Case No. IP-2018-000182

74.I have set out my conclusions above in relation to the allegations of unclean hands on the basis of Volumatic conducting itself as if the Agreement were not binding (sub-issue (a)) and Volumatic’s failure to comply with the terms of the Agreement (sub-issue (c)): my conclusions are the same in the exercise of my discretion. In relation to improvements to the pouch (sub-issue (b)), I would not have refused specific performance on this ground for the reasons I have given above. Therefore, had I otherwise decided to order specific performance, sub-issues (a) and (c) would have tipped the balance against doing so but subissue (b) would not. Delay (sub-issue (d)) also would have tipped the balance against ordering specific performance – if the 10 year delay were insufficient to establish laches, it would have weighed heavily in my exercise of the Court’s discretion, such that I would not have ordered specific performance. In P&O Nedlloyd the Court of Appeal noted that a party is not entitled to bring a claim for specific performance “unless he has shown himself ready, desirous, prompt and eager” (citing Milward v Earl Thanet (1801) 5 Ves 720n). Further, the Court of Appeal noted: “Specific performance is relief which this court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit.” Parties are expected to bring claims for specific performance promptly. That was not done in this case. In addition to refusing specific performance on the basis of laches, I would also have refused it in the exercise of my discretion.