Case No. IP-2019-000175

;(v)The Defendants’ disclosure contains very few documents relating to Wellington House which is surprising given that this is an ongoing project. In particular, they have not disclosed any hand drawn sketches; (vi)The Defendants disclosed further documents in their second witness statements, namely a survey by a firm called SJ Geomatics, which Ms Muller says was provided to them by Mr Simpson. The Defence makes no reference to using a third-party survey and it was not disclosed in the initial disclosure; (vii)The design documents disclosed by the Defendants reproduces DPA’s own plan, or a substantial part of it. In order to do this, the Defendants would have to be in possession of DPA’s own CAD drawing. 69.Dealing with these shortly: I do not infer anything adverse in the Defendants directing DPA to speak to Mr Simpson in the first instance. Both Mr D’Aguanno and Ms Muller said that they knew that Mr Padalino would be angry that they had left DPA and were working with Mr Simpson, and in the particular circumstances (which include that Mr Simpson and Mr Padalino’s working relationship had acrimoniously broken down before Mr D’Aguanno and Ms Muller left DPA at the end of December 2018) it seems to me understandable that they would do so. 70.In relation to the timing of Mr D’Aguanno and Ms Muller leaving DPA, much of the correspondence between the parties, Mr Padalino’s evidence and submissions makes apparent Mr Padalino’s displeasure that they gave very little notice of their intention to depart and did so during a holiday period. It seems that Mr Padalino was happy to obtain all the benefits of not putting them on his payroll as employees – reduced tax burden, no requirement to pay holiday pay, sick pay, parental leave etc – but failed to appreciate that the flipside of this was that they could walk out with little or no notice, which is what they did, albeit only after writing full handover notes on all of their projects. This is not a basis, without more, for the court to infer that in doing so they showed mala fides, or that they timed it so that they could remove documents from the DPA server and I am satisfied that I should not draw such an inference for the following reasons: (i)Mr D’Aguanno had sufficient facility with computers to be trusted with archive backups. I am satisfied that he could have copied and removed electronic documents at any time if he had wanted to do so. He did not need to wait for Mr Padalino to be out of the office. (ii)If they had mala fides towards DPA then I think it is unlikely that they would have bothered writing the comprehensive handover notes that I am satisfied they did write, and which are in the bundle. (iii)Mr D’Aguanno’s and Ms Muller’s evidence was that they had been planning to set up their own firm for some time and they chose to leave DPA at Christmas in order to set up MUDA at the start of 2019, when they had the opportunity to take cost-effective office space from Mr Simpson. This seems to me as good a reason as any and I accept it. 71.I understand the sketches on the MUDA website were of the new scheme designed by MUDA. I see no reason why they should not have put them there. 72.Whether or not the SJ Geomatics survey was disclosed in these proceedings in the Defendants’ initial disclosure or later, I am satisfied that it was commissioned by Mr Simpson and produced by SJ Geomatics in January 2019 and provided to the Defendants in order to start their design work on the new Wellington House scheme. 73.The design document that DPA says reproduces DPA’s own plan or a substantial part of it, is the plan of the existing building on the Wellington House site. Mr D’Aguanno says, fairly, that it is not surprising that two surveys of the same site and existing building are similar, as the aim is to capture accurately what is already there. However, he points out a number of minor but real differences between the plans which I agree do not support an inference of copying. He also asks why on earth the Defendants would use DPA’s plans to describe an existing building when they have a professionally produced measured survey from SJ Geomatics, produced for the purpose, to use instead. I find that it is highly improbable that they would do so, and on balance I am satisfied that the Defendants did not. It was also put to Mr D’Aguanno that he used DPA’s 3D model of the Wellington House site to produce 2D plans of the site, and I agree with Mr D’Aguanno that this is highly improbable: he said it would be useless to use 3D drawings as a basis for tracing or describing a building and I accept that. It seems to me that there would be no purpose to using the design or tracing of a 3D model in this way particularly when one has a detailed measured survey. 74.Given the existence of the third party survey, and the fact that the Defendants were instructed to and did come up with a wholly different scheme, and the absence of any other evidence of possession, use or reproduction of the Wellington House Works, the Claimant has failed to satisfy me that the Defendants or any of them have possessed, used or reproduced the whole or a substantial part of the Wellington House Works for any reason.