Case No. IP-2018-000182

4.Following the Case Management Conference, HHJ Hacon approved the following list of issues: “1. Whether the Agreement (alternatively stages 2 and 3 of the Agreement) has contractual force and particularly: (a) whether there was an intention to create legal relations; (b) whether the terms are sufficiently certain. 2.Whether Volumatic is estopped by convention from asserting that the Agreement (alternatively stages 2 and 3 of the Agreement) is binding. 3.Whether the Agreement has been varied. 4.Whether on its proper construction the conditions precedent for the assignment of rights under the Agreement have been satisfied (including whether IFL is estopped from asserting otherwise). 5.Whether, if the conditions precedent were satisfied, Volumatic did so within a reasonable time. 6.Whether Volumatic has come to the court with clean hands by reason of: a.it allegedly conducting its relationship with IFL as if the Agreement were not binding upon it; b.alleged pre-contractual misrepresentations; and/or c.its own 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). 7.Whether it would be inequitable to order specific performance. 8.Whether IFL has a defence of laches. 9.Whether the claim is statute barred. 10.Whether the court should 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 (as defined in the statements of case) at the request of Volumatic; c.Volumatic has allegedly not complied with its own obligations under the Agreement; and/or d.delay. 11.Whether IFL holds the intellectual property rights in the pouch on trust for Volumatic. 12.Whether the court should order specific performance of the Agreement. 13.Whether the court should order damages in lieu of specific performance. 14.The quantum of loss and damage suffered by Volumatic. 15.Whether IFL should be ordered to grant Volumatic exclusive rights to use any know-how in respect of the Pouch.” 5.Issue 14 was the only issue not to be determined at the trial. 6.In my discussion of the issues below, I have reformulated some of them, and discussed them in a slightly different order, but with the aim of not affecting the substance of the issues for determination. The parties acknowledged that there was significant overlap between the issues, and indeed, in their submissions, the parties often rolled issues in together.