Case No. IP-2021-000073

37.Pixdene’s position is that it is entitled to copies, including electronic copies, of all documents inspected as part of an audit under Clause 5. In relation to the provision of copies to Pixdene (as distinct from provision of copies to the auditor, which I will deal with shortly), it submits:i)Copies would assist Pixdene in taking legal advice as to whether it had sufficient basis to bring a claim in relation to underpayments identified by the auditor. It makes commercial sense for Pixdene to be provided with copies during the audit to reduce costs through the provision of advice at an early stage and by pleading claims by reference to supporting documents and facts drawn from such documents;ii)It is critical for Pixdene to receive copies of inspected documents to enforce its rights pursuant to the RDA.38.Paddington’s position is that: i)Clause 5 means what it says. It gives no right to inspect to Pixdene itself (as I have found); andii)Pixdene’s right for a third party auditor to inspect does not require and cannot be construed as requiring Paddington to provide Pixdene with copies of the relevant documents either during or in advance of an inspection, as it is silent on the point, and should not be implied. Discussion and determination39.I have already held that clause 5 gives Pixdene no right to inspect, no such right should be implied, and I have found that the parties’ purpose in agreeing clause 5 in the form it is in, is to keep Pixdene away from Paddington’s information whilst putting in place a mechanism for Pixdene to ensure Paddington’s compliance with its obligations under the RDA. 40.Clause 5 is silent on the issue of whether Paddington is obliged to provide copies of documents for inspection to Pixdene. I agree that the wording cannot be construed to contain such an obligation, and that it should not be implied, for the same reasons that I have found no right of Pixdene to inspect: because it would thwart the purpose of clause 5.41.Whether it might be convenient, or cost-effective, or of assistance for Pixdene to have copies of Paddington’s inspected documents, as Pixdene submits, is not the point. That is not what the parties agreed in the RDA, and it would fatally undermine the purpose for which clause 5 was constructed. It follows that I am satisfied that clause 5 does not require Paddington to provide Pixdene with any copies of documents made available for inspection by the third party auditor.42.In relation to Pixdene’s submission that it is “critical” for Pixdene to receive copies of inspected documents to enforce its rights pursuant to the RDA, I do not accept that submission. In my judgment, it is critical that Pixdene understands the auditor’s conclusions and the basis upon which those have been reached, but that does not require disclosure of documents by Paddington to Pixdene. I am satisfied that it is likely that initial legal advice can be obtained on the basis of the auditor’s report, which may be sufficient to produce a letter of claim or to particularise a claim. If copies of certain of the inspected documents are necessary to enable Pixdene properly to consider or bring proceedings for enforcement, then Pixdene can seek copy documents from Paddington or make an application for pre-action disclosure or obtain them in disclosure in enforcement proceedings.