Case No. IP-2016-000182

68.I begin with the definition of ‘mutual’ in MML’s pleaded case. Mr Malynicz complained that Forces Mutual had prepared its evidence on the case pleaded by MML and was then obliged to deal with something different at trial. Aside from that, it was an important part of MML’s argument that ‘mutual’ unambiguously meant a stated type of organisation. An argument of this sort is more convincing if the type in question is clearly defined in the pleadings and the definition remains consistent through to the end of the trial.69.Paragraph 16 of the Re-Amended Particulars of Claim stated:“16. In the premises of the foregoing, consumers recognised the term ‘Mutual’ as designating an organisation with the characteristics identified in paragraph 10-15 above and that the benefits of being a member of the mutual company will be available in relation to products and services owned by that company.”70.The problem was that paragraphs 10 to 15 offered various definitions of ‘mutual’ without these being pulled together in paragraph 16 or anywhere else to provide a single definition on which MML pinned its case, including all characteristics said to be essential and, just as importantly, excluding all those said to be inessential.71.The Re-Amended Particulars of Claim quoted from two independent sources, in paragraphs 11 and 13:“11. The Oxford English Dictionary contains the following definition of ‘mutual’: ‘Designating or relating to a financial institution (as a building society, insurance company, etc) without capital stock, that is owned by its members who subscribe to a common fund from which claims, loans etc., are paid, profits after deductions being shared between them. Freq. in mutual company, mutual society.’ …13. The Department for Business Innovation & Skills’ Guide to Mutual Ownership states:‘The distinguishing characteristic of a mutual is that the organisation is owned by, and run for the benefit of its members, who are actively and directly involved in the business – whether its employees, suppliers, or the community or consumers it serves, rather than being owned and controlled by outside investors.’ ”72.The OED definition required payment of claims from a common fund, not payment by the third party insurers which for the most part is MML’s model. According to the Department for Business Innovation & Skills, the characteristics of a mutual embrace the possibility that the members of a mutual need not be its customers; they may be its employers or suppliers or the community in general served by the mutual. This raised a particular point: was MML defining ‘mutual’ widely to include those in which the members could be employees, suppliers or other stakeholders, or more narrowly than that?73.Another possibility was that MML was relying on a perception of ‘mutual’ solely in the context of financial institutions. The OED definition quoted in the Re-Amended Particulars of Claim supported such an argument. However, it was not made explicit that ‘mutual’ means one thing in a broad context but has a narrower meaning in the context of financial institutions.74.In his opening speech at the trial Mr Silverleaf was candid about the meaning given to ‘mutual’:“There is no doubt – I’m not going to shy away from this – the term ‘mutual’ has what my learned friend describes as an amorphous and malleable technical meaning, and it’s become particularly malleable since the passing of [the Cooperative and Community Benefit Societies Act 2014].”75.Mr Silverleaf also at this stage provided definitions of ‘mutual’ on which MML based its case, but it is fair to say that the case was still not quite fixed. The evidence followed.76.In MML’s closing written submissions the definition of mutual and MML’s final position was this (leaving out the references to supporting evidence):“The term ‘mutual’ defines and describes a business which is owned and controlled by its members working for their mutual benefit. It does not have external shareholders but it may have customers who are not members. This form of mutual is universal in financial mutuals with which this case is concerned.”