John Gordon, counsel for Jim Luby, the receiver appointed to Tribune Newspapers plc on February 1, said his side would be seeking damages, including “exemplary damages” over this “direct attack” on the goodwill of the Sunday Tribune.
This was probably the “most outrageous” example of a “passing off” matter to have come before the courts in recent years and the IMOS had outlined no defence to it, counsel said.
Neil Steen, for Associated Newspapers (Ireland) Ltd, trading as the IMOS, said the Sunday Tribune was “a dead man walking, if it was even walking” at the time of the disputed publication on February 6.
The goodwill of the Sunday Tribune was not worth the €40,000 cost of the libel insurance which would have been necessary to publish it on February 6, he argued.
Counsel said the IMOS would be seeking to bring a preliminary motion for security of the legal costs of these proceedings against Tribune newspapers.
Mr Gordon said this incident was self-evidently extremely damaging to the Sunday Tribune and he would like to see what defence was being offered. He would also be arguing his client should not have to provide security for costs.
Mr Justice Peter Kelly said he would transfer the proceedings to the Commercial Court as it was admissible within the rules relating to passing off cases. There is no longer a monetary threshold for a case of “passing off,” he noted.
The judge directed the motion for security for costs should be issued by tomorrow and listed the matter for March 21.
In an affidavit, Mr Luby said the most valuable asset owned by Tribune Newspapers plc is the goodwill in the title “Sunday Tribune”.
After being appointed receiver on February 1, he offered the newspaper for sale and also decided it would not be published on February 6 as he was unable to obtain libel insurance cover.
However, he learned on February 6 editions of the IMOS were published and offered for sale that day with a wraparound with the same title, colouring and layout as the Sunday Tribune so any member of the public would assume they were buying the Tribune when it was actually the IMOS.
That “alternative” newspaper was an attempt to misappropriate the goodwill and value of the Tribune’s business and an extremely cynical and outrageous attempt” to target its readers.
While IMOS on February 8 agreed to give an undertaking not to publish any newspaper in any way similar to the Sunday Tribune, it “somewhat incredibly“, denied any passing off, Mr Luby said.