mr Nabavi and Miss Toft to Mrs Guild's. I also prefer Miss Toft's recollection about the collar style of the Gigli sweater to that of Mr Nabavi. I find that it was not a V-neck collar, but was similar to the round collar shown in the pre-Havelock drawings that Mr Nabavi produced in evidence. 139. The next stage was the creation of samples by Havelock. Mr Nabavi's evidence was that he took to Havelock some drawings made by Mrs Guild and also the Gigli sweater. Those drawings show a width of 88 cm for the sweater — apparently a uniform width, although Mrs Guild disputes this — being a width that Mr Nabavi says he took from the Gigli sweater. By contrast, he says the cardigan was to be 100 cm across the body, tapering to 88 cm at the bottom. Those drawings are a bit of a mystery, not least because the sweater shows a round neck, whereas by then the plan was for a crossover V-neck. In the event, Havelock produced a V-neck sweater uniformly about 100 cm wide, which Mr Nabavi said Mrs Guild was pleased with, which they then decided should be the standard uniform width for both sweater and cardigan. There is of course a dispute about all this, as I have related, and there are aspects about Mr Nabavi's account of these particular events that certainly have troubled me. But, again, I prefer the essentials of his account — which was to some extent supported by the consequential measurement amendments he made to copies of the same drawings. 140. I conclude, therefore, and I find, that the core of the original design for Mrs Guild's square sweater was taken from the Gigli sweater. I find that it was the same square, 88 cm wide design. I find that the cardigan was originally intended to be of a slightly different shape, tapering from 100cm to 88 cm. In the event, the sample sweater came out at about 100 cm wide, and it was then also decided to make the cardigan — and later the shirt — of the same square shape and dimensions. The end result was that the chosen designs were still based on the Gigli design, but were wider. The details of the garments were of course different from those of the Gigli design. In particular, the Guild sweater had a crossover V-neck, and it may well be that the other details were different (the cuffs and rib); and of course the basic — widened — Gigli shape was adapted so as to be made into a cardigan and shirt. I Page31 find that Mrs Guild did all this design work. The width of 100 cm was, I find, relatively unusual. Mr Gigli had apparently produced designs of sweaters of this width. So had Mr Nabavi. I have referred to the garments of others, in particular Joseph's Sloppy Joe, which was of a width approaching this. In fact, Mrs Guild's garments — said to have been made according to her original design — vary somewhat from a 100 cm width. Sweater LL tapers from 90 cm to about 83.5 cm. Sweater NN tapers from 89 cm to about 86 cm. Sweater MM is 99 cm under the arm, expanding to about 105 cm at the bottom. Cardigan HH is 98.5 cm wide. Shirt JJ has a width of 105.5 cm under the arms tapering to 101 cm midway. Shirt KK alone is 100 cm wide.

Was there a partnership?

141. I accept most of Mr Nabavi's evidence about this. In my view the weight of the evidence points to the conclusion that by about the end of February 1992 the nature of the business relationship between Mrs Guild and Mr Nabavi had undergone a change from that reflected in the November terms. I accept Mr Nabavi's evidence that there was an agreement at the Persian carpet meeting between himself, Mr and Mrs Guild and Mrs Thomas to become partners in Mrs Guild's knitwear business, with each having a 25% profit share. In so far as Mr and Mrs Guild suggested there was no such agreement, I reject their evidence. On the other hand, I find there was no binding agreement between all four as to the payment to Mr Nabavi of the £1,500 a month survival money, which he says was agreed. I accept that he raised it at the meeting, and also that both Mrs and Mr Guild suggested that discussion about it should be deferred for agreement with Mr Guild later. I find that it never was agreed. 142. More difficult is the question whether the failure to agree this aspect of the matter — which I accept was crucial to Mr Nabavi — means that there was no binding agreement for a partnership at all. My views on that have wavered. An agreement to agree is not ordinarily any agreement at all, and a purported agreement in respect of which an important term still remains to be agreed is normally not an agreement either. I have, however, come to the conclusion that the fact that no agreement was made with regard to the amount of Mr Nabavi's survival money is not fatal to the contention that a valid partnership agreement was made between the four proposing partners. It is in the nature of informal partnership agreements that not everything will be agreed at the outset and that issues will arise in the course of the partnership which will have to be the subject of agreement — for example, on such matters as to when the partners can take their holidays, and their length. If they cannot reach an agreement on such matters, then it may point to a likely breakdown in the partnership, with one or other partner feeling compelled to terminate it. In my view, the matter of Mr Nabavi's survival money, although one of great importance, was in principle in the same class. It was something he expected would be agreed, and about which Mr and Mrs Guild (as I find) made similar noises. In the event it was not. The failure to do so might have led Mr Nabavi on this ground alone to terminate the partnership. In fact, he anyway did so by his August 1992 letter. 143. I find, therefore, that there was a partnership between Mr Nabavi, Mr and Mrs Guild and Mrs Thomas in the knitwear business that Mrs Guild had started up, with each partner being entitled to 25% profit share. I find also that it was terminated in August 1992, but that no steps have been taken to wind up its affairs. But, and perhaps most significantly for present purposes, I find that there was no agreement that any copyright or design right that Mrs Guild may have been entitled to was to become an asset of the partnership. This does not appear to have been the subject of any express agreement, and I do not consider that it could be regarded as having been impliedly agreed either.

Mrs Guild's claims: generally

144. Mrs Guild claims she had created sketches for her three garments by the summer of 1991. She says these were sketches for works of artistic craftsmanship in respect of which she was and is entitled to the copyright. She also claims that the original sample garments were such works. Alternatively, she claims her designs were ones in respect of which she was and is entitled to unregistered design right, although this is a less attractive alternative from her viewpoint since the term of any such right will expire in 2002: see section 216 of the Copyright, Designs and Patents Act 1988 (all subsequent section references are to that Act), and competitors such as Mr Nabavi would be entitled as of right to a licence during the last five years of the term to do anything which would otherwise infringe her design right (see section 237). She claims that Mr Nabavi has copied her designs and so infringed her copyright or design right. Mr Nabavi denies her claim in all its several essentials. Issues arise under the following heads.

What are the designs that Mrs Guild claims to be entitled to protect?

145. Before Mrs Guild can be entitled to any relief in respect of alleged copyright or design right infringement of any designs for her garments she must first identify with sufficient precision the designs she created. 146. I have some difficulty in identifying precisely what the designs are in respect of which she claims protection, and this was a point about which Mr Garnett made considerable play. She has not produced any of the sketches or drawings she claims existed as early as summer 1991 for all three garments. She has not satisfied me what these sketches showed, or even that any such sketches existed. There is evidence that a drawing of a shirt was shown to Mr Oldfield at some stage (probably, as I find, early 1992), but no satisfactory evidence as to what the drawing was. There is no satisfactory evidence of what was shown to Mr Latronico and the sample shirts he made (apparently about four) are not in evidence. Mrs Guild's own pleading admits that there have since been “various minor alterations” to the shirt, but her case is nevertheless that the shirts she produced in 1997 are to be regarded as made to her same basic original design. Of those shirts, KK is 100 cm wide and has varying length measurements of 72 and 74 cm; and JJ has width measurements ranging from 101 cm to 105.5 cm, and length measurements ranging from 71 to 73.5 cm. 147. As for the cardigan, Mrs Guild claims copyright and design right in the original sample cardigan produced by Havelock. This too has apparently since been subject to various minor alterations, but Mrs Guild claims that the cardigans she made in 1996/97 were also made to the same basic original design subject to such variations. HH is an example, and is 98.5 cm wide at the bottom, with lengths varying from 75 cm to 77.5cm. 148. There is a similar lack of precision with regard to the designs of the sweaters. This aspect of her case involves an additional difficulty in that it raises a question as to the original design width of her sweaters — said to be uniformly 100cm. But garment LL, said to have been made to the design, is 90 cm wide under the arms and about 83 or 84 cm at the bottom, with lengths varying from 67.5 cm to 69 cm. NN, created in about 1996, is about 89 cm wide under the arms and about 86 cm wide at the bottom, with lengths varying from 67.5 to 69 cm. 149. What therefore are the dimensions of the garments in the protected designs? Two garments produced in the course of Mr Garnett's closing submissions, although not discussed in the evidence, were garments RRR and SSS, which I understand were original Havelock samples. RRR is a cardigan 93 cm wide under the arms, and about 81 cm wide at the bottom, SSS a cardigan 87 cm wide under the arms and about 77 cm wide at the bottom. I gather from Mr Garnett that the suggestion has been made that these garments have shrunk over the years. If so, then the unanswered question arises “shrunk from what?” If they have not, they do not help to Mrs Guild, but make confusion worse confounded. 150. There are, therefore, elements of discrepancy, at least on the question of width — and in particular in relation to the sweaters — between such evidence as there is as to the original designs and the dimensions of the garments pleaded by Mrs Guild as having been made according to those designs. Some element of discrepancy between particular garments is, I consider, likely to be inevitable — garments such as these will be likely to vary somewhat in their precise dimensions. These matters have caused me concern as to whether Mrs Guild has proved her case. I have, however, come to the conclusion that I can, should and do find that the original designs were for garments with widths of 100 cm, that the pleaded garments should be regarded as having been made substantially in accordance with the shape and dimensions of those original designs and that those garments provide the best evidence as to those designs. I therefore accept her case that I should regard the pleaded shirts, sweaters and cardigans having been made according to the original, designs, albeit with minor variations. No suggestion was made that Mrs Guild had made any material departure from them over the years. The weight of the evidence was that her designs have remained essentially unchanged over the years.

Originality Page33

151. It is not sufficient for Mrs Guild merely to prove her designs. She must also show they are “original”. The need for originality applies both to her copyright claim (see section 1(1)(a), her claim being that the her designs were for “artistic works” — namely, works of “artistic craftsmanship” — see section 4(1)(c)) and also to her design right claim (see section 213(1)). The only difference is that, for design right purposes, it may not be enough to show that the design is “original” in the copyright sense. This is because the design right claimant who successfully scales the ladder of copyright originality may then slide down the snake of section 213(4), which provides that a design will not be “original” for design right purposes if it is “commonplace in the design field in question at the time of its creation”. The section 213(4) point is in issue, but before Mrs Guild reaches the point at which she can argue it, she first has to prove that her claimed designs are “original” in the copyright sense. 152. My findings are that Mrs Guild had not created any sketches or other designs for any of her garments by the summer of 1991 but that she copied the basics of the design for her own sweater from the Gigli sweater she left with Mr Nabavi in November 1991. The Gigli sweater was 88 cm wide, a measurement shown in the original drawing for the sweater Mr Nabavi took to Havelock for the creation of the first sample. I have found that that sample came out at 100 cm wide, a width Mrs Guild decided to adopt for the sweater and also to use for the cardigan. I have also found that her shirt, designed slightly later, was originally based on the same essential dimensions. 153. Can that design, or those designs, be regarded as “original?” With some hesitation, I have come to the conclusion that they can. The mere copying of another's work will not entitle the copier to claim that his work is original for this purpose, even if the exercise involved an element of skill — which, in the case of garments so basic as these, I consider it would probably not. But in this case there was more to what happened than mere copying. There can be circumstances in which, if a sufficient level of independent skill and labour is applied in modifying a copy design, the totality of the modified design will qualify as an original design for copyright and design right purposes, and the level of skill and labour which has to be applied for this purpose is not a high one. In this case the width of the design was increased by 12 cm to 100 cm and that width was adopted for all three garments, which I am prepared to accept was a design decision by Mrs Guild (her case is of course that 100 cm was always the chosen width). In addition, I accept also that she brought her own skill to bear in designing a crossover collar for the sweater, as well no doubt as other details for it; and also made like use of her own skill and labour in designing the details of the shirt and cardigan. I find that the end result was that her designs for each garment were “original” in the copyright sense.

Did Mr Nabavi copy any of Mrs Guild's designs?

154. Mr Nabavi's primary defence to this case is that he did not copy any of Mrs Guild's designs. He admits he was influenced by things he learnt with her, in particular the buttoning style of her cardigans. But he denies any copying. There is no evidence that at any time during the commission by him of his alleged infringements he had any of her garments in his possession and he denies he did. He admittedly had the early manuscript drawings he took to Havelock in 1991 but he said he only rediscovered them after the action against him had been started and did not use them for his own garments. His case is that, like Mrs Guild, he has long been interested in wide, square garments. He was already developing his interest by 1991 and over the years after he and Mrs Guild split up in the summer of 1992 he developed it further. As early as 1991 he was, as I have found, producing garments of widths approaching or exceeding 100 cm. Over the following years he says he developed this style, and produced wide garments of varying designs and dimensions, including garments which are indeed ostensibly very similar to Mrs Guild's garments and of which complaint is made. But he says these were essentially all his own idea and, in relation to his shirts, for example, he enlisted Brigid Warner to design the details for him. If he was in the copying business, he could have taken a short cut towards achieving these details. Moreover, the dimensions and details of his and Mrs Guild's shirts and other garments, whilst very close, are not identical. 155. I have not found the copying issue an easy one. The difficulty Mrs Guild faces is that her designs are so basic and simple that the burden she has of proving that Mr Nabavi has actually copied them is considerable. She is not entitled to a monopoly in the concept, or idea, of the type of square garments in which she specialises. She is not entitled to a monopoly in garments of the particular dimensions she favours — although she does not appear to be very fussy about precise dimensions, since a few centimetres here and there do not appear to be particularly important to her. All she is entitled to do is to object to competitors taking for their own use and benefit the skill and labour she has put into her own designs: she can object if they independently come up with designs substantially similar to hers. If, for example, a competitor were to decide to design a wide, square sweater, and were to decide on a width of, say, 100 cm, then it may be that the end result would be much the same as Mrs Guild's. But it by no means necessarily follows that it would. For example, one simple design choice would be as to the sleeve lengths — whether they should fall to the hands, or be longer and require to be folded back. We have for long been told that there is nothing new under the sun, but fashion designers do not necessarily regard that dictum as applying to them. It is, I consider, dangerous to approach this case on the basis that the only way to design a square garment is the Guild way. 156. Mr Nabavi's case is that he has arrived at the design of his garments by independent design processes of his own. He is a designer who, as I find, likes — and has always liked — wide dimensions similar to those of Mrs Guild's garments, and I have referred to the garments of other designers who also do, or at least did. His case is that by the independent exercise of his own skills and labour, he coincidentally created shirts, sweaters and cardigans whose overall shape, dimensions and appearance just happen to be so close to those produced by Mrs Guild that the casual observer would, I consider, — and as I regard the evidence as proving — conclude that they were the work of the same hand. I in fact regard the closest of the comparisons as between the competing shirts, even though I accept that Miss Warner played an independent part in the details of the design of the collar and cuffs. The two cardigans (Mrs Guild's HH and Mr Nabavi's Y) are also very similar. The overall dimensions and style are essentially the same, although the cuffs and body rib on the Guild garment are substantially wider than those on the Nabavi garment, and the latter appear to reflect an independent design choice by Mr Nabavi. Mrs Guild's garments LL and NN and Mr Nabavi's garments AA and DD — all crossover V-neck sweaters — are also very similar in their overall style and dimensions, although again certain of the details are not identical. 157. Did Mr Nabavi copy the essentials of Mrs Guild's garments, whilst adding his own variations of style to matters of detail? Or did he arrive at the end result represented by each of his garments by a wholly independent design? In answering that question I have found it tempting to conclude that Mrs Guild's designs are so simple that any designer deciding to embark on the creation of a big square garment of a like generic kind as hers would be quite likely, if not inevitably, to arrive at garments with essentially the same overall dimensions and features. It is not difficult to move from this to the further conclusion that Mr Nabavi could quite easily have arrived at his design choices without any need to copy any feature of Mrs Guild's garments, a conclusion made easier by the fact that he had displayed considerable interest in the concept of wide garments before he met Mrs Guild. 158. Miss McFarland cautioned me against succumbing to that temptation and I consider she was right to do so. Ultimately, I have come to the conclusion that the elements of similarity between the three classes of garment in issue are so remarkable that, despite the admitted design differences, the inevitable inference is that Mr Nabavi must have copied the essentials of his designs from those of Mrs Guild and I so find. A comparison of the three types of his garments of which Mrs Guild complains with the wide chunky sweaters he was producing pre-Guild appears to me to reflect something of an overall sea change of design choices on his part. The change appears to me to reflect an obvious adoption by Mr Nabavi of the essential shapes and overall dimensions of the Guild garments, which are their most striking features. I do not, in so finding, suggest that he actually used Guild garments in designing his own. He may or may not have done. But he did not need to. He had been in at the conception, gestation and birth of all Mrs Guild's designs, he knew precisely what their essentials were and the reproduction by him of these essentials for his own purposes must have been the easiest of tasks. I find, therefore, that Mr Nabavi's garments did involve a substantial element of copying from Mrs Guild's garments and I find that what he copied can and should be regarded as the appropriation of the skill and labour which she had put into her designs.

Are Mrs Guild's designs ones for works of “artistic craftsmanship” or are any of the original samples such works?

159. Mrs Guild has to show this if she is to be entitled to copyright protection, otherwise she can at most be entitled to design right protection (see again sections 1(1)(a) and 4(1)(c), and, for the relationship between copyright and design right protection, sections 51 and 236). 160. I was referred to the decision of the House of Lords in George Hensher Ltd. v. Restawile Upholstery (Lancs.) Ltd. [1976] AC 64. It is not, however, easy to derive a clear principle from the speeches in that case, which did not all speak with one voice, as to how the courts should endeavour to identify whether a work is one of “artistic craftsmanship”. In Merlet and Another v. Mothercare PLC Page35 [1986] RPC 115, Walton J did, however, devote himself to an analysis of the right tests, by reference, inter alia, to the Hensherdecision, and I will approach the question on the basis that the Merlet decision provides the most convenient guidance. 161. I derive from it that, in deciding whether Mrs Guild's garments — or perhaps more accurately the original samples — are works of “artistic craftsmanship”, I have to assess them in the simplicity of their unworn state, although I respectfully question whether, in the case of a garment, it is not at least legitimate to view it on a mannequin. I have to be satisfied, first, that their creation reflected an exercise of craftsmanship, a concept Walton J held as in part requiring “a manifestation of pride in sound workmanship”. If they pass this test, I then have to be satisfied that they are works of art: Walton J came to “the reluctant conclusion that there exists a clear majority of voices in the House of Lords[in Hensher] for that view.” However, it is not for the court to make its own value judgment as to whether the object in question is or is not a work of art. It is a matter of evidence. A primary consideration, although not necessarily the only one is whether or not its maker had the conscious purpose of creating a work of art and, if he did — and provided he has not manifestly failed — then a work of art it will be. 162. I am not satisfied on the evidence that the sample garments — made as they were as prototypes for mass production — and being machine made garments than which few can come much simpler, can reasonably be regarded as works of craftsmanship. There is no evidence of any special elements of craftsmanship going into their manufacture, I do not consider anyone would regard that as a natural way to describe them, and my instinctive reaction is that they are not works of craftsmanship. Nor is there any evidence satisfying me that Mrs Guild intended to create works of art, or even regarded herself as an artist. She did not say so or suggest it, and I find it difficult to conclude other than that she chose to design and make garments of this particular style because it appealed to her and she considered it would also appeal as an original and attractive style to a material section of the buying public. Many types of garment will be made and sold on this basis, but considerations such as these will not by themselves justify an inference that the garments are to be regarded as works of art. However, I do not regard the designer's subjective intentions as necessarily conclusive one way or the other on this topic, and it may well be sufficient to qualify as a work of art for present purposes if the garment is one which can fairly be regarded as satisfying the aesthetic emotions of a substantial section of the public. One witness who suggested that Mrs Guild's garments were works of art was her friend, Mrs Lowe, but having ventured her view, she was also fairly quick to disclaim any special expertise in matters of art or fashion. I attach no weight to her view. Nor do I attach any weight to the fact that some of Mrs Guild's garments are displayed in the Victoria and Albert Museum. They are not there because anyone regards them as works of art, but because they are believed to be examples of new developments in the world of fashion. 163. The experts called by each side, Mr Herbert by Mrs Guild and Mr Guilbride by Mr Nabavi, offered their views on this topic, the former at considerable length, and they endeavoured to identify so far as they could the public reaction to Mrs Guild's garments. I do not propose to review their rival opinions in any detail, and issues such as this are very much a matter of opinion on which there are likely to be differences. On this particular topic, I had little hesitation in preferring Mr Guilbride's evidence and views. I find that none of the sample garments were works of artistic craftsmanship, and that Mrs Guild's designs were not designs for such works either. This means that Mrs Guild's claim, in so far as based on copyright, must fail.

Are Mrs Guild's designs “commonplace” in the relevant design field?

164. This is the section 213(4) point. It is relevant only to the design right claim. Mrs Guild cannot succeed on it unless she can show that her designs were not “commonplace” in the relevant design field. Mr Nabavi, supported by Mr Guilbride, contended that the design field into which Mrs Guild's garment slotted was a recognisable sub-division within the designer branded clothing market, which Mr Guilbride suggested could be and was one he referred to as the “sensual/philosopher” market. Mr Guilbride's opinion is that Mrs Guild's designs were commonplace in that design field. I find the “sensual/philosopher” concept an impossible one to identify with anything even remotely approaching precision, and I do not accept that it provides any sufficient guidance as to the relevant design field. I prefer, and accept, Mrs Guild's contention, supported by Mr Herbert, that the relevant field is the global one of ladies' luxury fashion, a field comprising ladies' luxury knitwear and ladies' shirts. 165. In performing this part of the inquiry, I must consider how similar Mrs Guild's designs are to the design of similar garments in that field made by persons other than the parties or persons unconnected with them. This exercise is one that has to be conducted objectively and in the light of the evidence (see Farmers Build Ltd v Carier Bulk Materials Handling Ltd [1999] RPC 461, at 482, per Mummery LJ). Whilst I do not regard Mrs Guild's designs as being the only ones that favoured the wide look, I regard the weight of the evidence, including the expert evidence, as pointing to the conclusion that, by the time she was creating her designs, their essential features were not commonplace in the relevant design field and I so find. I find in favour of Mrs Guild on her unregistered design right claim.

Partnership: a postscript

166. If, contrary to my finding, I had found that the design right became an asset of the partnership, I do not consider it would have afforded Mr Nabavi any defence. I reject the submission that, upon the dissolution of the partnership, he was given an implied licence to exploit the design right. Further, had it been an asset of the partnership, the four partners would have owned it jointly. Only the four of them jointly could have authorised Mr Nabavi to do what he did, but they did not.

Result

167. I find for Mrs Guild on her design right claim. I understand from written submissions presented after I had reserved judgment that there is likely to be an issue over the terms of any injunction I am asked to grant, and I will hear counsel on that as well as on the form of order generally. Miss McFarland asked me to award additional damages under section 229(3). I do not propose to do so. Although I have found Mr Nabavi's activities amounted to infringements, I accept that he did what he did in the belief that he was entitled to, and I am not satisfied that there are any special features about his conduct which justify an award of such damages.

The counterclaim

168. This is based on an allegation that prior to the writ Mrs Guild threatened proceedings for infringement of design right to Mr Nabavi's customers, in particular a threat to Maureen Doherty, who trades as “Egg”. It was contained in a letter of 26 September 1997. I understand that Miss Doherty stopped selling Mr Nabavi's garments. Mr Nabavi's counterclaim is for relief under section 253, but it follows that it fails. Crown copyright © 2014 Sweet & Maxwell