Case No. IP-2021-000073

34.There is no dispute that a third party auditor can inspect pursuant to clause 5. The question of whether Pixdene also has such a right is not identified as an issue in the case and Pixdene does not explicitly argue that it does. However, as I will go on to consider, Pixdene argues that clause 5 should be construed to require Paddington to send to Pixdene in advance of inspection all the documents which it is required to make available for inspection, which is tantamount to inspection itself (or some hitherto unknown concept of “pre-inspection”, perhaps), so there is a blurring of the lines there which, given the difficult relationship between the parties, I consider should be drawn sharply. Accordingly I will deal with it.35.The language of Clause 5 specifies only a right for a third party auditor to inspect Paddington’s documents. It does not specify that Pixdene may inspect those documents, although it would be easy to do so. There must be a reason for that drafting choice, and the most obvious reason which presents itself is that the parties agreed that Pixdene should not have direct access to Paddington’s documents. I agree with Paddington that it is relevant that the parties agreed the wording of clause 5 not only to exclude reference to Pixdene, but also to specify that a third party auditor had right of inspection. In other words, not any auditor (such as, for example, an internal auditor at Pixdene). “Third party” are therefore words of limitation which, in my judgment, must have been chosen to ensure that whoever was coming in to inspect those documents for the purposes of audit, was independent of Pixdene (and, indeed, Paddington). The language is clear and, in my judgment, unambiguous in this respect, and I am satisfied it cannot be construed as providing Pixdene with a right of inspection. 36.Nonetheless should such a right be implied? The facts that Pixdene was not explicitly given a right to inspect, and that the parties agreed that any auditor must be a third party, militate against the implication of such a term in my judgment, because I agree with Paddington’s submission that clause 5 appears to be deliberately constructed to keep Pixdene away from Paddington’s documentation, whilst putting in place a mechanism for Pixdene to ensure that Paddington has complied with its obligations under the RDA. The implication of a term giving Pixdene a right of inspection is therefore neither obvious nor necessary but the opposite: it would, in fact, undermine the very purpose of the careful choice of language in clause 5.