The Irish Mail on Sunday is being sued at the Commercial Court over its alleged "brazen and outrageous" publication last month of a fake copy of the Sunday Tribune just days after a receiver was appointed to it.
John Gordon SC, for Jim Luby, the receiver appointed to Tribune Newspapers plc on February 1st last, 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 Mail had outlined no defence to it, counsel said.
Neil Steen, for Associated Newspapers (Ireland) Ltd, trading as the Irish Mail on Sunday, said the Sunday Tribune was "a dead man walking, if it was even walking" at the time of the disputed publication on February 6th.
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 6th, he argued.
Counsel submitted the proceedings were more appropriate for the Circuit Court and said the Mail would also be seeking to bring a preliminary motion for security of the legal costs of these proceedings against Tribune newspapers.
Mr Gordon said this incident of passing off was self-evidently extremely damaging to the Sunday Tribune and he would like to see what defence was being offered. He did not agree damages would come within the Circuit Court threshold of €40,000 and 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.
It was alleged this was a very deliberate act of passing off and it was not appropriate he would make any further comment, the judge said. He directed the motion for security for costs should be issued by tomorrow and listed the matter for March 21st.
In an affidavit, Mr Luby said the most valuable asset owned by Tribune Newspapers is the goodwill in the title "The Sunday Tribune".
After being appointed receiver on February 1st, he decided to offer the newspaper for sale and also decided it would not be published on February 6th as he was unable to obtain libel insurance cover. He was anxious staff be retained as long as possible as he took the view a potential investor would be more attracted if the employees remained in place.
However, he learned on February 6th editions of the Mail were published and offered for sale that day with a wraparoud 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 Mail.
That "alternative" newspaper included four discount vouchers offering readers the chance to buy the IMOS over the next four weeks at half price and was clearly intended to confuse or deceive people into buying the IMOS believing it to be the Sunday Tribune, Mr Luby said. This 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.
Mr Luby said the defendant on the same date issued a circular to newsagents asking them to display the alternative newspaper in the position normally reserved for the Sunday Tribune. The defendant's actions gave rise to widespread confusion and condemnation and had undermined his efforts to sell the business, Mr Luby added.
While the Mail agreed on February 8th to give an undertaking not to publish any newspaper in any way similar to the Sunday Tribune, it "somewhat incredibly" denied any passing off, he said.
