Sunday 4 December 2016

Irish firm claims it was the victim of 'serious misconduct'

Tim Healy

Published 05/04/2016 | 02:30

The matter is before Mr Justice Brian McGovern in the Commercial Court. Photo: Ronan Quinlan / Collins
The matter is before Mr Justice Brian McGovern in the Commercial Court. Photo: Ronan Quinlan / Collins

SERIOUS misconduct by a UK supplier of nutritional supplement products has been uncovered by an Irish rival which is being sued for alleged trade mark infringement, the Commercial Court heard yesterday.

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London-based Aymes International's principal Richard Wertheim Aymes instructed one of his senior employees to impersonate a UK National Health Service (NHS) representative to obtain information over the phone from Limerick-based rival Nualtra Ltd and which was later used in an attempt to undermine Nualtra's business, it is claimed.

As a result of the information Aymes obtained, a number of NHS employees were sent a forged email letter in November 2014 purporting to be on behalf of the NHS, Nualtra says.

The letter, described by Nualtra's counsel Bernard Dunleavy as a "poison pen letter", made serious allegations about Nualtra which the Irish firm says were unfounded.

Nualtra obtained a court order in the UK in which it discovered the forged letter was sent by the senior Aymes director who had been instructed by Mr Aymes to make the original phone call in which that employee posed as a person called "Chris Baker" in order to obtain the information. It later transpired there was no such person in the relevant NHS division, Nualtra says.

A second anonymous letter, also authored by Aymes, was sent to 848 GP practices in July 2015 again making what Nualtra says were damaging and unfounded allegations.

Arising from this second letter, Nualtra sued Aymes International and Richard Wertheim Aymes for defamation and the case was settled in the English High Court last November with an apology from the defendants, along with damages.

In the meantime, a case brought by a Dutch nutritional supplement product supplier, Nutrimedical, against Nualtra, for alleged infringement of the "Nutriplen" trade mark, had come before the Commercial Court.

Aymes International was later joined as a co-plaintiff with Nutrimedical.

Nualtra fully denied any trade mark infringement.

It counter-claimed, saying Aymes had been involved in concerted efforts to undermine its business since Nualtra's refusal to licence its products bearing the "Nutriplen" name to Aymes.

When the matter was mentioned before Mr Justice Brian McGovern yesterday, Paul Coughlan BL said issues relating to discovery have now changed and the Nualtra side were also seeking what is known as a "wasted costs order" requiring Aymes to pay Nualtra's legal costs so far.

Bernard Dunleavy SC, for Nualtra, said while the solicitors for Aymes could have no blame attached to them for their client's instructions, what had happened in this case had to be regarded as being "on the outer spectrum of serious misconduct".

The application for a wasted costs order would have to be considered in the context of the gravity of this misconduct and his side believed it would take half a day to hear, he said.

Mr Justice McGovern adjourned the matter.

Irish Independent

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