Case No. IP-2021-000073

”), or that such a limited disclosure right should be implied, as it is necessary to give effect to the purpose for which inspection was given, i.e. to audit Paddington’s compliance with the RDA. Without the ability to share information to that limited extent, clause 5 has no commercial efficacy, in my judgment, as the purpose of permitting inspection would be thwarted. 58.Paddington submits that the limited disclosure right that I have identified should in fact be narrower, so that the auditor is not permitted to disclose any confidential or privileged information on which the auditor’s conclusions are based. So far as confidential information is concerned, I disagree. If it is necessary to disclose confidential information obtained from the inspection of documents in order to share the matters upon which the parties intended the auditor to report to Pixdene, then in my judgment the auditor may disclose that information whether it is confidential or not, as otherwise, again, the purpose of the inspection clause would be undermined at best or thwarted at worst. That should also give Pixdene some comfort in relation to its fear that Paddington will over-designate documents as confidential. 59.So far as legally privileged information is concerned, I agree with Paddington. I consider that if the parties were asked at the time of agreeing the RDA, “Can Paddington withhold from inspection business records to the extent they are legally privileged?”, then they would have said, “Yes, that goes without saying.” Accordingly, I am satisfied that such a term should be implied, for reasons of obviousness.