Case No. IP-2019-000175

in this litigation.24. Accordingly, I am satisfied that Ms Muller is not bound by the Restrictive Covenants and so it is not necessary for me to go on to consider whether she has breached them. That disposes of issues 9 – 12 inclusive. Storage of works created at DPA 25.Although the claim alleges that Ms Muller failed properly to store, and/or removed, electronic files including 3D models and CGIs, Mr Padalino accepted in cross-examination that Ms Muller did not use computers at all for her architectural work. She carried out all of her design work by way of free-hand drawing and delivered all her drawings to a DPA staff member to scan into DPA’s server. Mr Padalino accepted that he had no complaints that Ms Muller failed to comply with DPAs storage protocol, which she complied with by providing her drawings to be stored in this way. He accepted that she did not carry out any 2D or 3D design work using AutoCAD, and that she did not carry out CGI work. 26.Mr D’Aguanno accepts that he was informed of DPA’s protocol for storage of work on DPA’s server when he started work, and says that he followed it at all times, including performing weekly backups of DPA’s computers to the archive server from September 2017. Mr D’Aguanno says that in order to carry out CGI work on his personal laptop, he needed a link to DPA’s server because the files he was using were so large and complex it would have been very difficult and time consuming to move them any other way. He says this link was installed by ‘Nick’, DPA’s IT consultant, and enabled him to save everything he created on his laptop directly to DPA’s server. 27.Mr Padalino appears to accept in his second witness statement at paragraph 14 that Mr D’Aguanno may have had a direct connection from his laptop to the server, but says if so, he (Mr Padalino) was not aware of it. 28.Mr Gill was asked if he knew how Mr D’Aguanno saved documents from his own laptop to the DPA server and he said, “I assume that he saved it to a memory stick and then put that in the server”. He accepted that was merely an assumption as he was not working at DPA when Mr D’Aguanno was there, having arrived only after Mr D’Aguanno had left. Mr Owusu probed him in cross-examination, asking him whether, in investigating whether Claimant Works were missing, he did not investigate how Mr D’Aguanno had saved documents? Mr Gill replied, “It came out as part of the investigation”, however I think his first two answers were the correct ones – that he merely assumed that Mr D’Aguanno was moving documents by use of memory sticks. 29.I will return to consideration of what work Mr D’Aguanno carried out on his laptop, but upon considering all of the evidence (including that which I set out later) I am satisfied on the balance of probabilities that, as Mr Padalino accepts was possible, Mr D’Aguanno did have a link installed between his personal laptop and the DPA server. Software used at DPA at the relevant time 30.At paragraph 10 of his first witness statement Mr Padalino sets out the software provided by DPA to its employees when Mr D’Aguanno was working there, as follows: i)“2D AutoCAD; ii)Microsoft 365 Office apps; iii) Some access to InDesign and Adobe Photoshop. iv) At that time, no other software was available through DPA hence [Mr D’Aguanno’s] use of his own laptop which had the CGI software on it” 31.Mr D’Aguanno accepts this list as accurate. His evidence was that DPA only had 2D AutoCAD on its computers, but he had a personal copy of 3D AutoCAD on his laptop, as well as another computer aided design (“CAD”) software package called Rhinoceros (“Rhino”). 32.In his second witness statement, Mr Padalino states that the 3D models produced by Mr D’Aguanno were not made using Rhino but were produced on DPA computers and software. This contradicts Mr Padalino’s own evidence, reproduced above, that DPA only had 2D AutoCAD. It also contradicts Mr D’Aguanno’s evidence that he only had access to 3D AutoCAD on his own laptop as it was not loaded onto DPA’s computers. Mr Padalino also states at paragraph 10 of his second witness statement that Mr D’Aguanno only worked on his own laptop to produce CGI models using the Rhino software, and he should have saved those CGIs onto DPA’s server. When Mr Owusu asked Mr Padalino about paragraph 10 in crossexamination, I noted him replying, “Mr D’Aguanno also did 2D and other types of drawing work on DPA computers. It was CGI using specialist software that he did on his laptop”. He then corrected himself, saying that Mr D’Aguanno did “any type of AutoCAD” work on the office computer, not just 2D as he had previously said. 33.Mr Padalino’s evidence was therefore rather confused, in my view, about whether or not DPA provided 3D AutoCAD or only 2D AutoCAD to staff, and whether or not Mr D’Aguanno did only 2D drawing work, or also 3D work, on DPA’s computers. Mr Owusu sought to clarify his evidence, asking him directly in cross-examination whether DPA had a 3D AutoCAD licence at the relevant time and Mr Padalino said that it did. He resiled from his evidence that DPA had 2D AutoCAD but not 3D AutoCAD, saying that his first witness statement was not correct. 34.Mr Gill confirmed that he used both AutoCAD 2D and 3D in the DPA office, and that both were loaded onto the computer which he had been given by DPA to do his work. It was put to him by Mr Owusu that when he joined in February 2019 he only had access to 2D AutoCAD, per Mr Padalino’s initial evidence in his first witness statement, but Mr Gill gave the rather ambiguous response that he had “full” AutoCAD, saying, “Yes, but AutoCAD has basic versions of 2D and 3D within it. I have both 2D and 3D on my laptop”. He described it as “a basic tool – we need this to be able to work, to be able to draw”. Again, when pressed by Mr Owusu to clarify what he meant, he said that 3D AutoCAD was available within the DPA office environment, for him to use, when he joined in February 2019. Of course, Mr Gill cannot assist the court with whether DPA’s computers had 3D AutoCAD at the time that Mr D’Aguanno was working there, as Mr Gill arrived at DPA after Mr D’Aguanno had left. 35.It is Mr D’Aguanno’s case that Mr Padalino was barely computer literate and needed assistance with even very simple tasks on his computer. Although this may be somewhat exaggerated (and I make no finding whether it is or not), the fact that Mr Padalino was not proficient with computers was, in my judgment, readily apparent from his confused oral and written evidence. It also appears to be supported by his own written evidence, as Mr Padalino states in his first witness statement: “I do not enjoy using computer software and I do not have the time to detail my ideas and therefore I hand these designs over to my staff to finalise them and turn them into something that could be presented to the client”. I am satisfied on the evidence before me that Mr Padalino had little proficiency with, interest in, or understanding of computers or computer software. 36.Taking this and the confused and contradictory nature of Mr Padalino’s evidence on the point into account, I prefer Mr D’Aguanno’s evidence and find on the balance of probabilities that at the time that Mr D’Aguanno was working for DPA, it had only the programs listed by Mr Padalino in his first witness statement available for staff use on DPA computers, but Mr D’Aguanno also used personal copies of 3D AutoCAD and Rhino on his own laptop. Accordingly, I find that Mr Padalino is mistaken when he says that Mr D’Aguanno was using 3D AutoCAD to produce 3D models on the DPA computers. Rather, I find that it is more likely than not that he was using 3D AutoCAD to produce 3D models on his own laptop. I accept Mr Gill’s evidence that after Mr D’Aguanno had left, by the time he started working for DPA in February 2019, DPA had licensed 3D AutoCAD for employees’ use. CGI work at DPA 37.Mr Padalino accepts that before Mr D’Aguanno started working for DPA, DPA’s CGI work was generally sent out of house to a company in Italy called Comoglio Architetti (“Comoglio”). Mr D’Aguanno says that was because there was nobody internally who could do that specialised work, and also because DPA itself did not have the computing requirements needed to carry out the work. There is some dispute on the former point which I do not need to resolve - Mr Padalino in cross-examination said that they had previously had a member of staff who had carried out such work, who had left – but little dispute on the latter. Mr Padalino stated that DPA found it more cost-effective to send the work out, rather than buy software and train staff to use it. He described CGI software as expensive. Of course, 3D AutoCAD has CGI capability, and this perhaps provides additional support for my finding that DPA did not license 3D AutoCAD for staff use at the time Mr D’Aguanno was working there. In any event, Mr Padalino accepted in cross-examination that this was an unconventional approach to CGI work for a long-established architectural practice employing about 14 staff members working on a variety of projects large and small. He said that DPA had worked this way for the previous 20 years or more. 38.There is a little dispute about timing (upon which nothing turns), but it is common ground that once Mr D’Aguanno was working regularly at DPA, he took over the CGI work as he had both the skills to do so and a laptop with sufficient necessary software and computing power to do it. The “missing” CGI works DPA’s position 39.At paragraphs 12 – 19 of his witness statement Mr Padalino explains how 3D models and CGIs are created and why and how they are used. I do not think it is disputed that he obtained some of this information from Mr Gill: this level of technical knowhow was not within his own knowledge. The steps he highlights are: i)Surveying a site and drawing it up to show precisely how the current structure is mapped out on the site; ii) Drawing up the existing structure in 2D plans and elevations; iii)Producing a 3D AutoCAD model from 2D AutoCAD drawings and elevations. He describes this step as “solely for the purpose of enabling further steps to be undertaken in the process using other software, as it extracts the dimensions and heights of the structure. You can then punch out the openings of the windows and doors only, but not in detail, or showing any of the intended materials to be used. The finished file, what is known as a “3D AutoCAD Model” and is the last stage on “AutoCAD software” before then having to be imported to a separate CGI software, such as “Rhinocerus3D CGI software” to continue the process”. He describes the 3D AutoCAD model as “a crude wire model”; iv)Once imported into CGI software such as Rhino, introducing all details of the finished building. Once this is done, the model can be spun to the desired angle/view, and then “rendered” to show all finishes and the correct lighting. This process takes several hours during which time the software is left to run. The result of this is a static 3D image at the desired angle/view with the chosen finishes; v)Finally, the CGI is imported to Adobe Photoshop to add contextual surroundings to the building such as sky, trees, people, and/or cars. 40.Mr Padalino sets out in his first witness statement the documents he believes are missing from DPA’s server as: i)CGIs, which he describes as “the final representation drawings in 3D”; ii) Rhino 3D Images, which he says are “also referred to as CGIs”; iii) .3DM files generated by Rhino software; iv) AutoCAD drawings which he describes as “.dwg file – a file type generated by Autodesk AutoCAD software. Can contain 2D and 3D plans and models and other information such as text notes and drawing layouts. 3D models can be created in AutoCAD”. 41.Although DPA’s pleadings do not reference or mention Rhino at all, then, Mr Padalino’s evidence is that what is missing for a number of projects is the ‘Rhino3D CGI Model’ from which CGIs can be created, rendered and then finished in Adobe Photoshop. He explains that he needs these in order to be able to produce CGIs showing different views/aspects of each project, different lighting, changing the finishes, etc. He does not detail exactly what DPA says is missing, as he says at paragraph 33 of his first witness statement, “There is no way for us to be able to determine exactly what was taken, or for which projects. Ultimately this is something only the Defendants have first-hand knowledge of”. He says that he initially believed that the missing documents may have resulted from an oversight by Mr D’Aguanno in failing to save document files from his laptop to the DPA server. However, he now says that the Defendants’ “defensive and unhelpful” manner, and the fact that Mr D’Aguanno and Ms Muller have set up their own practice, “points to these items being removed”. He asks the court to infer that the timing of their resignations, within days of each other during the Christmas holidays when few people were in DPAs offices, gave them the opportunity to copy and remove documents. 42.Mr Padalino describes the search for the missing documents in the following terms: i)at paragraph 45 of his first witness statement, “I have also spoken to a number of members of staff… together with our IT Company, who also carried out a search on our behalf to find the CGIs.