HT-2021-000363 - [2025] EWHC 532 (TCC)

IBM’s case is that it did not discover, and could not with reasonable diligence have discovered, the concealment prior to 25 August 2020.

Emma Wright is a qualified solicitor who, in 2020 was the claimant’s Litigation Counsel, UK & Ireland. In her statement, Ms Wright confirmed that prior to 25 August 2020, she was not aware of any link between Winsopia and LzLabs, the existence of the SDM, or any of the matters constituting breach of any software licence agreement between Winsopia and IBM.

Steve Wallin, executive product development leader at IBM stated in evidence that he became aware of LzLabs, but not Winsopia, in late 2018. His recollection is that LzLabs was making announcements about a potentially new product and that it was offering a cloud based mainframe platform. When Mr Wallin heard about LzLabs, he was not particularly concerned and it did not raise any red flags. In October 2020 Mr Wallin discovered that IBM Corp was conducting an investigation into LzLabs, led by Mr Anzani. Mr Wallin’s evidence is that he became aware of the relationship between LzLabs and Winsopia in January 2021, when he sent Winsopia the audit letter as set out above.

Ian Mitchell, Strategic Modernisation Leader at IBM, stated that he first became aware of LzLabs in 2016, when he read on the Internet about its development of the SDM. From around the middle of 2016, Mr Mitchell assisted Mr Anzani of IBM Corp in Project Eiger. Mr Mitchell’s evidence was that he did not become aware of Winsopia until these proceedings were commenced in September 2021.

The defendants’ case is that IBM knew, or should with reasonable diligence have known, about the link between Winsopia and LzLabs from about: (i) August 2013, when the ICA was entered into; (ii) 2017 when Mr Knight became aware of LzLabs as Winsopia’s parent company; (iii) 2018 when Mr Anzani was informed of the link between LzLabs and Winsopia by Robert Soprano, which knowledge should be attributed to IBM.