The Gazette 1975

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

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.