Colin the Caterpillar and the Art of War – why it is sometimes sensible not to enforce your legal rights

17th April 2021

Marks and Spencer has decided to add to the gaiety of the nation by issuing a legal claim in respect of Colin the Caterpillar, a chocolate cake.

The actual legal claim does not appear to be publicly available, but the news reports are that the action was launched in the last week at the high court.

Marks and Spencer is quoted as saying:

“Love and care goes into every product on our shelves. So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value”. 

It must have seemed a good idea at the time.


Hilarity has ensued.

The respondent to the claim, Aldi appears not to be taking the legal threat seriously.

And nor are many people on Twitter and other social media.

This mash-up of our old friends at Handforth parish council stood out in particular:


This has all the signs of a publicity disaster for Marks and Spencer.

So why did Marks and Spencer issue the claim?

And what should the company have thought about before bringing the action?


There is no doubt that Colin the Caterpillar is valuable to Marks and Spencer.

The product has recently celebrated its thirtieth birthday.

And Marks and Spencer have been long aware of competitors’ selling similar products, with the store itself telling us this on its dedicated Colin the Caterpillar page:

“We were the first to retailer to sell a caterpillar, with many supermarkets since trying to emulate this crowd-pleasing cake”.

Colin also has his own Wikipedia page.

And not only does he have these pages, he also has registrations on the trade mark registry.

(Trade mark has two words, by the way – we are not Americans, thank you.)

From a quick (no-exhaustive) search, it would appear that the term ‘Colin the Caterpillar’ was registered in 2009 – though given it had been on sale previously it may have had other intellectual property protection beforehand.


This search also showed that last year in 2020 there was a further registration for Colin’s packaging:

The happy news can also be revealed that Marks and Spencer has also registered the term Connie the Caterpillar – though not her packaging.

All three registrations are in respect of class 30:

These registrations in practice and in principle confer a commercial monopoly in products within that class.

(Please note: although I have general knowledge of trade mark law, I am not a trade mark specialist, and there will be things I will have missed – and I am happy to hear from any trade mark specialists in the comments below.)

Here it is important to note that what is protected with these registrations is the name and the packaging of the cakes – and not the cakes and their ingredients themselves.

Colin the Caterpillar and his box are protected, not the concept of a chocolate roll with a happy face on it.


One of the problems with trade mark law and practice is, in very general terms, that if a protected thing becomes too generic, you can lose the legal protection.

That is why trade mark holders often seem over-vigilant in asserting their legal rights.

Disney for example will assert their rights fearlessly, despite the ridicule and opprobrium.

Readers of a certain age will also remember letters to the press from Portakabin.

No doubt Aldi itself has its own trade mark lawyers who will send out stiff letters to infringing competitors.

(Indeed there are marks registered to various Aldi entities that presumably they would want respected.)

And as Marks and Spencer itself admits on its own website, there are other stores seeking to ’emulate’ the Colin cake.

One tweeter helpfully provides us with examples:

As does another:


So: the commercial predicament of Marks and Spencer was as follows.

The company had a popular, valuable and distinctive well-established product.

This was a product that took expense to make and also to promote.

The product was protected with registered trade marks for both its name and its packaging (as well as, no doubt, other intellectual property protections such as ‘passing-off’.)

The company faced competition from other stores with similar products.

Some of these rival chocolate caterpillars had similar names and packaging.

What was a company in that position do?


Here we come to the old distinction between having a legal claim and asserting it.

In essence: just because you have a legal right, it does not necessarily follow that it should be asserted or enforced.

And if a decision is made to assert and enforce a legal right, you have to think through the implications and reactions.

Some companies like Disney will know there is a negative reaction to their enforcement of legal rights – but in such cases the cost-benefit analysis is that the rights are too valuable to lose to the public domain.

And such a robust approach is common in industries where the commercial value is largely in intellectual property.

A cartoon mouse and a portable cabin are not especially complicated things – so what is bought, sold and licensed is often the intellectual property of thing, rather than the thing itself.

And much the same can be said of a long chocolate roll decorated with sweets and icing.

One can imagine how the commercial and legal teams at Marks and Spencer knew that competitors with products with similar names and packaging was creating a commercial and legal risk.

It may well be Cuthbert today, but tomorrow it could be Colvin, and before they knew it there would be Colin the Caterpillars everywhere in every store.

And Colin the Caterpillar’s registration renewal was coming up in 2028. 

What else could they do?




They should have thought it through.

Presumably there had already been pre-action correspondence between the parties – it is rare for a company to issue a claim in the high court without setting out the case first in correspondence, and there are costs implications if a party does.

And presumably Aldi had denied the claim in correspondence.

Aldi thereby knew what was coming – and not only its commercial and legal departments, but also its media teams and external PR advisers.

Marks and Spencer do not appear to have issued a press release about the claim, but somehow, some way the media soon knew about the claim.

Perhaps this was because of a vigilant court watcher, or a tip-off from somebody, or even part of a media strategy: who knows.

But once the claim was issued at the high court, the dispute went from one set out in private and confidential correspondence between the parties – and into the public domain.

In essence: you lose control of the story.

And when the story is as media-friendly as about chocolate caterpillars called Colin and Cuthbert then there is a high probability that the media will become aware.

But from the news reporting it seems that Marks and Spencer have been caught unawares – while the Aldi press office is having a party with social media generally.

So the question has to be asked: was/is protecting the Colin the Caterpillar name and packaging worth it?

Unlike a cartoon mouse or a portable cabin, Colin the Caterpillar does not go to the heart of Marks and Spencer.

Had Aldi promoted an own-brand range of goods called, say, St Michelle then that would have been different.

And – and I defer here to trade mark lawyers – it may have been perfectly possible to renew the trade mark in 2028 even taking the (current) challenge of Cuthbert at its highest.


A view had to be taken on the risk of litigation against the risk of not litigating.

As the Art of War showed (and that is still the best practical guide to civil litigation) being able to attack is not the same as it being a good idea to attack.

Here one can ask McDonalds about McLibel – or the British Chiropractic Association and its illiberal and misconceived claim against Simon Singh.

And if the decision is made to litigate then a claimant must be prepared for what can happen next – in terms of commercial and media matters, as well as at law.

This is not to say that people and companies should not assert and enforce their legal rights – indeed, that is what legal rights (and lawyers) exist for – but that the decision to do so is always distinct and separate from being able to do so.


Declaration: as the blogger ‘Jack of Kent’ I helped co-ordinate the defence campaign in British Chiropractic Association v Singh and I practice in media law as a solicitor, although not in respect of chocolate caterpillars or supermarket stores.


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You say you want a ‘written constitution’? Here are four online places where it is already written down.

26th March 2021

Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.

Having a written constitution, it would seem, would just make things better  – rather than, as is my view, probably make things just as bad but differently.

(On my scepticism about written constitutions as a panacea see my Prospect piece.)

But this post comes at the topic from a different angle.

Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.

And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.

Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.

Note, however, that each of these are practical rather than academic or theoretical materials.


The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.

Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.

You can click and read the pdf here.


So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.

Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.

This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.

You can click and read the pdf here.


We move on now from the executive to the legislature, that is parliament.

The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.

More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.

Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.

You can click and read it here.


And now, finally to the judiciary.

In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).

The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.

This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.

A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.

You can read Part 54 here and its attendant practice direction here.


Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.

Enjoy clicking and reading.


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A close reading of public domain information regarding the settlement between Philip Rutnam and the Home Office

5 March 2021


 ‘Time to form a square around the Prittster’

– prime minister Boris Johnson, as reported on 20th November 2020


‘Expected value is the product of variable such as a risk multiplied by its probability of occurrence’

– Central Government Guidance on Appraisal and Evaluation (‘the Green Book’), 2020 edition, p. 140


We now know what appears to be the financial value of a square formed about the Prittster.

According to my Financial Times colleague, the well-connected Sebastian Payne, the cost of yesterday’s settlement of the claim brought by Philip Rutnam against the home offic is at least £340,000 plus £30,000 of legal costs.

There would also be other costs incurred by the home office, including for its own external counsel.

This is a substantial – indeed extraordinary – amount of money for a settlement of a claim – especially when on other matters the home office are often somewhat parsimonious over similar amounts of money


So what can be worked out about this settlement?

Let us start on a light note with how the news of the settlement was released.

Here we should imagine a zoom call discussion between a home office lawyer and media advisor:

Media adviser – How do we spin – I mean present – the settlement with Rutnam?

Lawyer – We can say we have settled without admitting liability

Media adviser – Doesn’t that just mean the same thing as the case has settled?

Lawyer – Yes, but political reporters will not know that

Media adviser – Ok – but can we pad it out even more?

Lawyer – We can also say that we were right to defend the case

Media adviser – But isn’t that just another way of saying no liability is admitted?

Lawyer – Yes 

Media adviser – So we should say in effect that we have settled because we settled because we settled?

Lawyer – Exactly

Media adviser – And that will fill up their ‘breaking news’ tweets leaving little room for anything else – oh, that is genius

Lawyer – Thank you, that is kind


All that government statement says in that statement is that the home office has settled the case, three times.


More important – and interesting – is how that settlement amount was authorised.

The home office released this statement yesterday:

‘The government and Sir Philip’s representatives have jointly concluded that it is in both parties’ best interests to reach a settlement at this stage rather than continuing to prepare for an employment tribunal.’

This statement shows that a decision was made by the government to settle rather than to proceed to trial.

The statement also expressly states that this decision was made in the government’s best interests.

This indicates – if not demonstrates – that the decision to settle was made in accordance with the principles set out in the ‘Green Book’ – the common name for Central Government Guidance on Appraisal and Evaluation.

The Green Book sets out how a government department should approach dealing with liabilities and risks.

In essence, the Green Book provides the basis for how cost-benefit analyses are conducted in Whitehall.

In civil service speak: ‘[e]xpected value is the product of variable such as a risk multiplied by its probability of occurrence’.

The ‘concluded…best interests’ language of the home office statement means that a decision was made that settlement was more beneficial to the home office than the risks of proceeding with the case.

Or more bluntly: the home office realised it was likely to lose at trial and to lose badly.

Only if this decision was made on that basis, would – absent a ministerial direction overruling officials – such a payment be permissible in accordance with Green Book principles.

And the ‘concluded…best interests’ language tells against any ministerial direction (which, in any case, would one day be disclosed).

So, if this assumption is correct, then the case was closed down not (just) to save a minister from embarrassment but because of the real risk of a heavy defeat at the tribunal – a defeat which ran the serious risk of costing the home office more than £370,000.

The prime minister may have wanted a square to be formed around the Prittster – but that would not itself explain a payment made in accordance with Green Book principles.


And so we come to the claim.

The amounts recoverable from most employment tribunal claims are capped, and so an employment tribunal claim even by a highly paid senior civil servant would not normally result in compensation in the area of the amount paid in this settlement.

And employment tribunals do not normally award costs – in lawyer speak, costs do not ‘follow the event’.

So what was different here?

If we go back to the statement made by Rutnam’s trade union when the claim was launched, there is a clue:

‘This morning, Sir Philip, with the support of his legal team and the FDA, submitted a claim to the employment tribunal for unfair (constructive) dismissal and whistleblowing against the Home Secretary.’

This was, in part, a whistleblowing claim.

And as such – under sections 103A and 124(1A) of the Employment Rights Act 1996 (as amended) there is no cap on compensation if the reason – or principal reason – for the dismissal is in respect of a protected disclosure.

On this basis, and given the settlement amount, the claims made were regarded (at least potentially) as principally a whistleblowing case.


But – is not this case more about bullying than whistleblowing?

Here a passage in this Guardian report may be relevant:

‘Rutnam’s case was expected to focus on his claims that in late 2019 and early 2020 he challenged Patel’s alleged mistreatment of senior civil servants in the Home Office, and that he was then hounded out of his job through anonymous briefings.

‘Reports claimed that a senior Home Office official collapsed after a fractious meeting with Patel. She was also accused of successfully asking for another senior official in the department to be moved from their job.

‘Rutnam, a public servant for 30 years, subsequently wrote to all senior civil servants in the department highlighting the dangers of workplace stress. He also made clear that they could not be expected to do unrealistic work outside office hours.’

Under section 1 of the Public Interest Disclosure Act 1998 there are many ways a disclosure can qualify for legal protection – but the key thing is that such disclosure can be internal to a workplace, even to a boss, and not external disclosure to, say, the press.

On the face of the available information, and on the assumptions made above, it would appear that:

(a) in 2019-20 Rutnam made one or more disclosures internally within government in respect of workplace bullying;

(b) his claim for unfair dismissal in April 2020 had as a principal ground that such disclosure was the main reason for his constructive dismissal; and

(c) by March 2021 it was plain to the home office that this principal ground would be likely to succeed at trial.

Unless these (or similar) facts are true, then it is hard to explain why the home office, following Green Book principles, would settle this claim, for this amount, and at this time.


And so now: timing.

The obligations under the Green Book are constant and so would have been just as applicable when the claim was made as they are now.

But the home office waited nearly a year before settling the claim.

And a trial was fixed for September this year.

So something must have happened for the claim to have settled now rather than before now or later.

Something must have tipped the Green Book decision-making in favour of settlement.

There is more than one possibility for this.

It may well be that this was just when the settlement negotiations happened to come to an end, and the Green Book decision happened some time ago.

Or, if you are a conspiracy theorist, you can posit political pressure and even intervention – even though there is no evidence of a ministerial direction.

Or it could have something to do with the judicial review just launched by the FDA trade union in respect of bullying and the ministerial code.

But the most likely explanation is that something has happened in the litigation process that has changed things.

In civil litigation such a shift can sometimes be explained by some sort of costs tactic – where one side springs an offer with such costs implications which, in the words of the noted jurist Don Vito Corleone, is an offer that the other side can’t refuse.

But such costs traps are (I understand) uncommon in employment tribunal cases where there is a special costs regime.


So if not costs, then evidence.

At this stage of this sort of claim, there would be what is called a ‘disclosure’ exercise where the parties ascertain and share the relevant documentary and witness evidence.

It is the one moment when the parties get to see the actual strengths and weaknesses of their cases.

Other than in respect of costs traps, it is the one stage where claims are most likely to suddenly settle.

On this basis, the most plausible explanation for a claim that launched in April 2020 and was scheduled to be heard in September 2021 to settle in March 2021 is that some documentary or witness evidence has emerged – or has failed to come up to proof.

And given the nature of the claim and the amount at which the parties have settled, this development in respect of documentary or witness evidence would have to be in respect of a protected disclosure under the Public Interest Disclosure Act.


So if this is a whistleblowing case, does that mean the settlement silences the whistle?

Here one answer is given by section 43J(1) of the Employment Rights Act 1996:

‘Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.’

A similar answer is given by the Cabinet Office Guidance on Settlement Agreements, Special Severance Payments on Termination of Employment and Confidentiality Clauses:

‘Staff who disclose information about matters such as wrongdoing or poor practice in their current or former workplace are protected under PIDA, subject to set conditions, which are given in the Employment Rights Act 1996. This means that confidentiality 4 Settlement Agreements – guidance for the Civil Service – 18-July- 2019 clauses cannot and should not prevent the proper disclosure of matters in the public interest.’

On this basis, it is unlikely that the settlement agreement will contain such a confidentiality clause or, if it purports to do so, whether it would be enforceable.

The whistle is not silenced – at least at law.

It may well be that Rutnam believes his internal disclosures were sufficient.

Or it may well be that there may be another appropriate opportunity for disclosure, perhaps related to the FDA judicial review case.

We do not know.


But what we do know that the government has gone from this (as reported in the Guardian):

‘After a report in the Times highlighted tensions between Rutnam and Patel, sources close to Patel were quoted in several newspapers as saying that Rutnam should resign.

‘In an article in the Times, allies of the home secretary said he should be stripped of his pension, another source in the Telegraph said he was nicknamed Dr No for negative ideas, while one in the Sun likened him to Eeyore, the pessimistic donkey from Winnie the Pooh.

‘At that time the prime minister’s official spokesman said Johnson had full confidence in the home secretary and in the civil service, though the same guarantee was not given to Rutnam specifically.’

To this, in yesterday’s statement:

‘Joining the civil service in 1987, Sir Philip is a distinguished public servant. During this period he held some of the most senior positions in the civil service including as Permanent Secretary of the Department for Transport and the Home Office. The then Cabinet Secretary wrote to Sir Philip when he resigned. This letter recognises his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service.’


‘The government regrets the circumstances surrounding Sir Philip’s resignation.’

We can bet they do.


So, on the basis of the above we can perhaps understand how and why the government has settled at such a high payment.

The amount is not only ‘substantial’ – it is extraordinary.

And it can be explained best by an understanding of the Green Book as applied to the effects of relevant employment and whistle-blowing law in this particular case.

But what is perhaps most notable in yesterday’s statement from the government is what it does not say.

In his resignation statement, Rutnam said:

‘In the last 10 days, I have been the target of a vicious and orchestrated briefing campaign.

‘It has been alleged that I have briefed the media against the home secretary.

‘This – along with many other claims – is completely false.

‘The home secretary categorically denied any involvement in this campaign to the Cabinet Office.

‘I regret I do not believe her.’

As well as several other serious accusations against the home secretary.

Not one of these accusations is withdrawn – not even ‘clarified’.

The home office instead now commends ‘his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service’.

If any square has formed, it is now around Rutnam and not the Prittster.


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Each post on this blog takes time, effort, and opportunity cost.

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Comments are welcome, but they are pre-moderated.

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What lawyers can be blamed for – and what they cannot be blamed for

4th March 2021

My column this month at Prospect magazine is about lawyers and what they can and cannot be blamed for.

Please click here and read the column.

(Please do – the more clicks I get for commissioned pieces like that column, the more I can provide commentary on this blog for you and others.)

The rest of this post below amplifies a couple of points made in that column.


The view I put forward in the column is neither of the usual ‘takes’ on this problem of the ages.

The first usual take is blame the lawyers for anything and everything about the law and what it does and does not do to individuals.

The second usual take – equal and opposite to the first take – is to deny that fault is ever with the lawyers and to aver that any fault is instead with the clients, or the courts, or something else.

This latter approach is sometimes the deft go-to response for lawyers seeking to evade any censure or criticism for their work.

There will be those – perhaps reading the column or this post – who are happy with either of these views and do not wish to have those settled precious positions disturbed.

My column and this post is not for them.


The unpleasant truth is that the suffering of number of people in real life depends on just how good a lawyer is at their job.

Take for example the following cases:

  • lawyers in the United States providing the best possible legal cover for torture and the infliction of other inhumane treatment;
  • lawyers again in the United States appealing court decisions so as to ensure that a prisoner is killed before there is a possibility of clemency under a newly elected president;
  • lawyers acting for pharmaceutical companies enforcing patents so that treatments are practically unavailable for those in pain;
  • lawyers acting for insurance companies using obscure tort case law on causation so as to avoid pay-outs to those requiring compensation for medical fees,

and so on.

This is, of course, not new.

Without even affirming Godwin’s Law, one can point to the English lawyers who long provided legal cover for the slave trade.

As a direct consequence of the dedication, skill and ability of the lawyers involved, there is (and has been) more human misery in this world than otherwise would be the case.


Often the excuse offered for lawyer culpability is an appeal to the judge-fairy.

This is to say that it is for a court to to determine guilt or innocence, or civil liability or no liability, and not the lawyers.

 But very few cases get to court where the judge-fairy can wave a magic wand (or magic gavel, if not in England) and put everything right and just.

Almost all civil cases end in settlement.

And, if a lawyer has done their job well at early stages of a process, nobody will bring a civil claim any way, regardless of loss and damage.

Some people will plead guilty in criminal cases rather than run the risk of the consequences of a guilty verdict, regardless of their actual innocence, because of the case against them or the prosecutors employed.

And others will, because of solid legal advice, be always at least one step away from any criminal culpability.

So, no: invoking the judge-fairy is not enough.

The craft and practice of law is often in avoiding anything ever getting close to the uncertainty of a court hearing.



As I set out over at Prospect lawyers may be to blame for many things, but they are not (usually) to blame for the laws.

Lawyers and their clients can only get away with what the law – both in terms of substance and procedure – allow them to do so.

And it is often a public benefit – counter-intuitively – that those with power have good legal advice rather than bad legal advice or indeed no legal advice.

For those with power will still use that power anyway.

Perhaps this view is just to replace the judge-fairy for a legislature-fairy.


But it was so telling when Rudolph Giuliani could not bring himself to mislead the court for the benefit of his client Donald Trump and allege fraud.

Even Giuliani had to act within the boundaries set by legal and professional rules.

Even Giuliani.


And in certain circumstances lawyers can even be excused their clients.

In England and Wales, as is well-known, barristers follow a cab-rank rule for cases before domestic courts (though this rule does not cover their often lucrative appearances before non-domestic courts).

This cab-rank rule, in turn, is an application of a more general approach of the law to those who provide(d) certain key services – another example is the law of common carriage and the rules that oblige(d) those who kept inns, toll-roads, ferries, bridges, and so on, to provide, in principle, a general service to all-comers.

The cab-rank rule is thereby a public good.

It ensures that everyone is entitled, in principle, to the same standard of advocacy and representation.

Yet what is less well-known is that the majority of lawyers in England and Wales – solicitors – are not under the cab-rank rule, and so can pick-and-choose clients and areas of law.

But even solicitors (of whom I am one) cannot be blamed for the law on which they advise.

Lawyers can be blamed for many things – perhaps far more than many lawyers would like to admit – but they cannot be blamed for the law.


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