Case No. IP-2014-000051

Does the Compromise Agreement extend as to: (i) subject matter; (ii) jurisdiction; and (iii) future claims, so as to cover claims of the present type? 73.The Defendants’ position is that it relies on the Compromise Agreement, and specifically the Oran Release, as providing a complete answer to the claim. Mr Harbottle submits that the wording of the release granted by Oran in the Oran Release is unambiguous and wide-ranging, covering present and future claims of whatever nature. Accordingly it encompasses the present claims of trade mark infringement and passing off. 74.Mr Moody-Stuart makes a primary submission for Oran that the Compromise Agreement only covers claims: (i) relating to the employment of Richard Burke and his redundancy; and (ii) made under Irish law; and so not the present claims, because: i)there is no basis in the Compromise Agreement for suggesting that the claims being settled or discharged by Oran in the Oran Release were broader in scope than those being settled or discharged by Richard Burke in the Burke Release and the Discharge Form. The Discharge Form makes it clear that the subject matter of the Compromise Agreement was the compromise of any and all claims arising in respect of Richard Burke’s employment and its termination, and it is ‘nonsensical’ to suggest that it extends beyond matters relating to Richard Burke’s employment to encompass the current claims.ii)similarly, the Discharge Form makes it clear that the Compromise Agreement extends only to matters arising under the law of Ireland and so cannot encompass the present infringement and passing off claims which relate to Oranmore’s trade in the UK.75.Mr Harbottle submits in response that if the parties had intended the release to be provided to Richard Burke by Oran to mirror that given to Oran by Richard Burke then: (a) there would be no need for a separate Oran Release as the Burke Release and the Discharge Form would have been sufficient to cover all claims relating to Richard Burke’s employment and redundancy; or (b) the wording of the Oran Release would have mirrored that of the Discharge Form. He submits that none of the documents making up the Compromise Agreement restrict the claims for which waiver or discharge is being given to claims under Irish Law; nor is Irish Law referred to in any of them; there is no basis for inferring that the parties intended to limit the scope of the Compromise Agreement to Irish law claims.76.Mr Moody-Stuart’s secondary submission for Oran is an alternative one in the event that the court finds that the Compromise Agreement extends beyond matters concerning Richard Burke’s employment and termination. In that case, he submits that it only relates to causes of action that were in existence at the date of the Compromise Agreement and does not act to release liability for future tortious acts. He submits that it makes no commercial sense for Oran to have abandoned claims which had not yet arisen, including acts of passing off after 17 May 2013 and infringement of the not-at-that-time-existing Registered Mark, which accordingly must be outside the scope of the compromise. 77.In response, Mr Harbottle submits for the Defendants that such a submission defies commonsense: since it was known by Oran that Oranmore had been trading and continued to trade under the ORANMORE signs and the First Defendant’s Device, the parties cannot have intended to compromise any passing off claim in respects of acts up to and including 17 May 2013 but then left it open to Oran to sue in respect of acts commencing the next day. He reminds me that Oranmore in paragraph 10D of the Amended Defence seeks the implication of a term releasing Richard Burke from liability “in respect of the continued use of the expression “ORANMORE PRECAST” and/or the First Defendant’s [Device] after 17 May 2013”.