Case No. IP-2014-000051

ce, Rolls BuildingFetter Lane, London, EC4A 1NLBefore:HER HONOUR JUDGE MELISSA CLARKE Between: Mr Thomas Moody-Stuart, QC (instructed by Acumen Business Law) for the ClaimantMr Gwylim Harbottle (instructed by Palmer Biggs Legal) for the DefendantsHearing dates: 8 and 9 June 2016JUDGMENT Her Honour Judge Melissa Clarke: INTRODUCTION 1.This is a reserved judgment following the trial on 8 and 9 June 2016 of a claim for trade mark infringement and passing off which was issued in the Intellectual Property Enterprise Court on 17 November 2014. 2.The Claimant (“Oran”) is an Irish company, based in the town of Oranmore in Galway, which manufactures and sells precast concrete products. It is a family company which was set up by two brothers and a brother-in-law: Michael Melville, Peter Melville and Donall Dooley (married to their sister Noreen Mary Melville) in order to continue the existing family precast concrete business run since the mid 1970s through a previous company. Oran was incorporated in 1996 and has sold and offered for sale precast concrete products and related design and construction services in Ireland since that date and in the UK since 2008. Since its incorporation it has utilised a large number of other family members from that and the next generation as directors and employees. 3.The First Defendant (“Oranmore”) is an UK company based in Weeting, Norfolk. It also manufactures and sells precast concrete products and sells related design and construction services. It was incorporated in October 2011 and has traded in the UK since March 2012. The Second Defendant (Ross Melville) and Third Defendant (Richard Burke) are the founders and directors of Oranmore. Ross Melville was formerly a director of Oran. Richard Burke was formerly Oran’s General Manager. They are related to many of the current directors, shareholders and employees of Oran by marriage or blood. Ross Melville is Michael Melville’s son. Richard Burke was married to Donall Dooley’s daughter Linda. From October 2011 to September 2014 Ross Melville was a director of both companies, Oran and Oranmore, simultaneously.4.This case, therefore, involves a family dispute in a business context.5.Oran is represented before me by Mr Thomas Moody-Stuart, Queen’s Counsel, and the Defendants are represented by Mr Gwylim Harbottle. They both filed comprehensive skeleton arguments. On 18 July 2016 I invited further submissions on two authorities which had not been cited to me but on which I proposed to rely. Both Mr Moody-Stuart and Mr Harbottle took the opportunity to file further written submissions on 20 July 2016. I thank both of them very much for their clear and concise skeleton arguments, their skilful written and oral submissions and the efficient, timely and effective manner in which they conducted the trial. WITNESSES 6.By a case management order dated 26 November 2015, His Honour Judge Hacon identified a list of issues. He permitted Oran to serve no more than five witness statements dealing with the issues of confusion and deception and two witness statements dealing with the other issues. He permitted the Defendants to serve two witness statements.7.Oran did not use its full allotment of witnesses. I heard from three officers/employees of Oran: Derek Duffy (Managing Director); John Dooley (Director); and Christina Lines (Senior Quantity Surveyor). Derek Duffy and John Dooley filed two witness statements each and Christina Lines filed one. All were cross-examined and re-examined.8.The Defendants called Richard Burke and Ross Melville, to give evidence for themselves and for Oranmore. They each filed two witness statements and were cross-examined and re-examined. On 6 May 2016 I permitted the Defendants also to rely on paragraphs 1 to 9 of the witness statement of Sean Sharkey, a previous employee of Oran and now the commercial manager of Hollowcore Solutions Limited, a company which exclusively provides design and management consultancy services to Oranmore and which is based on the same industrial estate in Oranmore, Galway, in which Oran is based. He also carries out freelance sales for Oranmore. He was cross-examined on that evidence.9.The main witnesses were John Dooley for Oran and Ross Melville and Richard Burke for Oranmore.10.John Dooley presented as an articulate, courteous and controlled witness, but it was clear to me that he is hurt by, and resents, what he perceives to be the unfair actions of his first cousin and ex brother-in-law in setting up Oranmore and trading in identical products to Oran. As he gave his evidence he struck me as a non-confrontational person who would harbour that sort of deep resentment mainly in silence, only allowing it to surface in the form of occasional angry and sarcastic comments. As a witness, I found him to be basically honest but capable of misrepresenting the truth in order to further his case. I have no doubt that he felt that was justified, but of course it is not. For example, his evidence that: “the negotiations which led to me signing [the Compromise Agreement] in May 2013 were all one continuous chain of discussions which started in 2011 and had nothing to do with Oranmore” sits ill with Derek Duffy’s evidence, which I accept, that (i) Oran did not feel able to bring a claim for use of the Oranmore name until Richard Burke’s back pay claim had been settled; and (ii) “the dispute with Richard as to his severance and his claim for €600,000 was resolved in May 2013 and it was a week or so later that we met with Acumen Business Law for the first time. We were advised to apply for a UK trade Mark for the Claimant’s trading name. I discussed this with the Claimant’s directors (with the exception of Ross… and Michael…) and we agreed that I would instruct Acumen Business Law to apply for a Trade Mark in the UK, which I subsequently did”. I found Ross Melville to be a more obviously unsatisfactory witness. He was rather evasive and argumentative, resistant to giving a direct answer if he felt it might compromise his position, and on a number of occasions sought to establish what the line of questioning was seeking to establish before answering the questions. Richard Burke was less emotionally involved, gave his evidence in a more straightforward fashion and made the odd concession where necessary, but on a central point of whether he knew that Oran objected to the use of the Oranmore Signs I found him to be less than truthful. I treat the evidence of all three witnesses with some caution. For those reasons I don’t prefer the evidence of one or the other where there is a dispute, but seek corroboration from other credible evidence or the inherent probabilities of the matter before weighing the competing arguments and deciding which account is more likely than not.11.I found the minor witnesses Christina Lines, Sean Sharkey and Derek Duffy to be honest and credible witnesses who did their best to assist the court. Sean Sharkey’s evidence was limited in subject matter and, ultimately, of limited assistance. I found Christina Lines to be a particularly reliable and impressive witness. Derek Duffy made appropriate admissions and was careful only to provide evidence within his own experience. I do not accept some of his evidence but I do not believe he sought to actively mislead the court. PARTIES’ POSITIONS The claims 12.Oran claims for infringement of its UK registered trade mark number 3021545 for the mark ORAN PRE-CAST (“the Registered Mark”) in respect of the Defendants’ use of the signs ORANMORE PRE-CAST / ORANMORE PRECAST / ORANMORE (in the form of the internet domain www.oranmore.co.uk ) (the “ORANMORE Signs”) both with and without the First Defendant’s Device (set out in Annex 1 to this judgment). Oran applied for the Registered Mark on 11 September 2013 and it was registered on 6 December 2013. The trade mark infringement claim therefore relates only to Oranmore’s trade after 6 December 2013. 13. Oran claims for passing off in respect of the Defendants’ use of the ORANMORE Signs both with and without the First Defendant’s Device. The passing off claim relates to Oranmore’s trade since it started trading in March 2012. Undisputed issues 14.Oran’s pleaded case is that the acts of Oranmore are procured and controlled by Ross Melville and Richard Burke and are carried out pursuant to a common design of all three defendants. Specifically, Oran pleads that Ross Melville and Richard Burke were responsible for the choice of Oranmore’s company name and the decision to use the ORANMORE Signs and the First Defendant’s Device. For the purposes of this claim, Ross Melville and Richard Burke admit liability for any such acts of Oranmore found to be unlawful.15.Issue 1 (the nature of Oran’s goodwill) is no longer contested by the Defendants who accept that Oran supplied identical and similar goods and services in the UK, including Hollowcore, to those traded by Oranmore both before and after Oranmore’s incorporation and commencement of trade.16. Issue 2 (Oranmore’s trade) is no longer contested by Oran, which accepts that Oranmore has traded in Hollowcore, precast concrete products, stair flights, landings and floors since March 2012.17.It is common ground that Oranmore has used the ORANMORE Signs in respect of goods and services identical or similar to the goods and services for which the Registered Mark is registered, namely Classes 19 (preformed concrete building elements; Hollowcore flooring; concrete beams; concrete columns; concrete twin-wall materials; concrete plate flooring; concrete building frames; concrete stairs; concrete balconies), 37 (construction project management services) and 42 (design of buildings). There is identity in respect of the central goods and services in respect of which Oranmore trades, namely preformed concrete building elements, twinwall, Hollowcore flooring, concrete beams and columns, concrete stairs and construction management services. Oran’s position - Infringement 18.Oran relies on trade mark infringement under section 10 (2) of the Trade Mark Act 1994 (the “1994 Act”). The issues relevant to this are Issues 3 to 5 and 10. Also relevant are Issues 13 and 14, as lack of consent is necessary for founding the cause of action. However the parties have treated consent as a defence and so I will refer to it below. Oran relies on evidence of what it says are a number of instances of actual confusion, but says that even without such evidence, the names ORAN PRE-CAST and ORANMORE PRECAST are simply too close to co-exist in competing businesses without confusion. Oran’s Position - Passing off 19.Oran’s case is that the ORANMORE Signs with or without the First Defendant’s Device are very closely similar to Oran’s trading style (namely the word mark ORAN PRE-CAST and the OP Device set out in Annex 1 to this judgment) and in each case their use is likely to lead to deception on the part of the public which has damaged, and is likely to further damage, its trade. The relevant issues are Issues 6 – 10. In order to show deception it relies on the same evidence of confusion as it relies on in the infringement claim. Oranmore’s Defences 20.The Defendants plead three defences:i)they assert that Oran has consented to the use by Oranmore:a)of the ORANMORE Signs, by an email sent from John Dooley, a director of Oran, to Ross Melville on 7 December 2011 (the “7.12.11 Email”). Strictly speaking, consent is not a defence to infringement. Rather, lack of consent is part of the cause of action. However having raised consent, it is common ground that it is for the Defendants to prove it. The relevant issues are Issues 13(a), 13(b) and 14; and b)ii)alternatively, they rely on the 7.12.11 Email and the Copyright Licence as constituting encouragement on the part of Oran to Oranmore to develop its business under the ORANMORE Signs amounting to acquiescence to the use now complained of. The relevant issues are Issues 15 - 20;iii)they assert that the claims were released and/or discharged pursuant to a compromise agreement entered into by exchange of three letters between Oran and Richard Burke on 17 May 2013 as further described below (the “Compromise Agreement”), in which Oran stated that it had “no claim against you, Richard Burke, in contract, common law and/or statute”; and this had the effect of releasing him from:a) any claims that Oran may have had against him as at 17 May 2013, including claims arising out of the use of the ORANMORE Signs or the First Defendant’s Device; and b)any claims that Oran may have against him arising out of the continued use of the ORANMORE Signs or the First Defendant’s Device after 17 May 2013; and that the effect of such release and/or discharge was also to release and/or discharge Oranmore and Ross Melville, as joint tortfeasors with Richard Burke if such claims were proven, from any liability to Oran. The relevant issues are Issues 21 – 23.21.If the Compromise Agreement defence is successful it will be an answer to the entire claim. Accordingly, I will consider the Compromise Agreement first. COMPROMISE AGREEMENT Relevant matrix of facts The setting up and trading of Oranmore 22.Except to the extent stated, these facts are not in dispute. As I say, Oran had been in the business of manufacture and sale of precast concrete products in Oranmore since 1996. In fact the family had been in that business for longer, since the mid 1970s, albeit through a different company. 23.Richard Burke became the General Manager of Oran in June 2002. Oran began trading in the UK under the mark ORAN PRE-CAST and the OP Device in the course of 2008. Ross Melville was appointed a director of Oran in September 2010. Following his appointment, the directors of Oran comprised Donall Dooley and his son John Dooley; Michael Melville and his son Ross Melville; and Peter Melville and his son Alan Melville. Richard Burke continued as General Manager.24.In mid 2011, Richard Burke and Ross Melville became aware that the lease of a pre-cast concrete manufacturing facility in Weeting, Norfolk, UK (the “Weeting facility”) was back on the market. Oran had previously looked at leasing the Weeting facility in 2008, but Tarmac took a three year lease instead. That lease was coming to an end and not being renewed. In late summer of 2011 they proposed to Oran’s board that Oran acquire the lease to facilitate the expansion of Oran’s trade in the UK. Oran rejected the proposal. There is a dispute about whether this happened in late September or mid-October 2011, and how exactly it happened. Nothing turns on this for the purposes of construing the Compromise Agreement, as it is accepted by the Defendants that, at the latest, by the time of an Oran board meeting held on 18 October 2011 Richard Burke and Ross Melville knew that Oran had ceased considering acquiring the lease of the Weeting facility. 25.Despite that, Richard Burke and Ross Melville continued their due diligence into the Weeting facility and entered into negotiations for the acquisition of the lease on their own account. On 21 October 2011 they incorporated Oranmore in the UK and became directors of it. They accept they could have informed, but did not inform, the other Oran directors of their intentions to take over the Weeting facility through the vehicle of a proposed new company at the 18 October 2011 board meeting.26.Richard Burke and Ross Melville say that they reached their decisions in the context of a decision made by Oran in April 2011 to cease selling Hollowcore into the UK market. Oran dispute that any such decision was made. Its position is that it had made a temporary decision to move its focus away from the UK Hollowcore market in light of unusually high transport costs between Ireland and the UK at that time, which reduced the profit margins that could be made from Hollowcore to uneconomic levels. Whether Oran had made a decision to pull out of the UK market or not is a dispute I will need to resolve. 27.In the first week of December 2011, John Dooley undertook a UK company search and discovered that Richard Burke and Ross Melville were directors of the newly incorporated Oranmore. At a meeting between those three parties in the first week of December, John Dooley told them that he was aware of the existence of such a company and what it was called, so they should tell him its name. They confirmed that it was called Oranmore. There is a dispute between the parties about whether there was any discussion of what the trading name of the new company would be. John Dooley’s evidence is that he asked if it would trade under that name and Ross Melville told him “it could be anything, it’s a work in progress.” Ross Melville disputes that, and both he and Richard Burke say that John Dooley did not make any comment or complaint about the name of Oranmore. That is a matter I will have to determine. I note as an aside that all parties accept that by the time of entry into the Compromise Agreement in May 2013, Oran was aware that Oranmore was trading under that name.28.On 7 December 2011 John Dooley sent Ross Melville the 7.12.11 Email from his personal email address, which stated: “I just wanted to send this email with regard to the new venture. I really don’t have a problem with the overall situation now that it’s out in the open. I personally don’t have a problem with Vinny’s redundancy situation, I would like to get some clarity on Richards [sic] situation and maybe firm up on the timescale and we can all then get our focus back. The 3 of us need to sit down and make some decisions on OPC when you get back. I’m sure there will be opportunities for both companies to help each other out going forward. I had a couple of good conversations with Richard on Monday and Tuesday about it and I believe if we all pull together and be straight up about things we shouldn’t have any problem. Again, I do wish ye luck with it.” The Defendants rely on this as an unlimited, irrevocable consent provided by a director of Oran to use the ORANMORE Signs in renunciation of Oran’s own rights. Oran says it is nothing of the sort, merely a friendly email sent in his personal capacity with no intention to bind Oran. This is a matter I need to determine.29.On 8 December 2011, Oranmore signed a 10 year lease for the Weeting facility.30.It is Oran’s case, strongly disputed by the Defendants, that Ross Melville was asked by Alan Melville, a director of Oran, in John Dooley’s presence and immediately before an Oran board meeting on 13 December 2011, to change the company name of Oranmore. Ross Melville says he did not attend the meeting as he was in the UK and has provided evidence that he booked and paid for a hotel in Norfolk on both 12 and 13 December 2011. This is a matter I will need to determine.31.Richard Burke ceased working for Oran on 30 December 2011 and began working full time for Oranmore, in the circumstances described in the next section below. Ross Melville continued as a director and shareholder of both Oran and Oranmore.32.In March 2012, Oranmore began trading in the UK under the sign ORANMORE PRECAST and the First Defendant’s Device. Oranmore says that it obtained an oral licence of the copyright in the First Defendant’s Device from Ross Melville’s father, Michael Melville, in ‘early 2012’. However that was reduced to writing by Michael Melville in the Copyright Licence, an undated document which Oranmore states was signed in ‘mid 2012’. In its entirety that states “I, Michael Melville, of [home address] hereby give consent to ORANMORE PRECAST LIMITED to use the logo created by me in 1980 in my personal capacity. The logo is as indicated below; [logo]. Signed, Michael Melville.”33.On 11 June 2012 John Dooley sent an email to Ross Melville, Richard Burke, Alan Melville and Derek Duffy signed by him as “John Dooley, Oranmore Precast Ltd” giving Oranmore’s business address, phone numbers and web address and attaching the Defendant’s OP logo. It does not appear to be disputed that this was a spoof or sarcastic email referring to his discovery that Sean Sharkey, a previous employee of Oran who had resigned in May 2012 telling John Dooley that he was going to be business developer for his brother’s poker business, was now working with Oranmore. 34.35.On 29 June 2012 John Dooley sent Ross Melville a text message saying “Hi Ross, would you be available to meet with me on Monday to discuss Oran and Oranmore relationship going forward? I would like to discuss it with you as a director of both companies and me as a director of Oran and see where it goes from there. I would prefer to keep Richard out of it at this point if you don’t mind.”36.Oranmore relies on, inter alia, these three communications as evidence that Oran knew that Oranmore was trading under the ORANMORE Signs and First Defendant’s Device at the latest by June 2012. Oran disputes that, but accepts that it knew that Oranmore was so trading by September 2012 at the latest. 37.Oran accepts that neither by the time of the Compromise Agreement nor at any time before the letter before action relating to the present claims of February 2014, had it produced any explicit written expression of opposition to the use by Oranmore of its company name, the ORANMORE Signs or the First Defendant’s Device. Richard Burke’s claims against Oran 38.Richard Burke’s position is that he had from 2002 - 2007 been drawing only part of his salary, and deferring the rest, under an arrangement agreed with Michael Melville. It is not now disputed that on 17 December 2007 Michael Melville, as a director of Oran, signed a document stating that “as at the 31st December 2007, Richard Burke, General Manager of Oran Pre-Cast Ltd is owed €400,000 (fore [sic] hundred Thousand Euro) Gross in outstanding back pay”. On 11 December 2009 Michael Melville and Donall Dooley, as directors of Oran, signed a document stating that “as at the 31st December 2009, Richard Burke, General Manager of Oran Pre-Cast Ltd is owed €600,000 (Six Hundred Thousand Euro) Gross in outstanding back pay”.39.On 24 May 2011 Richard Burke’s solicitors wrote to Oran asking for payment of the €600,000 (the “Back Pay Claim”).40.On 22 November 2011 Richard Burke had a meeting with John and Donall Dooley and told them (i) that he intended to leave Oran to work on a new project in the UK and (ii) that he was owed €600,000 of unpaid salary as per the Back Pay Claim. 41.It is Richard Burke’s case that he was given a letter on 20 December 2011 stating that he was to be made compulsorily redundant, which had been backdated to 18 November 2011. Oran relies on the letter as dated. In my judgment, nothing turns on this as both parties accept that he was made redundant and his last day of employment by Oran was 30 December 2011.42.On 6 January 2012, Richard Burke’s solicitors sent a letter before action relating to the Back Pay Claim to Oran. It demanded payment of the full €600,000 within 14 days. Oran did not respond. Oran’s case is that the letter was intercepted internally and not put before the Directors.43.On 9 March 2012, Richard Burke’s solicitors notified Oran by letter that a summons been issued against it in the High Court of Ireland in the sum of €600,000. Oran did not respond. Again, Oran’s case is that the letter was intercepted internally and not put before the Directors for some weeks.44.The Oran directors must have become aware of those letters, because on 25 April 2012, Oran and Richard Burke executed two agreements relating to the cessation of Richard Burke’s employment by Oran: (i) a document signed by two directors of Oran settling his redundancy package by agreeing to pay him €9,615 holiday pay and €47,000 redundancy pay (the latter to be satisfied by payment of €16,692 in cash and the transfer of a Jeep motor car) (“2012 Redundancy Agreement”); and (ii) a document signed as a deed by an Oran director and also signed by Richard Burke, compromising his €600,000 Back Pay Claim by agreeing to pay him the sum of €125,000 net of taxes, in monthly instalments of €10,000, beginning on the date of signature (“2012 Back Pay Agreement”). Clause 3d of the latter agreement provided that in the event of Oran “failing, refusing and neglecting to any one of the instalments due and payable herein then in that event the total amount of the sums claimed in the aforesaid high Court proceedings shall become due and payable by the Company to the said Mr Burke.”. Clause 3e provided that on receipt of the final instalment Richard Burke “acknowledges and accepts that he has no claim against the Company whether it be under statute or common law.”45.Oran failed to make any instalment payments under the 2012 Back Pay Agreement and failed to make the cash payment element of the 2012 Redundancy Agreement, although the car was transferred. Accordingly, Richard Burke filed a claim for redundancy pay with the Irish Employment Appeals Tribunal on 22 November 2012 (“Redundancy Claim”). Oran disputed this claim, stating that all payments had been made, which it now accepts was not the case. Richard Burke also issued further proceedings at the High Court in Ireland for the Back Pay Claim in the full amount of €600,000, as he was entitled to do pursuant to clause 3d of the 2012 Back Pay Agreement. 46.On 5 February 2013 the High Court of Ireland granted summary judgment against Oran in the sum of €600,000 (the “Back Pay Judgment”). That was notified to Oran by a letter from Mr Burke’s solicitors of 26 February 2013 which demanded payment within 14 days. Oran made no payment.47.Richard Burke lodged an application in the Sheriff’s Office for immediate execution of the Back Pay Judgment. The Sheriff notified Oran on 17 April 2013 that it had 4 days from receipt of the notice to pay €600,000 plus enforcement costs, failing which the Sheriff would seek to levy that amount against it by seizure and sale of goods or otherwise. The Compromise Agreement 48.Oran and Richard Burke entered into negotiations. Richard Burke was represented by his solicitors. Oran was not, although it had taken some legal advice upon receipt of the Sheriff’s notice. John Dooley acknowledged in paragraph 15 of his first Witness Statement, and in oral evidence, that Richard Burke had informed Oran that he was not willing to waive his rights under the Back Pay Judgment unless he obtained a separate release of Oran’s claims against him. Oran agreed to provide such a release.49.Accordingly, on 17 May 2013 Oran and Richard Burke entered into the Compromise Agreement, comprising three documents:i)A letter from Richard Burke to Oran (the “Burke Release”) stating: “In consideration of the payment of the sum of €26,092, which payment I acknowledge in full and final settlement of all sums due and owing to me by Oran Pre-Cast Ltd whether arising by contract, common law and/or statute. Further and [sic] consideration of the aforesaid payment I confirm I will instruct my Solicitors Steen O’Reilly 31/34 Trimgate Street, Navan to discontinue enforcement proceedings against your company arising from the High Court Judgement in the case: Richard Burke v Oran Pre-Cast Limited Record Number 2012/636S. I further confirm I have instructed by [sic] solicitors to withdraw such claims and actions that have been filed before the Employment Appeals Tribunal.” ii)A letter from Oran to Richard Burke (the “Oran Release”) stating: “In consideration of you compromising the amount due and owing to you on foot of High Court Judgement in the case: Richard Burke v Oran Pre-Cast Ltd Record Number: 2012/636S I confirm, on behalf of and under the authority of Oran Pre-Cast Ltd that Oran Pre-Cast Limited have no claim against you, Richard Burke, whether it be in contract, common law and/or statute.” iii) A document headed ‘Discharge Form’ signed by Richard Burke (the “Discharge Form”) stating: “I Richard Burke… hereby accept from Oran Pre-Cast Ltd… the net sum of €26,092 comprising notice, statutory redundancy, outstanding annual leave, ex-gratia payment and any monies owed by or to the company for termination of employment in full and final settlement of all statute and common law claims of every nature, type and kind whatsoever arising from my said former employment with the Company and the termination thereof by reason of my redundancy. I hereby acknowledge and agree that this payment of €26,092 constitutes a full and final settlement of all claims (if any) which I may have against the Company, its parent, subsidiaries and associated companies and/or each and all of their respective officers, directors, employees and agents, whether such claims arise under contract, at common law, in tort, in equity and/or pursuant to statute (including but not limited to the Redundancy Payments Acts 1967 to 2001, the Minimum Notice and Terms of Employments Acts, 1973 to 2001, Protection of Employment Act, 1977 (as amended) Organisation of Working Time Act 1997, Payment of Wages Act 1991, Parental leave Act 1988, Maternity Protection Act 1994, Unfair Dismissals Acts 1977 to 2001, Employment Equality Act 1988 and National Minimum Wage Act 2000).” 50.Richard Burke’s evidence was that he signed the Compromise Agreement “on the basis that I was finished working with [Oran] and, free of any claims against me, I would now be able to get on with my life working for [Oranmore]”. He said “I was only willing to compromise my claims worth over €600,000 on the basis that [Oran] had no further claims against me. I wanted to move on with my life.”51.John Dooley’s evidence is that Richard Burke wanted the separate release from Oran “to prevent us from pursuing him”, “to make sure we could not come after him for anything he had taken after the company once he had left” and “so we would not pursue him in case anything came out after he left”. At paragraph 15 of his witness statement, John Dooley stated that Oran could have pursued Richard Burke for sums of money arising from “a lot of malpractices on his part”, and this was the reason why Richard Burke sought the Oran Release. He refers to conversations between Richard Burke and Donall Dooley at the end of 2011 to support his allegations. This is hearsay evidence. The court has not heard from Donall Dooley. Richard Burke strongly denies any such malpractices. There is no documentary evidence put before the court to corroborate these allegations and for the purposes of these proceedings, in my judgment, they are unfounded. For those reasons, I give John Dooley’s evidence on this point no weight. 52.The effect of the Compromise Agreement was that Richard Burke compromised his rights under the Redundancy Claim and the Back Pay Judgment for a total payment of €26,092. This is the same cash sum for which he had previously compromised his rights under the Redundancy Claim (but not the Back Pay Claim) in the 2012 Redundancy Agreement and effectively amounts to a waiver of the €600,000 awarded to him under the Back Pay Judgment.53.Oran provided Richard Burke with a cheque for €26,092 (plus another in payment of his agreed solicitor’s costs) upon signature of the Compromise Agreement. Oran’s Financial Position at the time of the Compromise Agreement 54.It is common ground that Oran was not in a financial position to easily meet the €600,000 Back Pay Judgment at the time of the Compromise Agreement. Oran’s witness Derek Duffy stated in his witness statement that in 2012: “The dispute with Richard over his redundancy from [Oran] and the claim that he was asserting against [Oran] for €600,000 he claimed was owed to him, which is referred to in paragraphs 11 and 12 of John’s witness statement with which I agree, threatened the solvency of [Oran]. [Oran] was therefore paralysed from taking any action in respect of the First Defendant’s name throughout 2012 because if it did so, Richard could have pursued the winding up of [Oran] on the basis of his claim for €600,000”. He confirmed in cross-examination that Oran’s ‘primary concern’ throughout 2012 and into 2013 was its solvency. 55.John Dooley stated in his 1st Witness statement that at the time of the negotiations and signature of the Compromise Agreement: “I was also aware of the risk to the company of having a judgment registered against it and so was focused on getting a settlement to draw a line under the court action in Ireland. The company would be in a dire position when trying to obtain credit if we had a judgment against it and so I wanted to settle this.”56.Richard Burke, too, was aware of the potential implications to Oran of him enforcing his judgment, stating in paragraph 83 of his witness statement that he settled his claims for “a significantly reduced sum as [Oran] told me that they did not have sufficient funds and if I were to proceed for the full amount that it would result in redundancies within the company.”57.None of this evidence was challenged in cross-examination. Findings of fact on disputed issues Did Oran make a specific decision to discontinue selling Hollowcore into the UK market in April 2011? 58.John Dooley’s evidence was that the move away from Hollowcore into the UK was only ever temporary, and arose because in 2011 there were problems with transport out of Ireland connected with the peat crisis. Accordingly profit margins on Hollowcore were reduced as Hollowcore was a lower-margin, bulky, heavy and difficult to transport product. He said (i) there was no point in exporting Hollowcore at that time if there were no profits to be made; (ii) profits could be made later when the industry became busier and the transport crisis eased, as has in fact happened; (iii) there would be no point in ceasing completely when it maintained the facility to manufacture it; (iv) Oran did not at any time stop pricing Hollowcore jobs if asked and continued to fulfil orders if they could profit from them. His evidence was supported by Derek Duffy who was clear that no decision was made to cease the Hollowcore trade in the UK.59.Ross Melville’s evidence was that Oran decided to discontinue exporting Hollowcore to the UK save for the fulfilment of existing orders and the honouring of quotes already given. He points to monthly executive summaries preceding management produced by the finance director, Martin Hehir at the end of 2012 which show a reduction in turnover and refers to a “move away from Hollowcore sales in the UK”. His evidence was fundamentally undermined, in my judgment, by Oran’s financial information which shows that income attributable to UK Hollowcore sales continued through 2012, 2013 and 2014 and by Sean Sharkey’s witness evidence which is that when he was working in sales at Oran in 2011 he continued to price UK Hollowcore jobs if customers asked for a price. I prefer the evidence of Oran’s witnesses and find that no such decision was made in April 2011 or at all. Did John Dooley know that Oranmore was going to trade under that name when he sent the 7.12.11 email? 60.John Dooley says that when he spoke to Ross Melville and Richard Burke and told them that he knew they had set up a company a fortnight or so previously, Ross Melville told him that the company “could be called anything – it is a work in progress”, so he was left with the impression that the trading name had not been finalised. His evidence is that he didn’t know that Oranmore was trading under that name until September 2012. Ross Melville denies saying this, but neither he nor Richard Burke make a positive statement that they did tell John Dooley that it would trade under that name. Mr Harbottle submits that John Dooley should have known that it was likely to trade under the name of Oranmore because companies usually do trade under their own name. I am not convinced by that argument – equally companies very often trade under a different name. 61.I prefer the evidence of John Dooley for the following reasons. First, his evidence was unshaken in cross-examination and I found him to be credible on this point. Second, in my judgment, the email of John Dooley of 11 June 2012, in which he adopted the Oranmore Precast signature and logo, suggests to me that this was the time that the penny dropped and he realised that Oranmore was trading under that name. I can perceive in that sarcastic email an undertone of fresh outrage and disbelief. I do not believe that he would have sent that email, and the later 22 June 2012 email and 29 June 2012 text message, if he had known since early December 2011 that Oranmore intended to trade under the ORANMORE Signs. For those reasons, I am satisfied on the balance of probabilities that he (and therefore Oran) only knew that Oranmore was trading under its own name around early June 2012. That means I reject John Dooley’s evidence that he didn’t find out until September 2012. In my judgment, that latter contention cannot survive consideration of those three June 2012 communications from John Dooley. Did Alan Melville ask Ross Melville to change the company name of Oranmore on 13 December 2011? 62.I have no direct evidence from Alan Melville on this point. John Dooley says that he was at the board meeting on 13 December 2011 and was present when Alan Melville had this conversation with Ross Melville. Ross Melville says that this was a fiction and he wasn’t at the board meeting because he was in the UK that day, attending meetings in Norfolk. During the overnight adjournment after the first day of trial, he produced some documentary evidence, which I allowed him to rely on, showing that he had a booking at a hotel in Norfolk, near the Weeting facility, on the nights of the 12 and 13 December 2011 only, and a copy of a credit card statement showing that he had paid for those two nights at the hotel. Mr Harbottle suggested to him that he could have flown back to Ireland to attend the meeting. Ross Melville denied it. 63.This is a direct dispute of fact between two witnesses. I prefer the evidence of Ross Melville for several reasons. First, the documentary evidence is clear that he booked and paid for hotels in Norfolk for two nights only on 12 and 13 December. Second, a return to Oranmore in Galway from Norfolk, attendance at the board meeting and a return back to Norfolk would have taken most of the day. It seems to me to be inherently unlikely that he would have booked a two night stay in the UK if he had known that he was going to spend the day in between travelling to and from Ireland. He would have been more likely to delay the trip or bring it forward by a day or two. Finally, I found John Dooley a less convincing witness than Ross Melville on this point. I find that no such request was made of Ross Melville.Did the Defendants know, or should they reasonably have known, by the time of the Compromise Agreement that the Oran directors were unhappy about the use of the Oranmore Signs and/or the First Defendant’s Device? 64.It is accepted by Oran that no explicit written objection to the name of Oranmore as a company or the use of the ORANMORE Signs or First Defendant’s Device was ever made by Oran to the Defendants. Derek Duffy said that there was no point in objecting to the trading name from 2012 onwards because Oran was not in a financial position to take legal action against Oranmore, particularly in light of the back pay owed to Richard Burke. 65.However I am satisfied that during 2012 and through 2013 relations between the Oran-only directors and employees and the Oranmore directors was strained, as recognised by all of the witnesses. In particular, I am satisfied on the evidence before me that a large part of the reason for the strained relations was because of the Oran-only directors’ underlying discontent with the company name of Oranmore and its use of the ORANMORE Signs and the First Defendant’s Device on the one hand, and the Oranmore directors’ awareness of that. 66.In reaching this finding I am rejecting the evidence of Richard Burke and Ross Melville that they had no idea there was any issue about Oranmore’s use of the ORANMORE Signs and the First Defendant’s Device until they received Oran’s letter before action in early 2014, for the following reasons. First, I found their evidence unconvincing in its delivery. In particular, Ross Melville appeared very uncomfortable when giving his evidence in cross-examination that he couldn’t understand how Oran could possibly object to Oranmore, because the names were completely different. Secondly, their case on this point in incompatible, in my judgment, with (a) the acknowledgement in Richard Burke’s second witness statement he was aware there might be “trade mark issues”, which is why he sought the Oran Release; and (b) Oranmore’s request of Michael Melville in mid-2012 to produce a written Copyright Licence for the First Defendant’s Device, rather than rely on the oral one which it says it already had. Ross Melville was asked about this point in cross-examination and found it very difficult to answer, resorting to saying that the Copyright Licence request was a “belt and braces” approach. Thirdly, the sarcastic emails of John Dooley relating to Sean Sharkey’s employment by Oranmore and his refusal to consider Richard Burke’s proposal that the companies work together can, in my view, only be read in this way, although they fall short of explicit objections. The Law Contractual construction 67.It is common ground that the court should treat English law and Irish law of contractual construction as the same, and apply English law when construing the Compromise Agreement. 68.Both parties accept that the approach of the court should be that described by Lord Clarke of Stone-cum-Ebony JSC, with whom the other members of the court agreed, in