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Fogarty. The new agency, R.M.B., would like to take
this opportunity to offer you a position as
at a salary of
. We must stress that the
choice to remain either with A.F. Associates or to
accept this offer is entirely your own decision and I
would welcome the opportunity to discuss any doubts
which may occur to you.
Yours sincerely,
Audrey Ralston."
Defendant's ultimatum to purchase refused
Having secured an understanding as to the mind of
the staff Miss Ralston on the same day 'phoned Mr.
Fogarty in Dublin and requested an interview with
him on the following morning. She vouchsafed to him
no advance warning of what was proposed. On the
next day she attended with the other two defendants.
I have no hesitation in accepting as substantially true
the version given by Mr. Fogarty and his witness Mr.
O'Boyle, a former managing director of the Ulster
Bank whom Mr. Fogarty called into the discussion as
an adviser.
In brief, Miss Ralston explained that the defendants
wished to be on their own and offered £20,000 for the
business payable on August 3. Mr. Fogarty was natur-
ally taken aback by this unexpected offer. He had never
had occasion to direct his mind to the value of the
accounts by the company had not been prepared. More-
over, he was by no means clear exactly what the defend-
ants were proposing to purchase: whether the entire
shareholding or his interest in the company or merely
the goodwill on the goodwill and the business premises
subject to the mortgage.
He was given a short time to be advised and at a
later meeting at lunch-time Mr. O'Boyle sought without
much enlightenment to discover how the figure offered
was arrived at and what it was for except that it was
for the business. His observation that the defendants
seemed unaware of the normal conventions of a take-
over was confirmed when at 1.40 p.m. the defendants
said that the offer had to be accepted by 2.00 p.m.
or they would resign on the spot.
Though Mr. O'Boyle asked how many years
purchase of the net profits was intended to be re-
flected in the offer this was obviously a question
beyond the comprehension or the capacity of the de-
fendants to answer. It now transpires that the offer of
£20,000 was made because it was the limit of the
finance they had Taised.
As Mr. Fogarty not unreasonably felt that a gun was
being put to his head, lacking any satisfactory ex-
planation as to why the matter could not be pursued
in a more reasonable and ordered way and having been
advised that the offer was inadequate, he refused the
offer and the defendants immediately resigned as em-
ployees of the company from that moment.
Plaintiff loses clients to defendants' new company
As the letter of July 31 to the staff indicates the
defendants had already, notionally at least, formed their
partnership and were resolved one way or the other to
terminate their connections with the company and with
Mr. Fogarty on August 1. They had also secured the
services of the entire staff as appears from the fact that
when Mr. Fogarty rushed to Belfast on the afternoon
of August 1 all work had stopped in the office and the
entire staff walked out and started the next day with
the defendants in their new enterprise.
Mr. Fogarty immediately set about phoning the
clients of the company to discover what part of the
business could be salvaged. The response was an almost
unanimous indication that they were transferring their
business to R.M.B.
I have no doubt that before August I the defendants
had ensured that if they took the leap they would carry
with them the bulk if not all of their former connections.
On August 2, Stewart's Supermarkets, the biggest client
of the company, wrote terminating its association with
the company and printed literature distributed at a
press reception held by R.M.B. on August 6 reported
that the other largest clients had already, by the time
of printing, gone over to them. By the end of the first
week of August the entire business of the company had
disappeared except for two small accounts. In every
case the business had been transferred directly to
R.M.B.
The efficient operation of an advertising business
depends upon the keeping of certain records relating
to the jobs in hand. One important record is a traffic
sheet which sets out in respect of each job the dates
when the various stages of the work are required to be
performed. Other essential documents are media
sheets or schedules which set out the pre-planning of
advertising campaigns as regards the media to be used.
After Mr. Fogarty's arrival in Belfast on August 1 he
searched through all the company's files and records at
its office. He found them in a state of considerable dis-
order and a number, including media sheets and the
traffic sheet, were missing.
The defendants deny that they took them or were
responsible for their abstraction, but a photostat of the
traffic sheet of the company has been produced by the
defendants as having been in their possession. I am
satisfied that the original was taken deliberately by or
with the authority of the defendants in order to enable
them to service the existing contracts of the company
for all the clients whom they had taken over and that
without this appropriation the work could not have been
done as readily or as efficiently.
Documents of plaintiff's company taken and misused
I have also no doubt that other documents, including
media sheets, which were considered as likely to help
the defendants in dealing with former clients of the
company or generally in their business were taken and
used by them or their prospective staff for their advan-
tage. A striking example of the misuse of the company's
documents occurs in the case of a document of the
company entitled "Recruitment Advertising Presenta-
tion by A.F. Associates, Ltd." This was a form of pros-
pectus or plug by the company of its virtues and cap-
abilities and was used presumably to induce prospec-
tive clients to avail themselves of the unparalleled
facilities provided by the company. The defendants only
took a copy of this document but literally transcribed
it word for word with the substitution only of "R.M.B.
Advertising" for "A.F. Associates Ltd." and any neces-
sary or consequential changes.
Plaintiff claims damages for irretrieveable loss
In a word, the defendants took the entire staff of
the company, almost its entire business and whatever
documents of the company were considered to be of
value to them. During August the company recognised
that the loss was irretrievable and sold off the office
building, fittings and contents and came to an agree-
ment with another advertising company to take over
15