Case No. IP-2014-000051

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.