Case No. IP-2014-000051

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.