Pouch
) to fit Volumatic’s cash counting machines. Although I have adopted the parties’ nomenclature for that document as “the Agreement”, what in fact was agreed by and in that document is the subject matter of these proceedings. The Agreement included a requirement that “all property rights” in the Pouch be assigned to Volumatic. By these proceedings, Volumatic alleges that the Agreement was binding on the parties, and seeks specific performance of that term. 2.It is common ground that the expression “all property rights” includes a number of patents, hence Volumatic’s action can be said to have been properly brought in the Intellectual Property Enterprise Court, even though no issues of intellectual property law fall to be decided. 3.At trial, Mr Gareth Tilley appeared for Volumatic, and Mr Simon Popplewell appeared for IFL. I am grateful to counsel and those instructing them for the clarity of their written submissions and the efficiency with which they dealt with a large number of legal arguments in the course of their oral submissions.
- 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