Nualtra fails to force UK rival into court cross-examination

Nualtra, a health supplements company backed by investors including Leslie Buckley and Actavo chief executive Sean Corkery, has failed with a bid to force a British rival to come to Dublin to be cross-examined in a bitter trademark row.

Nualtra on Monday asked the High Court to order Roger Wertheim Aymes, founder of Aymes International, to make himself available for cross-examination by its lawyers over a discovery affidavit he swore.

Bernard Dunleavy SC, for Nualtra, alleged Mr Aymes, who has admitted sending “poison pen” letters about Nualtra, has been “serially dishonest” and it wants to question him about the veracity of his discovery affidavit.

Brian O’Moore, senior counsel for Aymes International, opposed the application by Nualtra, describing its bid to force a cross-examination of Mr Aymes as “incoherent... intolerant and intemperate”.

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Nualtra is the defendant in a trademark dispute taken by Aymes and another company Nutrimedical. It is alleged Aymes Nutriplete brand of oral supplements for malnourished patients could be confused with Nualtra’s Nutriplen brand.

The Irish company denies there is any infringement. The case is due for trial next month. The two sides have also been embroiled in several related legal tangles.

Earlier this year, Nualtra, which is advised in the case by LK Shields, told the High Court that its lawyers had discovered that a senior manager at Aymes International sent a fake email about Nualtra to NHS employees in the UK. The email purported to be a patient-safety alert, and told NHS staff not to buy Nualtra products. Aymes later admitted, via its Irish lawyers, that it was behind the fake email.

Company’s clients

Aymes International has also admitted that Mr Aymes was behind another damaging letter about Nualtra, which was sent anonymously to the Irish company’s clients last year.

A defamation case in the UK has been taken against Aymes by Nualtra.

Mr Aymes is not due to be called as a witness by Aymes International as part of the December trademark trial, which means he will not have to face Nualtra’s lawyers in court.

He did, however, swear a discovery affidavit, which redacted large portions of several documents, alleging they were either covered by legal privilege or were commercially sensitive.

Mr Dunleavy told Mr Justice Brian McGovern on Monday that Mr Aymes has been “serially dishonest” and has deceived the court in the past over the poison pen letters.

“The court has never gotten any assurance from him that he will be honest in the future...I have reason to believe he is dishonest...Why would he be telling the truth now?” said Mr Dunleavy, who asked the court to order a cross-examination so he could “test” Mr Aymes.

Application

Mr O’Moore objected to the application, arguing that Nualtra should instead have asked the court to check if the redacted documents were privileged or commercially sensitive. It said Nualtra had not presented “cogent evidence” to suggest Mr Aymes was lying this time, and simply wanted to get Mr Aymes in court to “dissect” him.

Mr Justice McGovern said Nualtra had not satisfied him that a forced cross-examination on the discovery affidavit was necessary, and said the Irish company could have taken another route, such as asking the court to rule on the documents.

He rejected the application.