Global Coal Ltd v London Commodity Brokers

This judgment determines, as a preliminary issue, a question of interpretation of the standard form Product Licensing Agreement (“PLA”) used by the claimant Global Coal Limited (“Global Coal”) in connection with its attempt to establish and maintain a standard form contract for the international trading of coal, called the Standard Coal Trading Agreement (“SCoTA”). The issue of interpretation lies at the heart of proceedings by Global Coal against one of its licensees, the defendant London Commodity Brokers Limited (“LCB”) for breach of restrictions undertaken in the PLA, for which the remedy primarily sought is an injunction to restrain further breaches in the future. In order to make both the issue of interpretation and the PLA itself intelligible, it is necessary to say something about the background, as at 2005, when the PLA was made.

Historically, most coal has, since time immemorial, was in 2005 and still is consumed in the country in which it is mined. In 2005 some 6 billion tonnes of coal was mined, of which all but approximately 650 million tonnes was consumed in its country of origin.

Nonetheless, a significant amount of coal has for many years, going back at least to the 19^th century, been traded internationally. At least until the late 1990s, specific obstacles prevented coal from being traded as a commodity, and hindered the development of any significant market in coal derivatives. Apart from difficulties of transportation (for which see Joseph Conrad’s early novel Youth, written in 1898) the particular difficulties relevant to the present case lay in the widely varying quality and specifications of coal available for export, even from a single country or port, and in the absence of any generally recognised standard terms and conditions for the sale and purchase of physical coal. Contracts tended to be both complex and bespoke.

An early attempt to ‘commoditise’ coal was made by Enron, in the form of the Standard European Coal Agreement but, although promoted by Enron with some success, it did not long survive Enron’s spectacular collapse, and had fallen out of widespread use by 2005.

Following a memorandum of understanding signed on 23^rd October 2000 between the major coal producers Anglo American, BHP Billiton, Glencore International and Rio Tinto, Global Coal was formed in 2001 as an English limited company by a group of leading producers and consumers of coal, in order to facilitate trading both in physical coal products and in their associated financial derivatives, with a view to creating a liquid, commoditised market in such products. The devising and promotion of SCoTA was designed to deal with both the obstacles to which I have referred. SCoTA provided both standard terms of purchase and sale and, most importantly, a growing set of precise specifications for different types of coal, by reference to its physical properties, such as calorific value, moisture content, volatile matter, ash and sulphur content. Thus, by reference to SCoTA terms and conditions, and abbreviations for the specifications set out in SCoTA’s many schedules, traders in physical coal could make ready comparison of price for equivalent amounts and specifications, enabling purchases and sales to be made with (by comparison with early periods) relative ease, speed and efficiency, thereby bringing both liquidity and transparency into the physical coal market.

The creation of that physical market was the essential foundation for the development of a market in coal derivatives, which Global Coal sought also to facilitate by the creation of an electronic trading platform through which both physical coal and its derivatives could readily be traded by buyers and sellers. Global Coal also became one of the (but not the only) publishers of data and indices about the coal market, and in particular about prices and volumes sold on SCoTA terms. It is common ground that, by 2005, SCoTA had become the only standard term contract upon which coal was traded internationally in significant volumes.

Besides devising SCoTA in its original form, Global Coal has continued to monitor and develop it both by amendments and revisions to take account of market concerns, and by the addition of further specifications in its schedules. Global Coal also developed its own active coal brokerage. The cost of its activities was by 2005 funded both by brokerage commission and by payments made by coal traders for access to its electronic trading platform, and to the data and indices to which I have referred. Nonetheless, some significant international coal traders still continued to trade between each other on bespoke, mutually agreed, terms.

Inevitably, the creation and development by Global Coal of the SCoTA contract, of its trading platform and of the data and indices relating to trading in coal on SCoTA terms gave rise to a variety of intellectual property rights. Furthermore, Global Coal registered as trade marks a number of the acronyms and abbreviations used in connection with SCoTA including, but not limited to, the word “SCoTA” itself. As a result, Global Coal’s ambition to promote SCoTA as the basis for an international commoditised market in physical coal and coal derivatives necessitated that it licence both traders and brokers to make use of its intellectual property rights for that purpose.

Global Coal developed a standard form of licence agreement, namely the PLA, which it used for licensing both traders and brokers wishing to participate in the market for dealing in physical coal and coal derivatives on SCoTA terms. I shall, for convenience, refer to it as the SCoTA market.

The PLA is a relatively concise document by modern standards and, although the issue of interpretation which I have to decide relates only to one part of it, the parties’ submissions left virtually no other part of it untouched, so that it is convenient to set it out as a whole:

“THIS AGREEMENT is made on

THE PARTIES AGREE as follows

WHEREAS

(A)

globalCOAL has developed certain products, indices and standards to facilitate the trading of coal both in physical form and by means of various financial instruments..

(B)

The Licensee wishes to use these products, indices and standards on the terms set out in this Agreement for the purpose of entering into or arranging transactions for the trading of coal with third parties licensed on the same terms as in this Agreement.

AGREED TERMS

1.1

“globalCOAL Licensees” means any third party who is licensed by globalCOAL on the same terms as set out in this Agreement and who is listed as such by globalCOAL on its website at “www.globalcoal.com/general/marketmembers.cfm”

“globalCOAL Products” means any instrument, data, standard, price, graph, product, index, contract, agreement, methodology or quality specification developed and published by globalCOAL and intended to facilitate the trading of coal (whether in physical form or by means of a financial instrument);

“Intellectual Property Rights” means patents, trade marks, service marks, registered designs, applications for any of those rights, trade and business names (including internet domain names and e-mail address names), unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions, trade secrets, rights in confidential information and rights of the same of similar effect or nature in each case in any jurisdiction;

“Purpose” means the use of globalCOAL Products as the basis for, or as an integral part of, arranging, broking or entering into a Transaction;

“Trade Marks” means SCoTA, RB, RB1, RB2, ARA INDEX, BOL, RB INDEX, NEWC INDEX and NEWC and such other trade marks as globalCOAL may use from time to time in connection with globalCOAL Products;

“Transaction” means a transaction for the trading of coal in any form of instrument involving globalCOAL Products or Trade marks with a globalCOAL Licensee.

1.2

In this Agreement, unless the context requires otherwise, the following words shall have the following meanings:

1.2.1

the clause headings are included for convenience only and shall not affect the construction of this agreement;

1.2.2

words denoting the singular shall include the plural and vice versa;

1.2.3

words denoting a gender shall include a reference to each gender;

1.2.4

a person includes a corporate or unincorporated body;

1.2.5

a reference to a party is a reference to globalCOAL and/or the Licensee;

1.2.6

a reference to writing or written includes faxes but not email.

2, Grant

2.1

globalCOAL hereby grants to the Licensee on the terms set out in this Agreement, a non-exclusive, non-assignable license (the “Licence”) under its Intellectual Property Rights in the globalCOAL Products to use the globalCOAL Products and the Trade Marks:

2.2

The Licensee undertakes that it will not:

2.2.1

use the globalCOAL Products or the Trade Marks other than for the Purpose;

2.2.2

grant any sub-licences in relation to the globalCOAL Products or the Trade Marks;

2.2.3

use the globalCOAL Products in an on-screen trading environment other than globalCOAL’s;

2.2.4

use the globalCOAL Products to enter into, arrange or facilitate any Transaction with third parties who are not globalCOAL Licensees.

3.

Duration

3.1

This Agreement shall commence on the date of this agreement and shall continue unless terminated in any of the circumstances in Clause 7.

3.2

globalCOAL agrees to add the Licensee to the list of globalCOAL Licensees at www.globalcoal.com/general/marketmembers.cfm as soon as reasonably practicable following receipt of a signed copy of this Agreement from the Licensee.

4.

Intellectual Property Rights

4.1

The rights of the Licensee to use globalCOAL’s Intellectual Property Rights in the globalCOAL Products and Trade Marks are limited to the permitted use of the globalCOAL Products and Trade Marks set out in clauses 2.1 and 2.2. For the avoidance of doubt, the Licensee shall not obtain any right of ownership or title to the globalCOAL Products or Trade marks.

4.2

The Licensee acknowledges globalCOAL’s ownership of globalCOAL’s Intellectual Property Rights in the globalCOAL Products and the Trade Marks and agrees to include the following notice (or any variation thereof as may be agreed between globalCOAL and the Licensee in relation to a particular document) in any material produced by it which includes any reference to a globalCOAL Product or Trademark:

“globalCOAL”, “SCoTA”, “RB” “RB1”, “RB2”, ARA Index”, “BOL”, “RB Index”, NEWC Index” and “NEWC” are trade marks of globalCOAL. The ScoTA terms and globalCOAL’s indices are the copyright of globalCOAL 2002 and have been licensed for use by the Licensee. globalCOAL accepts no liability in connection with the use of any globalCOAL product”.

5.

Liability

5.1

Except as set out in this Agreement, all conditions, warranties and representations, expressed or implied by (i) statute, (ii) common law or (iii) otherwise in relation to the globalCOAL Products are excluded. globalCOAL makes no warranty, express or implied that globalCOAL Products are or will be suitable for the Purpose.

5.2

globalCOAL shall not be liable to the Licensee or to any third parties for any direct or ijndirect damage including, without limitation, economic loss, loss of profit or loss of opportunity for profit, or for other indirect or consequential loss or damage which the Licensee or any third party may suffer as a result of or in connection with the Licensee’s use of globalCOAL Products or the Trade Marks.

6.

Waiver and Amendments

6.1

Waiver of any breach of this Agreement shall not be construed as a waiver of any other breach.

6.2

globalCOAL reserves the right to vary any of the terms of this Agreement at any time upon 20 (twenty) days prior written notice to the Licensee. The Licensee will be deemed to have accepted any amendments notified to it by globalCOAL pursuant to this clause if the Licensee continues to use globalCOAL Products after this period of notice has expired.

6.3

The Licensee acknowledges that damages would not be a sufficient temedy for a breach by it of this Agreement and globalCOAL is entitled to the remedies of injunction and specific performance and other equitable relief for a threatened or actual breach of this Agreement.

6.4

If any provision of this Agreement is determined to be null and void or unenforceable such provision shall be deemed to be severed, and the remaining provisions of this Agreement shall remain in full force and effect.

7.

Term and Termination

7.1

This Agreement shall come into force on the date of this Agreement and shall remain in full force and effect until it is terminated pursuant to this clause.

7.2

globalCOAL may terminate this Agreement at any time without cause by giving not less than one week’s prior written notice.

7.3

globalCOAL may terminate this Agreement with immediate effect by written notice to the Licensee on or at any time after the occurrence and events specified in clause 7.4 in relation to the Licensee.

7.4

The events are:

7.4.1

the Licensee being in breach of any of its material obligations under this Agreement;

7.4.2

the Licensee passing a resolution for its winding up or a court of competent jurisdiction making an order for the Licensee’s winding up or dissolution;

7.4.3

the making of an administration order in relation to the Licensee or the appointment of a receiver over, or an encumbrancer taking possession of or selling an asset of the Licensee;

7.4.4

the licensee making an arrangement or composition with its creditors generally while making an application to a court of competent jurisdiction for protection from its creditors generally;

7.4.5

the Licensee challenging the validity of (1) globalCOAL’s Intellectual Property Rights in any of the globalCOAL Products or (2) the Trade Marks.

8.

Consequences of Termination

8.1

All rights and obligations of the parties shall cease to have effect immediately upon termination of this Agreement except that termination shall not affect:

8.1.1

the accrued rights and obligations of the parties at the date of termination; and

8.1.2

the continued existence and validity of the rights and obligations of the parties under those clauses which are expressed to survive termination and any provisions of this Agreement necessary for the interpretation or enforcement of this Agreement

8.2

On termination of this Agreement howsoever occasioned, the Licensee shall immediately cease any use of globalCOAL Products and the Trade Marks and shall remove and destroy (as the case may be) all copies of documents containing references to globalCOAL Products or Trade Marks in its possession or control, howsoever such copies may be kept whether in hard copy, electronic or any other form including machinery readable form as soon as reasonably practicable.

9.

Exclusion of Third Party Rights

9.1

A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

10.

Governing Law and Jurisdiction

10.1

This Agreement and all matters arising from it or connected with it shall be governed by English law.

10.2

The Courts of England have exclusive jurisdiction to settle any dispute arising from or connected with this Agreement.

For and on behalf of the Licensee:

Authorised Signature: [signed]

Print Name and Capacity:

Date ”

The terms of a PLA signed between Global Coal and a counterparty would not typically constitute the entire agreement between them. As between Global Coal and traders in the SCoTA market, the PLA would frequently (if not typically) be accompanied by a parallel agreement whereby the trader became, for an annual payment, a Market Member, with a consequential entitlement to access to Global Coal’s electronic trading platform, and to indices and other data available to Market Members on its website. The PLA made between Global Coal and LCB as a broker was the written part of a larger agreement, the other part of which consisted of an oral commission agreement whereby LCB agreed to pay $0.005 per tonne of coal for each side of any trade which it brokered on SCoTA terms. This commission agreement was not reduced to writing until June 2007, in the form of a variation to the PLA made by Global Coal pursuant to clause 6.2 of the PLA. Nonetheless, LCB paid Global Coal commission at the agreed rate from the making of the PLA itself in August 2005.

Nor does the PLA describe in terms the whole of the benefits accruing to a person signing it as licensee. Although Global Coal does not claim rights of confidentiality in the current (or past) versions of SCoTA, and although the detailed specifications contained in its schedules are publicly available to all comers on its website, one consequence of becoming a licensee under the PLA is (at least in 2010) that it unlocks access to the full terms of SCoTA, thus enabling a trader to know what it is contracting for in the SCoTA market, and a broker to understand the terms by reference to which it seeks to arrange and negotiate a SCoTA trade.

It will be apparent from the combined effect of recital (B), the definitions of Purpose and Transaction, and clause 2.2.1 together with 2.2.4 of the PLA, that to arrange or facilitate a trade on SCoTA terms in which one of the parties to the trade is not a Global Coal Licensee may involve a breach of the Licensee’s undertakings in clause 2.2. The casus belli for the present claim was Global Coal’s belief (the truth or otherwise of which has yet to be tested) that LCB had brokered two trades on SCoTA terms in which one of the parties to each was not a Global Coal Licensee.

Global Coal’s case is that the use of any globalCOAL Products (as defined) in connection with the arranging or facilitation of any trade on SCoTA terms in which one of the parties is not a Global Coal Licensee (as defined) involves a breach of clause 2.2. I shall refer to globalCOAL Products (as defined in the PLA) as “the Products”. LCB’s defence, besides denying that either of the relevant trades were on SCoTA terms, is that a breach of clause 2.2 is committed by a broker only if the arrangement or facilitation of a trade on SCoTA terms involved a use of Global Coal’s Intellectual Property Rights (as defined). LCB claims that even if the two trades in question were on SCoTA terms, and even if its involvement in either of them amounted to arranging or facilitating (which it denies in relation to one of them) nonetheless its involvement in those two trades involved no use, let alone infringement, of Global Coal’s Intellectual Property Rights since it involved no copying of SCoTA, nor use of Global Coal’s trade marks in a manner which, but for the PLA, would have amounted to an infringement.

There was no dispute between the parties as to the applicable principles. They are laid down by the House of Lords in Investors Compensation Scheme Limited v. West Bromwich Building Society [1998] 1 WLR 896, in particular per Lord Hoffmann at pp. 912-3. In Chartbrook Limited v. Persimmon Homes Limited [2009] 1 AC 1101, at paragraph 14, Lord Hoffmann summarised those principles as follows:

“It is agreed that the question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.”

The application of those principles to the issue of interpretation in the present case is a little complicated by the following factors. First, the PLA is a standard form document designed to be used as between Global Coal and a variety of potential counterparties, including both coal producers and consumers, intermediary traders, derivative traders and brokers.

The second complicating factor is, as explained above, that the PLA will not invariably or even usually constitute an entire bargain. Rather it will form a standard form part of a larger bargain which may be, as here, partly written and partly oral, which may also be on standard terms, or which may, as here, be bespoke, in the sense that the commission agreement was negotiated on a basis specific to Global Coal and LCB.

It is theoretically possible that a standard form document such as the PLA may acquire different meanings, or at least different shades of meaning, when considered in the context of broker Licensees as opposed to trader Licensees. Equally, it is theoretically possible that the presence of different bespoke terms in the wider agreement of which the PLA forms part may lead to it acquiring different meanings, or shades of meaning, when considered in the context of the contract between the relevant parties, viewed as a whole. In the present case there is at least a substantial potential significance in the fact that the PLA was made between Global Coal and LCB as part of an agreement pursuant to which LCB paid a monetary price for the rights conferred under the PLA, whereas a PLA was typically issued by Global Coal to a trader wishing to participate in the SCoTA market for no payment at all.

The issue of interpretation in the present case concerns not merely a shade of meaning to be attributed to some part of the PLA. It is a fundamental issue which goes to the heart of its meaning and effect. Lord Hoffmann’s reasonable person would not in my judgment be likely to conclude that the PLA meant something fundamentally different depending upon whether the relevance licensee was a broker or a trader, or whether the PLA had been obtained free, or for substantial reward. The reasonable person would think that the PLA was intended to have a uniform meaning in all important respects, regardless of the variations in the types of licensee and in the circumstances and other terms of the bargain of which, in any particular case, it formed part.

If that is right, it follows that the identification of the relevant matrix of fact in terms of the background knowledge which would reasonably have been available to the parties calls for a focus not upon what LCB, as a recently formed commodity broker intending to specialise in physical coal brokerage, might be supposed to have known about the background, but rather what might be supposed to have been reasonably available to a business entity of any kind seeking to participate in the SCoTA market in any way, and for that purpose seeking to obtain a PLA. In short, it calls for an identification of the relevant background knowledge or admissible matrix of fact at a high level of generality.

The prima facie relevance of other important contractual terms forming part of the bargain which included the PLA (such as, in the present case, the commission agreement) arises not because it is part of any relevant background knowledge or matrix of fact, but because of the fundamental principle that the meaning of a contract term is to be identified by reference to the contract as a whole. Nonetheless, the necessary search for a uniform answer to the question of interpretation in the present case means in my judgment that it would be wrong to attribute significance to features of the bargain between Global Coal and LCB which lie outside the PLA, unless those features may be supposed to be common to all the types of circumstance in which a PLA was issued at the material time. It is therefore inappropriate in the present case to place significant weight on the fact that LCB was required to pay a monetary consideration for the rights conferred by the PLA. It will be equally inappropriate to assume, contrary to the fact, that it was granted free. I consider that the presence or absence of a consideration for the grant of a PLA of a type which is not part of the terms of the PLA itself must therefore be treated as a neutral factor in relation to the present question of interpretation.

Before leaving the law, I must briefly mention two occasions upon which this very issue of interpretation of the PLA has been considered, namely by Patten J and then by the Court of Appeal in Global Coal Limited v. ICAP Energy Limited [2005] EWHC 3006 (Ch) and [2006] EWCA Civ 167. In that case Global Coal sought an injunction to restrain ICAP from displaying prices, bids or offers for Newcastle Australia coal financial products on its on-screen trading environment, contrary to clause 2.2.3 of the PLA. Global Coal had issued a PLA to ICAP in substantially the same form as that issued to LCB, although there is some indication that it contained in an additional clause 2.3 a warranty by Global Coal that it was the owner of the Intellectual Property Rights described in the PLA, which is absent from the version before this court.

Global Coal applied for an interim injunction pending trial and, although Patten J considered that the balance of convenience favoured the grant of such an injunction, he refused it on the grounds that in his view there was no arguable case that the undertakings in clause 2.2 of the PLA related to anything more than Global Coal’s Intellectual Property Rights in the Products, which were not, on the evidence, used by ICAP in connection with the conduct complained of, even though the Products themselves may have been used. At paragraph 18 Patten J said this:

“The PLA is intended to regulate the use by a licensee of the intellectual property rights of the claimant in the Global Coal products. The licensee, therefore, authorises what would otherwise be an infringement of those rights. This is made clear by cl 2.1 of the PLA, and also by cl 2.3. The existence of intellectual property rights such as trade marks, copyright or design rights in respect of particular material does, subject to certain statutory exceptions, confer a monopoly. In the context of infringement, use has an established meaning. An obvious case of use in relation to copyright material is reproduction, but there are also remedies available to restrain the use of the owner’s design and work product from being incorporated into the defendant’s own product or business if that would amount to passing off or a misuse of confidential information.”

The Court of Appeal (Ward, Lloyd and Wilson LJJ) allowed Global Coal’s appeal and granted an interim injunction. The following passages in Lloyd LJ’s judgment sufficiently explains its reasoning:

“30.

I see the force of Mr Wilson’s contention based on matching “use” in clause 2.2 to “use” in clause 2.1, and, for that matter, no doubt, tying other instances of the word “use”, such as in recital B, to the same meaning. It is a neat and conventionally literal reading. It may be right. But its consequences as regards the Claimant’s position seem to be remarkable and surprising, and it does seem to me that it may lead to a result which the parties cannot be taken to have intended. In my judgment there is substance in the Claimant’s contention that “use” , at least in clause 2.2 (and correspondingly in recital B), should be held to refer to any kind of use made by the Licensee of material which is made available to it by the Claimant under the PLA, whether it is use which would potentially infringe IP rights or not, and that the Defendant does make use of the Claimant’s NEWC Index, of SCoTA and of the specification for Newcastle coal (by inference) in presenting the relevant column of its coal screen to its clients for their use. That seems to me to be supported, in particular, by the terms of clause 2.2.1 and the broad terms of the definition of Purpose. What effect that reading would have as regards clause 8.2 is another matter. Mr Silverleaf submitted that it would not prohibit voice trading in Newcastle coal after termination of the PLA.

31.

Thus, the contest seems to be between a literal and a contextual interpretation of the clause, with some clear support in the terms of the document for the literal approach, but quite strong support for the contrary contextual argument from the result which the literal reading would achieve. It seems to me that this is sufficient, by itself, to make it impossible to conclude that the Claimant’s contention, in this respect, is not seriously arguable. Moreover, to test the contextual reading requires evidence as to what the relevant surrounding circumstances were. It may be that there will be no dispute as to these, at trial. But it seems quite likely, in principle, that there is more evidence that would be relevant on this than was before the judge, and this may be confirmed by the extent to which points which appear to be, at least potentially, relevant had to be clarified on instructions during the hearing before us. That seems to me to be another reason why it would be wrong to conclude that the Claimant’s case on “use” is not seriously arguable.”

The ICAP case never proceeded to trial, so that the investigation of the relevant surrounding circumstances falls to be conducted, for the first time, in this case.

Pursuant to case management directions made by HHJ Hodge QC sitting as a Deputy Judge of the Chancery Division on 15^th July 2009, the hearing before me was to have determined a number of preliminary issues, including but not limited to the issue of interpretation of the PLA. They included the question whether either of the allegedly offending trades had been on SCoTA terms, or had involved use of the Products, and the question whether LCB’s conduct in relation to those trades had involved any use or infringement of Global Coal’s Intellectual Property Rights. LCB raised the latter issue by claiming a negative declaration in its counterclaim. Global Coal did not engage with that issue by the assertion of any alleged use or infringement of its Intellectual Property Rights until, at the court’s direction early in the trial, a thirteen page detailed pleading of trade mark infringement, passing off and copyright infringement was produced by Mr Silverleaf QC and his junior Mr Nicholson.

It immediately became apparent that the intellectual property issues could not possibly be resolved either in the time allocated for the trial of the preliminary issues, or without significant delay to enable LCB to plead a response, and both parties to adduce further evidence. Furthermore, it became increasingly apparent that a decision on the issue of interpretation would be likely to save the parties substantial time and effort. A conclusion that the PLA prohibited use of the Products in the circumstances identified in clause 2.2 would call only for an investigation of that question in relation to the two relevant trades, and obviate the need for any lengthy determination of the intellectual property issues raised by Global Coal’s new pleading. By contrast, a decision that the PLA prohibited merely the use of Global Coal’s Intellectual Property Rights would necessitate the latter investigation, but render the former unnecessary.

The result of confining the issues for immediate trial only to the issue of interpretation of the PLA was that the evidence thus far deployed (including statements from three factual and two expert witnesses) was by no means limited to or even focused clearly upon the admissible matrix of fact. Nor had the parties troubled to identify by way of pleadings what each of them contended to be the relevant factual background. The court was therefore faced with the unwelcome prospect of an unfocused cross-examination about ill-defined factual questions. Further pleadings in relation to the factual background were therefore directed, and provided over the course of a weekend in the form of what eventually became a consolidated multi-coloured document which (albeit in an unorthodox manner) helpfully set out each parties’ case as to the factual background. As so often occurs when a requirement to plead focuses the minds of the parties’ legal advisers, there finally emerged a large measure of consensus as to the factual background, a precise identification of the passages in the witness statements by which it could be proved, and in the event cross-examination was only sought of one of LCB’s witnesses. It occupied less than an hour.

The witness in question was Mr Clive Grant Murray, a director of LCB, who had been the prime mover in its formation as a commodity broker in August 2005, with approximately one year’s prior experience as a physical coal broker when working for ICAP. Mr Murray personally negotiated the obtaining of the PLA from Global Coal during the same month as LCB was formed.

The cross-examination of Mr Murray was mainly concerned with his particular knowledge of the background, and with his subjective intentions in seeking the issue of a PLA for LCB. The extent of his particular knowledge is (for the reasons already given) of no particular assistance. His subjective intentions in negotiating the PLA are of course inadmissible. The result was that his evidence, honestly given though it no doubt was, added little to the identification of the relevant background.

I have not found it necessary to resolve such minor issues as to the admissible matrix of fact as are disclosed by a careful reading of the multi-coloured consolidated pleading. For the most part they concern matters of detail falling well below the level of generality at which it might be supposed that all types of intending applicants for a PLA shared a common understanding of the relevant background. Furthermore, for reasons which will appear, the resolution of the issue of interpretation of the PLA does not call for any minute or detailed understanding of the background, beyond that which I have already set out in paragraphs 2 to 9 of this judgment.

Mr Silverleaf tried hard to accommodate as part of the relevant background Global Coal’s own objectives in seeking to impose the PLA on all participants in the SCoTA market. He may have had in mind (although he did not cite) the following passage from Lord Wilberforce’s speech in Prenn v. Simmonds [1971] 1 WLR 1381 at 1385:

“It may be said that previous documents may be looked at to explain the aims of the parties. In a limited sense this is true: the commercial or business object of the transaction, objectively ascertained, may be a surrounding fact…. and if it can be shown that one interpretation completely frustrates that object, to the extent of rendering the contract futile, that may be a strong argument for an alternative interpretation, if that can reasonably be found. But beyond that it may be difficult to go: it may be a matter of degree, or of judgment, how far one interpretation, or another, gives effect to a common intention: the parties, indeed, may be pursuing that intention with different emphasis, and hoping to achieve it to an extent which may differ, and in different ways. The words used may, and often do, represent a formula which means different things to each side, yet may be accepted because that is the only way to get “agreement” and in the hope that disputes will not arise. The only course then can be to try to ascertain the “natural” meaning. Far more, and indeed totally, dangerous is it to admit evidence of one party’s objective – even if this is known to the other party. However strongly pursued this may be, the other party may only be willing to give it partial recognition, and in a world of give and take, men often have to be satisfied with less than they want. So, again, it would be a matter of speculation how far the common intention was that the particular objective should be realised.”

Notwithstanding Mr Silverleaf’s invitation, I do not intend to tread upon the dangerous ground of addressing what he called the commerciality of the rival interpretations of the PLA by reference to material, outside that document, suggestive of Global Coal’s intention in imposing it. In my judgment the objective purpose of the PLA is sufficiently stated in the document itself.

Like the Court of Appeal in the ICAP case, I do not pretend to have found this question at all easy. The ordinary meaning of the language used in the PLA does not in my view unequivocally point one way or the other and, even if it did, I would not have concluded that either of the interpretations favoured by the parties was a conclusion that flouted business common sense, or a result which the parties plainly could not have intended. The outcome has, for me, turned upon a careful weighing of all the factors (including but not limited to linguistic matters) for and against the rival conclusions.

I shall address Global Coal’s case first. In a nutshell, it is that the phrase “use the globalCOAL Products” on each of the three occasions where it is used in clause 2.2 means use the Products (as defined), and not the Intellectual Property Rights (as defined) in the Products. That phrase is used nine times in the PLA, and a version of it (without reference to the defined terms) appears in recital B as well. I consider that there are powerful linguistic indications that the phrase “use the globalCOAL Products” on every occasion of its use in the PLA means literally what it says, namely use the Products rather than the Intellectual Property Rights in the Products.

The phrase takes on that meaning from its first use in the recitals. Recital (A) refers to Global Coal as having “developed certain products, indices and standards to facilitate the trading of coal” both in physical and derivate form. Recital (B) then refers to the Licensee’s wish “to use these products, indices and standards on the terms set out in this Agreement for the purpose of entering into or arranging transactions for the trading of coal with third parties licensed on the same terms as in this Agreement”.

I consider it clear that the reference to Global Coal having products, indices and standards in Recital (A) is a reference to the Products (as later defined) themselves rather than merely to the intellectual property rights in them. Furthermore, it is in practice the Products themselves which facilitate the trading of coal rather than the use of the intellectual property rights in them. For example, the terms and detailed specifications set out in SCoTA and its Schedules play a fundamental part in creating and supporting the SCoTA market (both physical and derivative) regardless whether the contract is or is not copied by a market participant. The detailed specifications are publicly available in electronic form, and may readily be used for the business of dealing in coal, by contrast with the position of a publisher, which could not carry on its business at all without repeated copying.

Taking Recitals (A) and (B) together, no reasonable reader could doubt that the intending licensee’s purpose in entering the PLA was to obtain permission to use the Products, rather than merely the intellectual property rights in them. Furthermore, it is the use of the Products that is regulated by the terms of the Agreement, according to Recital (B), and that recital comes as near as may be to a warranty by the Licensee that its wish to use the Products is limited to their use for entering into or arranging coal trades with licensed third parties.

Moving to clause 1, the professional draftsman (Clifford Chance LLP) takes evident care to distinguish in terms of definition between the Products and the Intellectual Property Rights. The latter are not, in the definition itself, identified by reference to the Products, although on every subsequent occasion of the use of the phrase “Intellectual Property Rights” it is followed by the phrase “in the globalCOAL Products…”. Nonetheless, the distinction between the Products themselves and the Intellectual Property Rights in the Products is, as a matter of drafting, as clear as it could be.

The clause 1.1 definition of “Purpose” is that it “means the use of the globalCOAL Products as the basis for, or as an integral part of, arranging, broking or entering into a Transaction”. Again, that is naturally more apt to refer to the Products themselves. For example, it is easy to see how the SCoTA contract is used as the basis for entering into a transaction, as opposed to copyright in it.

Turning to clause 2.1, under the heading “Grant,” that which is literally granted is not a licence to use the Intellectual Property Rights, but a licence to use the Products. The grant is made by Global Coal “under its Intellectual Property Rights”, but it is not on its face a grant of them. The Intellectual Property Rights are asserted by clause 2.1 to be the basis upon which Global Coal claims to be entitled to permit (or by implication to refuse to permit) the use of the Products, and therefore, also by implication, to limit the circumstances in which the Products may be used.

Clause 2.2 makes that implication express, in the three respects in which its sub-clauses include undertakings by the Licensee to use the Products only in particular ways.

The distinction between the use of Products and use of the Intellectual Property Rights in the Products is at its clearest in clause 4.1, which provides that:

“The rights of the Licensee to use globalCOAL’s Intellectual Property Rights in the globalCOAL Products and Trade Marks are limited to the permitted use of the globalCOAL Products and Trade Marks set out in clauses 2.1 and 2.2.”

If clause 2.2 merely limited the use of the Intellectual Property Rights in the Products without restricting a use of the Products in a way which did not involve any use of the Intellectual Property Rights, the first sentence of clause 4.1 would be, at best, repetition and at worst, meaningless. Even if (as Mr Matthews QC for LCB suggested) the words “permitted use of the globalCOAL Products” is just convenient shorthand for permitted use of the Intellectual Property Rights in the globalCOAL Products, the sentence is still mere repetition.

Clause 5.2 consists of a disclaimer of liability by Global Coal for damage suffered by the Licensee or any third parties “as a result of or in connection with the Licensee’s use of globalCOAL Products or the Trade Marks”. Whatever (if anything) may be the effect of that sub-clause in limiting Global Coal’s liabilities to third parties, it would on the face of it be curious if the phrase “use of globalCOAL Products” was limited for the purpose of the disclaimer to occasions when, and only when, the Intellectual Property Rights in the Products were used. For example, liability for a loss flowing from some disastrous mis-description of a specification in a schedule to the SCoTA contract would thereby only be disclaimed by Global Coal if the contract had been copied during the making of the relevant transaction, rather than merely used as the basis for it. The presence or absence of copying would have nothing whatsoever to do with the cause of the loss.

Clause 6.2 purports to deem an acceptance of unilateral amendments of the PLA wherever the Licensee “continues to use globalCOAL Products” after expiry of the stated 20 day notice period. It is counterintuitive to think that the parties prescribed a mode of acceptance that depended not upon the outward and visible use, for example, of the SCoTA contract (in the making or brokering of a SCoTA trade) but rather the invisible trigger constituted by the copying of that contract by someone in the Licensee’s office.

The phrase “use of globalCOAL Products” is finally employed in clause 8.2, which requires the Licensee on termination immediately to cease any such use for reasons which I shall explain when addressing LCB’s interpretation. The employment of that phrase in clause 8.2 is, at first sight, a contra-indication detracting from Global Coal’s interpretation, because of its theoretically draconian consequences.

Moving away from the language, Global Coal advanced a broad purposive argument along the following lines. Both the Recitals and the definition of Purpose (when read with the definition of Transaction) identify the purpose of the PLA as permitting and encouraging trading of coal on SCoTA terms between licensed participants, and the arrangement of those trades by licensed brokers. It therefore recognised as an objective the creating of a SCoTA market peopled entirely by Global Coal Licensees. If a narrow definition of the restrictions in clause 2.2 enabled a licensed broker to arrange trades on SCoTA terms with unlicensed counterparties, then the PLA would fail to achieve its objective of being an instrument for the creation of a trading club. Since it was inherent in the defendant’s interpretation that the Products could be used to enter into, arrange or facilitate trades on SCoTA terms with non-licensed counterparties, because such activities did not necessarily involve a use of Global Coal’s Intellectual Property Rights, the clause 2.2 restrictions would in fact, rather than merely in theory, be defective for their purpose if narrowly construed.

A second limb of Global Coal’s purposive argument was that, if the clause 2.2 undertakings were limited to the use of the Intellectual Property Rights, then those undertakings would be impossible, or at best extremely difficult, to police. While it is one thing to have to ascertain whether a particular trade involving a non-licensee was or was not on SCoTA terms, it is altogether more difficult (and probably impossible without pre-action disclosure) to ascertain whether a trade on SCoTA terms was entered into or arranged in circumstances which involved, for example, a sufficient copying of the SCoTA contract to give rise to a breach of copyright.

A measure of the substantial difference in the difficulty of enforcement, as between the alternative rival constructions, is apparent from the fact that, as informally agreed, a trial of Global Coal’s case in relation to the two impugned transactions on the assumption that its interpretation of clause 2 is correct would take about two days, whereas a trial of its intellectual property infringement claims, assuming the correctness of LCB’s interpretation, would take more than a week, albeit in relation to precisely the same two transactions.

Added to these difficulties is the fact that, in the context of a market and PLA designed to operate in a uniform manner internationally, the enforcement of intellectual property rights internationally is inherently more difficult than the enforcement of a simple prohibition on any use of the Products, due to the essentially territorial nature of intellectual property law. The point is if anything reinforced by clause 10 of the PLA, which provides both for English law to govern, and for the English courts to have exclusive jurisdiction. A purely contractual restriction on the use of the Products falls naturally within that regime, whereas a restriction as to the use of Global coal’s intellectual property rights, on an international basis, does not, even if imposed by a contract.

Mr Silverleaf placed great emphasis on an ‘agreement as a whole’ submission. He said that if the restrictions in clause 2.2 were interpreted in accordance with LCB’s case, then there would be an implausible mismatch between the scope of the PLA and the scope of the contemporaneous commission agreement which formed part of the same bargain. The commission obligation arose in relation to any trade arranged on SCoTA terms, including therefore, at least in theory, a trade involving an unlicensed counterparty. If as LCB claims, the PLA regulated only the arrangement of trades in a manner which used Global Coal’s Intellectual Property Rights, then LCB would have agreed to have paid commission on trades other than those regulated and permitted by the PLA.

I am not persuaded that this argument carries any weight. It is an argument peculiar to the bespoke basis upon which LCB received a PLA and, if it had any decisive weight, it might lead to an interpretation of the PLA, as between Global Coal and LCB, different from its interpretation in the general run of the cases where it has been used. In any event, there is no commercial reason why a party should not agree, as the quid pro quo for the use of intellectual property rights, an obligation to pay commission on transactions of a particular class, whether or not some of those could be arranged without use of the rights granted.

The foundation of LCB’s case is that, as a matter of law, Global Coal’s creation of the SCoTA contract and its associated Products did not confer upon it a right absolutely to control (by the giving or withholding of licences) the use of that contract and associated Products for the purpose of coal trading on SCoTA terms, at least once the contract and in particular the detailed specifications in the Schedules ceased to constitute confidential information. All that the law conferred upon Global Coal was a right to control (to the extent permitted by law) the use of its intellectual property in those Products.

On that foundation, Mr Matthews submitted that the PLA should therefore be recognised for what, in law, it truly is, namely an intellectual property licence, nothing more or less, and that its terms, including the phrase “use of the globalCOAL Products” and all the restrictions in clauses 2.2 and 8.2 should be interpreted in the same light, that is as expressions about, and restrictions upon, the use by the Licensee of Global Coal’s Intellectual Property Rights in the Products. Thus, he submitted, the restrictions should not reasonably be understood to involve an undertaking by the Licensee, either during or after termination of the PLA, not to do that which, in law, Global Coal had no original power to prevent. As Patten J put it, the word “use” acquires a special meaning, when employed in an intellectual property context.

Mr Matthews’ submission gained significant weight from a close examination of the termination provisions in clauses 7 and 8 of the PLA. Clauses 3.1 and 7.1 provide for the PLA to continue until terminated pursuant to clause 7. The only rights of termination therein contained consist of a right for Global Coal to terminate without cause on one week’s prior written notice, and for Global Coal to terminate with immediate effect on the happening of specified events, which include breach of obligation by the Licensee, its insolvency or a challenge by the Licensee of the validity of Global Coal’s Intellectual Property Rights in the Products or Trade Marks. A right of termination by the Licensee is conspicuous by its absence.

There is nothing surprising about this if, as LCB contend, the PLA contains nothing more than a permission to use intellectual property rights, where the restrictions in clause 2 do no more in substance than limit the circumstances in which those rights can be used. The inability of the Licensee to terminate is a quite different matter if, for as long as it lasts, the PLA imposes restrictions on the Licensee to which it would not be subject if the PLA had never been entered into, as Global Coal claims. If the quid pro quo for the grant of the Intellectual Property Rights is a promise by the Licensee not to enter into, arrange or facilitate any Transaction (as defined) which it would have been entitled to do without use of those Intellectual Property Rights, then the entry into a PLA which was not terminable by the Licensee would apparently impose a potentially perpetual burden, with no liberty to the Licensee to restore the status quo ante by terminating the agreement.

Mr Silverleaf volunteered two solutions to that difficulty with Global Coal’s interpretation. First, he submitted that the court might recognise an implied right of the Licensee to terminate the PLA on reasonable notice. As to that, Mr Matthews tip-toed around the question, reluctant to commit his client to an inability to terminate if it lost on the issue of interpretation, but equally reluctant to give up a tool powerfully supportive of his case.

Mr Silverleaf’s second submission was that, whether or not the licence was terminable by the Licensee, clause 8.2 made it clear that, upon termination, a former Licensee would be permanently disabled from making any use at all of the globalCOAL Products and Trade Marks, whether for the making, arranging or facilitation of Transactions or otherwise.

In my judgment this interpretation of clause 8.2 adds to, rather than solves, Global Coal’s problems. It could, for example, mean that a former Licensee would be disabled from making a bespoke contract for a physical coal trade which incorporated, by reference, one or more of the publicly available specifications in the SCoTA Schedule. It could also have the effect that Global Coal could, by terminating a licence granted to one large coal trader, without cause, effectively prohibit a continuing Licensee from transacting business on SCoTA terms with that former counterparty with whom it was accustomed to doing regular business, for many years, on a very large scale, unless perhaps they reconstructed their accustomed terms of trading onto a bespoke basis which made no use at all of any part of the SCoTA specifications. Similar concerns may have discouraged the Court of Appeal in the ICAP case from treating Global Coal’s interpretation as more than arguable: see per Lloyd LJ at paragraphs 24 and 30.

Clause 8.2 would not, of course, have the draconian effect which I have just described if the phrase “cease any use of globalCOAL Products and the Trade Marks” was interpreted as meaning cease any use of the Intellectual Property Rights in them. But that would lead to a differential interpretation of a phrase in clause 8.2 from the meaning of substantially the same phrase in clause 2.2, if Global Coal’s interpretation of clause 2.2 is correct.

There is in my judgment no entirely satisfactory answer to the problems thrown up by the termination provisions in clauses 7 and 8 of the PLA, consistent with Global Coal’s interpretation of clause 2. In relation to the apparent non-terminability of the PLA by the Licensee, while the court will readily imply a provision for termination on reasonable notice into an agreement which is altogether silent about duration or termination, it is less ready to do so where, as here, both duration and termination rights are set out in express terms. As for clause 8.2, giving the concept of prohibited use a restricted meaning destroys what at first sight appears to be a consistent and uniform employment of the concept of the use of the Products and the Trade Marks throughout the PLA.

In my judgment, on balance, the considerations favourable to Global Coal’s interpretation outweigh those which point the other way. My reasons follow. First and foremost, I consider that the PLA displays in clear terms a mutual assumption by the parties to it that Global Coal did in fact have the right to control (by permission or prohibition) any use of the Products, rather than merely a use which, but for permission, would have infringed Global Coal’s Intellectual Property Rights in them. While it is true that clause 2.1 identifies Global Coal’s Intellectual Property Rights in the Products as the basis for its assertion of an unfettered right to control their use, that identification comes nowhere near making the PLA as a whole, or clause 2 in particular, an agreement merely about the use of those rights, rather than the use of the Products themselves.

It was, or became, common ground between counsel that, viewed as a matter of strict law, the sum total of Global Coal’s Intellectual Property Rights in the Products did not confer upon it complete control over the use of the Products, and in particular the use of all or part of the SCoTA contract as the basis for trading in coal, since it is accepted that neither the contract itself nor, a fortiori, the specifications in its Schedules are confidential material and that, at least in theory, a physical coal contract may be made wholly or partly on SCoTA terms without any breach of copyright, either by the relevant traders or the broker.

There was however a lively disagreement between the parties on the extent to which a theoretical ability to use the Products without a breach of Global Coal’s Intellectual Property Rights in them could be exercised in practice in the real commercial world constituted by what I have labelled the SCoTA market. In particular, the question whether LCB succeeded in doing so in relation to the two trades in issue in these proceedings is the subject of seriously contested issues which have yet to be determined.

It is however reasonably clear that it would be difficult for brokers or traders to participate in the SCoTA market without a PLA, or to deal with unlicensed counterparties outside the permission granted by the PLA, without infringing Global Coal’s Intellectual Property Rights, unless they established and rigorously adhered to administrative disciplines sufficient to ensure, for example, that no accidental breach of copyright by copying relevant SCoTA contracts for record purposes occurred.

Once it is appreciated that for a trader or broker to participate in the SCoTA market either without a PLA, or outside its protection, by dealing with unlicensed counterparties, would be to sail very close to the wind in terms of avoiding infringement of Global Coal’s intellectual property rights, it comes readily apparent why, contrary to the strict legal position, Licensees may have been content to agree, by way of contractual convention, that Global Coal did indeed enjoy complete control over the use of its Products, in practical commercial terms, by virtue of its Intellectual Property Rights in them. That contractual convention is in my judgment precisely what the PLA contains.

Once it is appreciated that the PLA contains that contractual convention, most of the difficulties of interpretation evaporate. It is sufficient to give two examples. First, the absence of a Licensee’s right of termination no longer jars with the restrictions undertaken in clause 2, if the parties are in practical commercial agreement that the Products cannot safely be used by traders or brokers in the SCoTA market without permission. The simple way out of the agreement for the Licensee is to cease any further use of the Products.

Secondly, clause 8.2 can then be interpreted consistently with clause 2, as applying to the use of the Products rather than merely to the Intellectual Property Rights in them, if the parties have agreed by way of convention that the existence of those rights gives Global Coal a de facto ability to exercise complete control over the use of the Products. If it is a matter of agreement that such practical control exists, there is nothing commercially surprising about a promise by the Licensee never to use the Products again, once his licence to do so has been terminated.

The effect of the absence of a termination right for the Licensee (if, which I need not decide, none need be implied) and, in any event, the effect of clause 8.2, is that the contractual convention that Global Coal has complete control over the use of the Products is permanent, as between parties to the PLA, rather than merely enduring while the agreement subsists. It means for example that, pursuant to clause 6.2, Global Coal can vary the terms upon which its Products are used by Licensees in any way it wishes, the dissatisfied Licensee’s express remedy merely being that it ceases thereafter to use the Products.

It may be that to construe the PLA in that way gives rise to potentially serious issues of abuse of dominant position under Article 82, under the Competition Act 1998, and even of restraint of trade at common law. The first two of those types of issue are hotly contested in these proceedings, and remain to be determined. Nonetheless, counsel were agreed that the possible implications of those issues should not be taken into account by way of interpretation of the PLA, in the way in which, for example, a covenant in restraint of trade is sometimes narrowly construed on the principle ut res magis valeat quam pereat. In short, counsel agreed that the potential interaction between interpretation and those other issues should in the present case be treated as a one-way street. Interpretation may affect their outcome, but not the other way round.

I am fortified in concluding in favour of Global Coal’s interpretation by two additional considerations. The first is that it flows more naturally from the language of the PLA than does LCB’s interpretation. By that I mean not an old fashioned construction based on grammars and dictionaries, but a reasonable interpretation of the meaning of the words, suitably informed as to the background, and mindful of Lord Hoffmann’s observation that:

“We do not easily accept that people have made linguistic mistakes, particularly in formal documents.”

This is not, for the reasons which I have given, a case in which the natural interpretation of the language leads to a result which the parties could not have intended.

The second consideration is that relating to simplicity of enforcement. The clear intent of the restrictions in clause 2 of the PLA was that a licensed trader or broker should not be at liberty to make, facilitate or arrange a coal trade on SCoTA terms involving an unlicensed counterparty. In most cases, the question whether the counterparties were or were not licensed, and whether the trade was on SCoTA terms, would be easy to establish, and apparent from surviving documents, including tape recordings of transactions made orally and computer records for transactions made on screen. In sharp contrast, the question whether any trade on SCoTA terms with an unlicensed counterparty involved an infringement of Global Coal’s Intellectual Property Rights in the Products would be a complicated, expensive and time-consuming matter to resolve, as is evident from Global Coal’s pleadings of its intellectual property case in the present litigation. There may of course be exceptional cases where the parties are alleged to have produced documents designed to mask the reality, for example by describing a trade on SCoTA terms as having been made on “mutually agreed terms”. That is indeed an issue still to be resolved in these proceedings. But that does not significantly detract from the obvious difficulties and uncertainties of enforcement arising from LCB’s interpretation, or from a reasonable assumption that commercial parties contracting in good faith with each other would prefer simplicity rather than complexity and expense, in the event that the performance of their bargain gave rise to subsequent dispute.

Global Coal therefore succeeds on this issue of interpretation of the PLA. I will hear submissions as to an appropriate form of order to reflect that decision, and as to case management directions for the further conduct of this litigation.