Case No. IP-2021-000073

”) fall within the scope of clause 5 of the RDA. 11.The identified issues are as follows:1.Whether the Defendant must permit Lawler Consulting Limited to conduct the Third Audit, even if Lawler Consulting Limited does not enter into the draft non-disclosure agreement that the Defendant provided on 7 July 2021. 2.Whether the Defendant must provide (a) the Claimant and/or (b) the auditor appointed to conduct an audit inspection under Clause 5 with copies, including electronic copies, of all documents inspected as part of such an audit, and whether the Defendant’s refusal to provide such copies is a breach of Clause 5. 3.Whether the Part B Requested Documents are agreements or other records which may be the subject of an audit inspection under Clause 5. 4.Whether an audit inspection under Clause 5 is limited to a physical on-site inspection of documents in the Defendant’s offices during normal working hours. 5.Does Clause 5 allow the third party auditor to carry out an audit inspection as regards a period that has already been inspected and, if so, on what basis? 6.Does Clause 5 entitle the third party auditor to provide the Claimant with information derived from the audit inspection (including confidential information belonging to (a) the Defendant and/or (b) third parties) other than the third party auditor’s conclusions as to whether or not the Defendant has complied with its obligations under the Agreement and the basis of that conclusion (including the amount of any over- or under-payment but without otherwise disclosing any confidential information)? 7.To what extent is the Defendant entitled to redact documents seen by (a) the third party auditor, (b) Suttons Solicitors and any other professional advisors of the Claimant, and (c) the Claimant? 8.Should the Court order specific performance of the Defendant’s obligations under Clause 5? 9.Should the Court make the declarations set out in paragraphs 43(3) to (5) and (7) of the Particulars of Claim? The Defendant has admitted paragraphs 43(1), (2), (6) and part of paragraph 43(7). 10.Should the Court make the declarations set out in paragraphs 35(6) to (11) of the Defence and Counterclaim? The Claimant has admitted paragraphs 35(1) to (5). 12.This is a surprisingly large number of issues to come out of one short and simple audit clause. The reason for that is that the parties do not trust each other. As Mr Roberts KC put it in his oral submissions for Pixdene, “the milk of human kindness has long since evaporated between them”. Both he and Mr Caddick KC for Paddington ask the Court, in resolving these disputes, to give as much guidance as possible about what clause 5 obliges or entitles them to do and what it does not, without leaving anything to the common-sense of the parties to sort out between them, since, they believe, they will not. 13.Issue 1 is no longer in dispute. Paddington accepted in its Defence that it cannot require a third party auditor to enter into a non-disclosure agreement, and that Pixdene’s rights provided by clause 5 are not dependent on it doing so. It does not object to the declaration sought by Pixdene to this effect.C.