Case No. IP-2018-000182

28.IFL relied on the vagueness or uncertainty of the Agreement to argue that it lacked contractual force: see Chitty on Contracts, 33rd edition, at 2-148. IFL said that no definite meaning can be given to the Agreement without adding further terms. IFL relied on the following: (a)There is no reference to order volumes or minimum order volumes; (b)The Agreement requires that the supplier agreement be based on the product quality assurance meeting an agreed specification, but this is not set out; (c)The Agreement requires that there be agreed delivery schedules – in circumstances where the Pouch had not at that time been developed; (d)There are no details of how the charge on the assignment was to operate; (e)The Agreement is silent on what is to happen when new tooling is produced; and (f)There are no obligations on IFL or DFL to produce any Pouches (which Mr Popplewell described as “remarkable”). 29.Volumatic submitted that “all the essentials are there”: (a)Stage 1 is “quite detailed”, and was, in any event, performed without issue over the next few years; (b)Stage 2 is clear as to the obligation to assign, the terms of the royalty period, the rate of the royalty and the obligations to provide security; (c)Stage 3 is clear as to the term, the unit price, payment terms and the ownership of tooling. The only thing left to be agreed are quality assurance specifications and delivery schedules. In any event, Volumatic submitted that the parties had no problems following the requirements of Stage 3 for the next 10 years. 30.Further, Volumatic said that none of the matters listed by IFL is so fundamental to the contract that it affects the ability of the parties to perform it. 31.Had I found for Volumatic on the issue of intention to create legal relations, I would have rejected IFL’s submissions in relation to lack of certainty. I would have done so with some hesitation: the Agreement (as I have found it) is a set of minutes – it is therefore no surprise that, if given contractual force, its terms would be difficult to construe (because that was not the intention behind them). However, in my judgment, had there been the requisite intention to create legal relations, the terms of the Agreement would be capable of being given meaning. As set out above, I accept that the Agreement is not incomplete merely because it provides for further agreement between the parties. The Agreement is, in my judgment, sufficiently certain to be legally binding. 32.I therefore do not need to decide if it is open to Volumatic on the pleadings to argue that the parties’ performance justifies the implication of terms to give efficacy to the Agreement (relying on F.&.G. Sykes (Wessex) Ltd v Fine Fare Ltd [1967] 1 Lloyd’s Rep 53). 33.I would have reached the same conclusion on this issue had I found that the Agreement was only binding in relation to Stage 1.