Case No. IP-2018-000182

64.It is conceded that, prior to entering into the Agreement, Mr Bonné on behalf of Volumatic indicated that Volumatic would be ordering a high volume of Pouches. One account is that Mr Bonné said “in the millions”. Another account is that Mr Bonné said “10 million pouches per year”. Mr Williams suggested that he understood Mr Bonné to mean that the figure would be achieved in a year. I do not need to decide exactly what was said by Mr Bonné because it does not matter - it is clear from the evidence before me that IFL/DFL did not rely on this statement, whichever version of it was made. It was not written down at the time (or even mentioned in any written correspondence), nor was it (or any other reference to quantity) included in the Agreement or in any of the other documents passed between the parties at the time. In my judgment, it was no more than the overly enthusiastic puff of an entrepreneur: IFL/DFL appreciated that and did not rely on it. 65.Had they relied on the statement, IFL/DFL would have been wrong to do so. IFL/DFL were supplying pouches to Volumatic in 2005 at the time the statement was made, and had been since 2001. In those years, sales had been slow, and orders were in the hundreds of thousands – considerably short of “millions” or “10 million”. IFL/DFL were aware of Volumatic’s customer base, and aware that IFL/DFL did not have customers with requirements anywhere near those levels. IFL/DFL knew that a significant number of new customers would be needed in order to achieve sales of those levels. Further, 10 years later, as the business has grown steadily, annual orders remain at a quarter of the 10 million figure. Further, Mr Williams told me candidly from the witness box that he would never have been able to make 10 million Pouches had they been ordered, and certainly would have been unable to ramp up production to be able to make 10 million Pouches within a year. 66.For these reasons, I have no hesitation in rejecting IFL’s argument.