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)
67.I have found that the parties did not intend the Agreement to be legally binding, and acted on that basis for more than 10 years. It is therefore not surprising that the terms of the Agreement were not complied with by the parties. IFL relies on the following failures: (a)Volumatic paid royalties to DFL, not to IFL; (b)No royalty agreement was ever entered into; (c)The £20,000 immediate payment was never made; (d)No charge was ever entered into; (e)No manufacturing agreement was ever entered into and Mr Amos’ evidence was that Volumatic remained unwilling to enter into one; and (f)Volumatic did not pay under the payment terms set out in the Agreement. 68.I accept these submissions, other than in relation to 67(a) above: as DFL and IFL behaved interchangeably, it does not matter to whom royalties were paid. I have found that Volumatic is not entitled to enforce the Agreement. Had I found that it was, then I would have denied specific performance on this ground. A party cannot ignore an agreement for more than 10 years and then seek specific performance of the clause that benefits it.
- 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