Issue 5 – If the conditions precedent were satisfied, did Volumatic satisfy them within a reasonable time?
59.IFL submitted that, if the Agreement was binding and Volumatic is not estopped from relying on it, it was an implied term that Volumatic would comply with its obligations under Stages 2 and 3 within a reasonable time. Volumatic did not dispute that such a clause should be implied into the Agreement, but the parties differed on what a reasonable time might be. IFL said 3 months from the completion of Stage 1; Volumatic said 10 years. 60.Given my findings on the issues above, this issue does not arise. But if I am wrong, IFL asked me to find that it is now too late for Volumatic to call for the assignment of the intellectual property in the Pouch on the basis that it has performed the three requirements of Stage 2, or is willing now to do so. Volumatic, on the other hand, said that I should take into account the ongoing negotiations over the past 10 years, the lack of urgency to regularising the ownership of the intellectual property, the uninterrupted supply of Pouches and the continuing commercial relationship between the parties. Whilst noting that 11 years is a long time, Volumatic’s behaviour, it said, was reasonable. 61.I can deal with this issue briefly. I have found that Volumatic has not complied with any of the three requirements set out in Stage 2. Could it do so now? Volumatic’s own evidence was clear – there was not in 2007 and there is not now a willingness on Volumatic’s part to provide DFL with a 10 year exclusive manufacturing agreement. Mr Amos’ evidence in the witness box was clear – Volumatic was not at any time since 2005 willing to enter into a 10 year exclusivity agreement, because it had been advised by its then legal advisors not to. Thus, some 10 years later, it does not matter whether 10 years would be a reasonable period or not: Volumatic remains unwilling to enter into a 10 year exclusivity agreement, despite the fact that it has now purchased Pouches only from DFL for 10 years. So whether a reasonable period was 3 months or 10 years does not matter – Volumatic’s case on this issue still fails.
- Mr David Stone (sitting as an Enterprise Judge):
- Volumatic
- Agreement
- Pouch
- List of Issues
- Witnesses
- Background
- Warwick Meeting
- Legal Principles
- Preliminary Point
- Issue 1(a) – Did the parties have an intention to create legal relations in relation to the Agreement (alternatively Stages 2 and 3 of the Agreement)?
- Issue 1(b) – Was the Agreement sufficiently certain for it to be legally binding?
- Issue 2 – Is Volumatic estopped by convention from asserting that the Agreement (alternatively stages 2 and 3 of the Agreement) is binding?
- Issue 3 – Was the Agreement varied?
- Issue 4 – On a proper construction of the Agreement, have the conditions for assignment been satisfied?
- Issue 5 – If the conditions precedent were satisfied, did Volumatic satisfy them within a reasonable time?
- Issue 6(a) – Has Volumatic come to court with clean hands by reason of it allegedly conducting its relationship with IFL as if the Agreement were not binding on it?
- Issue 6(b) – Has Volumatic come to court with unclean hands by reason of its alleged precontractual misrepresentations?
- Issue 6(c) – Has Volumatic has come to court with unclean hands by reason of its failure to comply with its own obligations under the Agreement (including whether IFL acquiesced to the same and/or whether IFL is estopped from asserting otherwise)
- Issue 8 – Does IFL have a defence of laches?
- Issue 10 – Should the court refuse specific performance on the discretionary grounds that: (a) IFL has allegedly conducted itself on the basis that Stages 2 and 3 of the Agreement were not binding; (b) IFL has improved the Pouch at the request of Volumatic; (c) Volumatic has allegedly not complied with its own obligations under the Agreement; and/or (d) delay
- Issue 7 – Would it be inequitable to order specific performance?
- Issue 12 – Should the court order specific performance of the Agreement?
- Issue 11 – Does IFL hold the intellectual property rights in the Pouch on trust for Volumatic?
- Issue 13 – Should the Court order damages in lieu of specific performance?
- Issue 9 – Is the claim for damages statute barred?
- Issue 15 – Should IFL be ordered to grant Volumatic exclusive rights to use any know-how in respect of the Pouch?
- Conclusions