Jones v IOS (RUK) Ltd & Anor

No less than three interesting issues of law fall to be considered in the course of the trial of this witness action: (1) The nature of the interest which a claimant must establish in “confidential information” before he can properly maintain a claim (whether in contract or in equity) for breach of confidence (see chapter 4). (2) The interplay between the admissibility of a claim in contract for damages for the loss of a chance and the “minimum performance” or “least onerous obligation” principle whereby an injured contracting party is only entitled to be compensated for the loss of benefits which he would have been legally entitled to claim if his contract had been performed (see chapter 7). (3) The availability of a claim for Wrotham Park damages (Footnote: ¹) in circumstances where a conventional approach to the assessment of damages would result in the award of no more than a purely nominal sum, and the defendant asserts that the relevant breach of contract is incidental or trivial, and has operated to confer upon him no benefit or advantage of any real value (see chapter 8).

This judgment is divided into nine chapters as follows: (1) Introduction (2) The issues in the case (3) The evidence (4) The Confidentiality Agreement: its meaning and effect (5) The alleged beaches in relation to the 2003 invitation to tender (6) The alleged breaches in relation to the 2007 invitation to tender and its implementation in 2008 (7) The loss of chance claim (8) Wrotham Park damages (9) Conclusion and Postscript. I should emphasise, however, that although my judgment is structured in this way for convenience of analysis and exposition, the contents of each individual chapter have informed my judgment as a whole.

This is the trial of a Part 7 claim (issued on 29 July 2009, and allocated to the multi-track) for damages for breach of a Confidentiality Agreement in the form of a letter dated 5 February 1999 written on the headed notepaper of the first defendant (then called Ricoh UK Limited) and addressed to a company described as CMP Group Purchasing Limited, whose correct name was in fact CMP Group Limited (“CMP”). There is an alternative claim for damages for breach of confidence. CMP’s loss is said to range from some £5.5 million to some £28.7 million. The claimant, Mr Jones, is represented by Mark Vanhegan QC, leading Mr David Wilkinson. The defendants are represented by Mr Charles Hollander QC, leading Ms Victoria Wakefield.

Mr Jones established CMP in 1994 and he was its principal shareholder and managing director. CMP acted as an intermediary, offering its business and corporate clients the opportunity of making significant costs savings through the more efficient delivery and management of their photocopying, printing and scanning requirements as a result of the expertise which CMP had developed in the selection, procurement, installation, servicing and use of multifunctional devices (MFDs) supplied by third parties, notably the first defendant. On acquiring a new client, CMP would ascertain how much it had been paying for devices up to that point, and it would then charge a “device commission”, equivalent to 50% of any costs savings achieved by the client against that benchmark. CMP’s other revenue streams comprised a “service commission” on every page produced by each device; a “finance commission” from the finance company where the client chose to rent a device (typically for 3 years) rather than purchasing it outright; and a “residual rental income” (typically equivalent to 50% of the original rental charge) from any device which a client chose to retain after the initial 3-year finance term. CMP acquired as clients a number of large companies including (most significantly for the present case) ADtranz, a global rail systems and signalling manufacturer and service provider, which, in 2000, was acquired by the Canadian aerospace and transportation group, Bombardier, becoming its transportation arm, known as Bombardier Transportation (Bombardier). Mr Jones took an assignment of CMP’s causes of action against the first defendant on 30 April 2009; and shortly thereafter (on 8 June 2009) CMP entered into members’ voluntary liquidation.

The first and second defendants are part of a worldwide network of some 235 companies providing printing, photocopying and scanning hardware, and related services, and forming part of a group headed by the major Japanese electronics manufacturer, Ricoh Company, Limited. Pursuant to a sale and purchase agreement dated 31 March 2010 all of the first defendant’s assets and liabilities (including the present claim) were transferred to another group company, the second defendant (then called Ikon Office Solutions Plc). On the following day, the first defendant changed its name from Ricoh UK Limited to IOS (RUK) Limited, and, at the same time, the second defendant assumed its present name of Ricoh UK Limited. The second defendant was joined to the proceedings by an Order of Master Moncaster dated 5 August 2010. Although this was not apparently appreciated by the parties’ legal representatives until late in the trial, the first defendant entered into members’ voluntary liquidation on 29 December 2011. It is agreed that, for the purposes of this litigation, nothing turns on the separate corporate identities of the two defendants, and that the second defendant will meet any award of damages (and any order for costs) which may be made against the first defendant. For simplicity, I shall treat the two defendants as singular and refer to them together simply as “Ricoh UK”. References to “Ricoh” alone are to be treated as compendious references to any relevant company within the Ricoh group.

Following the hearing of an application by the first defendant for summary judgment on 28 and 29 April 2010, Roth J handed down a reserved judgment on 14 July 2010 which bears the neutral citation number [2010] EWHC 1743 (Ch). Roth J held that the no-contact restriction contained within clause 7 of the Confidentiality Agreement was void and unenforceable as it infringed the prohibition against anti-competitive agreements in Article 101 of the Treaty on the Functioning of the European Union (formerly article 81 EU); and he granted summary judgment for the first defendant on that part of the claim. He also held that a proposed claim for an account of profits was not sustainable in the present case. But the judge went on to dismiss an application by the first defendant for summary judgment on the claimant’s other heads of claim. There has been no appeal by either party from any part of Roth J’s judgment. That judgment contains (at paragraphs [6]-[11]) a useful summary of the background to the relationship between CMP and Ricoh UK (referred to by Roth J as “Ricoh”), and of the principal terms of the trading and confidentiality agreements into which they entered, which, for convenience, I reproduce here:

“6.

CMP’s relationship with Ricoh began in late 1994 and the first supply by Ricoh of devices arranged by CMP was in January 1995. Ricoh rapidly became the preferred manufacturer recommended or chosen by CMP. Over 90% of the devices that CMP ever recommended for clients were Ricoh devices.

7.

In 1998 CMP sent Ricoh an invitation to tender for the supply of devices to its clients. Mr Jones says that the main aim of the tender was to improve on the discount against the manufacturer’s recommended retail price that Ricoh was prepared to offer to CMP’s clients (which would of course benefit CMP through the 50% saving arrangement: para 3 above). Ricoh responded with a tender dated 12 August 1998 and it is common ground that Ricoh and CMP then entered into a trading agreement to govern the relations between them (‘the Trading Agreement’). The Trading Agreement was of unlimited duration, terminable by either party on 90 days’ notice. Clauses 3-4 of the Trading Agreement provide:

‘3. The duties of Ricoh:

(i)

To provide equipment as required by the customer orders of CMP, see Clause 4(i) at approved prices (see Schedule A of this Agreement). All equipment provided to customers of CMP under the terms of this Agreement shall be new equipment.

(ii)

To deliver said equipment within 14 working days of receipt of order.

(iii)

To install, train users and service and maintain said equipment in accordance with the Terms and Conditions of approved Service Agreements (see Schedules B and C of this Agreement) at approved service charges (see Schedule D of this Agreement).

(iv)

To provide management and billing information data to CMP as required (see Schedules F, G and I of this Agreement).

4.

The duties of CMP:

(i)

To obtain orders for equipment from its customers at prices approved by Ricoh (see Schedule A of this Agreement). Orders will be placed on official documentation of CMP and orders for Ricoh equipment will be obtained by CMP from its customers where Ricoh equipment is suitable and meets the needs and requirements of CMP’s customers. There is no obligation under this Agreement for CMP to recommend that its customers acquire Ricoh equipment.

(ii)

To obtain from its customers at the time that equipment is acquired authorised Service Agreements under approved terms and conditions and at approved service charges (see Schedules B, C, D and E of this Agreement).’

8.

Although Ricoh asserts that it would sell its equipment to CMP, either directly or to a finance company at CMP’s request, and that CMP would resell the devices to its clients or arrange for them to be leased by the finance company, such that Ricoh had no direct contractual relationship with CMP’s clients, Mr Jones is emphatic that this is not correct and that the purchases were made, albeit on CMP’s advice and at its instigation, direct from Ricoh by CMP’s clients. Indeed, he explains that ‘CMP’s business model was based on its independence and the fact that it did not buy or sell devices.’ Mr Jones says that the only exception was where the client leased the devices, in which case after the final payment to the leasing company, ownership of the device would be transferred to CMP for a nominal sum; CMP would then either continue renting the devices in its own name to the client or sell them to second-hand dealers. However, in every case, the contracts for servicing the devices were between the clients and Ricoh.

9.

Mr Jones’ account of the contractual arrangements appears to be borne out by clauses 5 and 6(i) of the Trading Agreement, which provide:

‘5. Any orders for equipment or Service Agreement obtained by CMP from its customers under the terms of this Agreement may be rejected by Ricoh on the grounds of credit rating, pricing or conflicts of interest.

6.

Payments:

(i)

Equipment orders

At the time orders for equipment are obtained by CMP from its customers CMP will provide Ricoh either:

(a)

An official purchase order on CMP documentation from CMP’s customer against which Ricoh may invoice that customer for both Ricoh’s selling price of equipment to customers of CMP (see Schedule A of this Agreement) and fees payable to CMP.

or

(b)

An official purchase order from a leasing company against which Ricoh may invoice that leasing company for Ricoh’s selling price of equipment to customers of CMP (see Schedule A of this Agreement).

When equipment orders are obtained by CMP from its customers and equipment is to be acquired on a cash purchase basis as per (a) above the order documentation will be submitted with an invoice from CMP to Ricoh. The invoices will reflect an agreed and stated amount authorised and acknowledged by CMP’s customer as being the difference between Ricoh’s selling price to customers of CMP (see Schedule A of this Agreement) and the net total amount payable by CMP’s customers as per CMP’s official documentation.’

10.

Mr Jones states that he became increasingly aware of the importance to CMP of the control of the client relationship and that CMP was vulnerable to being cut out of that relationship by Ricoh, especially as CMP’s business was not spread between a range of suppliers. Mr Jones therefore agreed with Mr Marcus I’Anson, Ricoh’s then sales director, that their companies should enter into a formal confidentiality agreement. Accordingly, a letter agreement dated 5 February 1999 was concluded and signed by both parties (‘the Confidentiality Agreement’), apparently following an initial draft prepared by CMP’s then solicitors. The Confidentiality Agreement is relatively short, and since this claim is based on alleged breaches of some of its terms it is necessary to quote from it fairly fully. It is written on the notepaper of Ricoh, addressed to CMP, and reads insofar as material:

‘We write to confirm that we requested you to disclose to us Confidential Information (as defined below) in relation to [CMP’s] system for the acquisition of photocopying users and photocopying equipment acquirers (‘the System’).

For the purpose of this letter ‘Confidential Information’ means documents and information of whatever nature and in whatever form relating to [CMP] or its businesses, business practices, finances, affairs, dealings, clients, suppliers, agents or employees disclosed or otherwise received by any Relevant Person whether before or after the date of this letter directly or indirectly by or from [CMP] or any of its employees, agents or professional advisers but excluding information which at the time of being disclosed or received is within the public domain or which comes into the public domain otherwise than as a result of a breach of the undertakings or other obligations set out or referred to in this letter.

‘Relevant Person’ means and includes each of us and any company which is or which is associated with:

(i)

Ricoh (U.K.) Limited and in each case any of their employees, agents or professional advisors.

…

In consideration of your disclosing Confidential Information to us we hereby undertake to you:

1.

That we will receive the Confidential Information under a duty of confidentiality to you and such information will be held in the strictest of confidence (subject only to the terms of this letter);

2.

That we will use and procure that the Confidential Information is used only for the purpose of evaluating the purchasing terms available to [CMP] and with a view to entering into an agency agreement with you.

3.

That we will not (except as expressly stated in paragraph 2 above) use the Confidential Information for our own benefit and will procure that it is not used for the benefit of any other person (including without limitation any Relevant Person);

4.

That we will not and will procure that no Relevant Person will without your prior written consent at any time disclose or permit to be disclosed any of the Confidential Information to any other person whatsoever except:

(i)

to those of our employees who are required in the course of their duties to receive the same for the purposes of evaluating and/or understanding the purchasing terms available to [CMP].

(ii)

to those of our professional advisors requiring the Confidential Information for the same purpose.

on the basis that such employees and advisors are made aware of the provisions of this confidentiality undertaking.

….

7.

That no approach or contact direct or indirect in connection with or during our discussions or whilst any Confidential Information remains in the possession or under the control of any Relevant Person shall be initiated, accepted or made by or on behalf of any Relevant Person to or with any employee, client or supplier of yours or any government body or regulatory or other authority or to or with any other person who to our knowledge has any actual prospective connection with you without your prior written consent.’

11.

Notwithstanding the reference to an agency agreement in clause 2, no such further agreement was concluded and the Trading Agreement to which I have referred continued to apply.”

I should refer to one additional provision of the Confidentiality Agreement, clause 5, which provides as follows:

“5.

On your so demanding at any time we will forthwith procure the return to you of all the documents and papers comprising the Confidential Information and all copies thereof and destroy or procure the destruction of all documents and records including computerised records prepared from or using the Confidential Information.”

By 2003, Bombardier had developed an excellent working relationship with CMP in the United Kingdom (and, through CMP, with Ricoh UK); and when Bombardier decided to issue an invitation to tender for MFDs across Bombardier’s European sites, initially in the UK, Sweden and Germany, but with the intention ultimately of expanding the scope of the procurement exercise to Bombardier’s other sites in Europe and worldwide, the formal invitation to tender (sent out on the headed note-paper of Bombardier Sweden on 16 September 2003 at F3/614) was addressed to (amongst a small number of other potential suppliers) both CMP and Ricoh International Accounts (RIA), which co-ordinated the negotiation of major European-wide and global contracts for companies within the Ricoh Group (which, in the UK at that time included not only Ricoh UK but also NRG and Lanier). The deadline for the return of responses was to be 15 October 2003. I accept the evidence of Mrs Cartledge (of Bombardier) that its invitation to tender was “very, very vague and generic” and “was poor” (T3/346-349). Initially, both CMP and Bombardier envisaged that CMP would be submitting a joint response with RIA, based upon the arrangements which had been in place for the UK; but, in the event, RIA submitted its own individual response (at F3/628), which Mrs Cartledge described as “inefficient” (T3/350), leaving CMP to prepare a response of its own (at F3/646), based upon prices which CMP thought it was likely to achieve from Ricoh. Thereafter, CMP sought, unsuccessfully, to persuade Ricoh to reconsider its decision and to join in a tender with CMP; but Ricoh’s response (as communicated in an email dated 18 November 2003 from Mr Paul Bryan, a sales director at Ricoh UK, to the claimant at F3/740) was to present CMP with two options: either RIA should conduct the bid, using CMP for the UK procurement only; or CMP could present its own independent bid, but recommending only Ricoh devices, offering them at prices set by Ricoh. Neither option was acceptable to the claimant.

In due course, on 3 December 2003, both CMP and RIA were “down-selected” by Bombardier as the two preferred bidders. Due to its difficulties in sourcing the required MFDs, on 2 February 2004 the claimant proposed withdrawing from the tender process (at F4/1001); but on the following day (at F4/1003) Bombardier allowed CMP further time to try to source an alternative supplier given CMP’s expressed “proven performance” in delivering costs savings into Bombardier. Ultimately, CMP submitted a joint bid with the UK arm of Toshiba, Electronic Imaging Solutions Limited (EIS). The tender process, involving both RIA and CMP/Toshiba, became protracted due to the involvement of IBM as Bombardier’s global procurement agent; but, ultimately, CMP/Toshiba emerged as the successful bidder in preference to RIA. Ultimately, on 9 June 2005, EIS and Bombardier Transportation GmbH entered into a Master Print Services Agreement (theMPSA, at F7/2039); and on 1 August 2005, CMP entered into a Commission Agreement with EIS (at F7/2092). In the event, the MPSA was never implemented: no MFDs were ever ordered from EIS, and the relations between it (and CMP) and Bombardier rapidly deteriorated. I am satisfied on the evidence that this was not attributable solely to technical issues concerning the compatibility of Toshiba’s devices with Bombardier’s own systems, but was also because there were irresolvable issues over pricing, and a lack of engagement on the part of Bombardier entities in both Sweden and Germany. By December 2006, Bombardier had made it clear that it considered the MPSA to be without force and effect. This led to litigation between CMP and EIS under the Commission Agreement, which was ultimately compromised (in February 2009) by the payment of a (confidential) sum of money to CMP (for which credit is to be given against any award of damages in this litigation). It also led, in July 2007, to Bombardier Transportation GmbH issuing a further invitation to tender for the supply of MFDs to the whole Bombardier group on a world-wide basis. After December 2006, CMP was, according to the claimant (T2/279), no longer pitching for new business, and it was not involved in this 2007 invitation to tender, but Ricoh Global Services Europe (RGSE) (the new name for RIA, adopted in 2005) was; and it was named as the successful tenderer early in October 2007 (although it was required to submit a revised pricing proposal). A letter of intent was signed on 30 November 2007 (F11/3126-8); but it was not until 19 May 2008 that Ricoh Europe Plc signed an International Master Supply Agreement with Bombardier Transportation GmbH (at F14/4151), with an effective commencement date of 1 May 2008. At about the same time, Bombardier and RGSE took the decision to replace all the existing CMP/Ricoh MFDs located at Bombardier’s 16 sites throughout the UK with suitable alternative devices, on a “like for like” basis, by the end of June 2008 in order to avoid Bombardier having to pay any further charges to CMP after that date.

In summary, the claimant’s case is that Ricoh UK breached the Confidentiality Agreement by disclosing and misusing CMP’s confidential information in relation to (1) the 2003 invitation to tender, (2) the 2007 invitation to tender and (3) the implementation of Ricoh’s agreement with Bombardier by the installation of MFDs at its sites within the UK in 2008. Alternatively, the claimant advances a claim for breach of confidence.

Specifically, in relation to the 2003 invitation to tender, the claimant complains of (1) the (acknowledged) disclosure by Mr Robert Hoskins of Ricoh UK (via Mr Ian Clark) to RIA in February 2003 of what has come to be referred to as “the Hoskins spreadsheet” (F2/407-8), identifying the model, installation date, location, and contact details of, and for, all CMP/Ricoh UK devices installed at Bombardier sites in the UK, and its subsequent (disputed) misuse by RIA in selecting MFDs for the purposes of RIA’s tender bid to Bombardier in October 2003; and (2) the (disputed) misuse of CMP’s confidential pricing information when, on 16 June 2004, Mr Ruud van Galen (of RIA) submitted a revised proposal to Bombardier (F6/1732), offering a rebate (or discount) of 50% in the fourth year on the device rental prices applicable to a 3-year term. It is said that had Ricoh UK not misused this confidential information (or appreciated that it was not entitled to use it), RIA would have bid jointly with CMP in response to Bombardier’s 2003 invitation to tender; and that such a joint bid would have been successful. The claimant therefore claims damages for the “loss of the chance” of a successful bid (in accordance with the Court of Appeal’s decision in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 (Allied Maples)), calculated by reference to the loss of profits which CMP would have made from such a successful bid. Alternatively, the claimant claims Wrotham Park damages, to be assessed by reference to the price which Ricoh UK ought reasonably to have paid in order to be released from its obligations under the Confidentiality Agreement, thereby freeing it to use the information which it disclosed for the purpose of enabling RIA to use it in its response to the 2003 invitation to tender.

In relation to the successful 2007 invitation to tender and its implementation in 2008, the claimant relies upon the alleged (1) disclosure by Ricoh UK to RGSE in or about October 2007 of confidential CMP service price information relating to CMP/Ricoh devices installed at Bombardier’s sites in the UK, in particular that Ricoh UK was currently charging Bombardier 0.88 for an AF2045 (F11/3081); (2) disclosure by Ms Lynda Davenport (of Ricoh UK) to Mr Stuart Hammond on 18 January 2008 of what has come to be referred to as the “Davenport Spreadsheet” (F11/3232-5), containing details of the model, delivery, and installation dates of all devices installed at all of CMP’s customers in the UK (including, but not limited to Bombardier), and Mr Hammond’s subsequent misuse of that confidential information, for and on behalf of Ricoh Europe Plc, to assist in the selection and pricing of MFDs to be supplied to Bombardier in the UK in response to the 2007 invitation to tender, and to replace the existing CMP/Ricoh devices at Bombardier’s sites in the UK; (3) disclosure by Mr Graham Wilson (of Ricoh UK) to Mr Hammond on 19 May 2008 of what has come to be referred to as the “Wilson Spreadsheet” (F14/4095-4102), containing full details of the model, installation and expiry dates, location, servicing dealer, service pricing and usage volumes of all devices installed at all of CMP’s customers in the UK (including, but not limited to Bombardier) for the purpose of replacing the existing CMP/Ricoh devices at Bombardier’s sites in the UK; and (4) disclosure by Mr Hammond to RGSE, at or about the beginning of June 2008, of CMP pricing information for its existing MFDs at Bombardier sites in the UK, and particularly Derby. The claimant claims that damages for all of these alleged breaches should be assessed on a Wrotham Park basis.

In the course of his closing submissions, Mr Vanhegan sought to rely upon two further alleged breaches of the Confidentiality Agreement or breaches of confidence. The first related to the alleged misuse of the Hoskins spreadsheet by Ricoh Belgium in responding to a national tender invitation by Bombardier in Belgium in or about September 2003. This was said by Mr Vanhegan in closing (at T8/1215) not to be “relevant to liability”, but to be relevant to the value of the Wrotham Park claim for damages. The second arose from evidence given by Mr Koelmel when he was questioned (at T6/941-8) about a request for pricing information (F9/2568) submitted by RGSE to various European operating companies (including Ricoh UK) in December 2006. Neither of these alleged breaches was pleaded, or even adverted to, prior to the hearing, or during the course of the evidence; they were not the subject of any relevant disclosure; nor were they the subject of any full or proper investigation prior to, or during the course of, the trial. I am satisfied that Ricoh UK was not put on notice of them, and has had no proper opportunity to address them. They do not feature in the seven alleged instances of misuse which Mr Hollander extracted from Schedule 5 to the re-re-amended particulars of claim (as set out at paragraph 26 of his opening skeleton argument, and reproduced at paragraph 24 of his written closing). In my judgment, it would be unfair, and unjust, to Ricoh UK, and contrary to the overriding objective, for me to make any findings about these new allegations during the course of this judgment. Indeed, to do so would amount to an irregularity in the proceedings before me.

As it was presented at trial, Ricoh UK’s case can be summarised as follows: First, in relation to the Confidentiality Agreement, this is said to be unenforceable, since the remainder of the agreement cannot be severed from the no-contact restriction contained in Clause 7, which has been held by Roth J to be void and unenforceable as a matter of EU competition law. If it is held to be enforceable, the Confidentiality Agreement should be construed as applying (1) only to genuinely confidential information, (2) only to CMP’s confidential information, and (3) only to information disclosed by CMP to Ricoh. If the Confidentiality Agreement is held to be unenforceable, the claim in equity only applies to information which is both genuinely confidential, and which is also CMP’s information.

Secondly, in relation to the 2003 invitation to tender, whilst there was disclosure of the Hoskins spreadsheet in February 2003, it did not contain any CMP confidential information, and no use was made of any confidential information. As regards the proposal made in June 2004 of a 50% discount in the fourth year on the device rental prices applicable to a 3-year term, the concept of a 50% discount was not CMP’s confidential information since it was common practice in the market. Mr van Galen’s proposal did not follow from any disclosure made to RIA by Ricoh UK; and even if it had, such disclosure was not the source of the proposal. Generally, it is said that even if liability were to be established, damages would be nominal. Notwithstanding the decision of Roth J on the summary judgment application, the claim for damages for the loss of a chance is said to be impermissible as a matter of law, on a true analysis of the Court of Appeal’s decision in Durham Tees Valley Airport Ltd v BMI Baby Ltd [2010] EWCA Civ 485, [2011] 1 All ER (Comm) 731 (BMI Baby)and a proper application of the decision of the majority of the Court of Appeal in Lavarack v Woods of Colchester Ltd [1967] 1 QB 278 (Lavarack). In any event, the claim for the loss of a chance is not made out on the facts because (1) the consequence of RIA being unable to use the relevant information would not have been that it would have bid with CMP, but that it would have bid alone (as it did do); (2) CMP would not have bid with RIA, but would have rejected RIA’s terms (as it in fact did do), and mutually acceptable terms would not have been found; and (3) even if CMP and RIA had tendered together on mutually acceptable terms and won (which would not have happened), it is questionable whether any deal with Bombardier would have been successfully implemented. In any event, the damages referable to any “lost chance” would not have exceeded the profits (totalling in excess of £1.8 million: see paragraph 5.11 and Table 5.1 of Ms Gutteridge’s report, as subsequently amended) in fact made by CMP from the devices installed by CMP which remained at Bombardier’s sites in the UK after the assumed date of the hypothetical implementation of any successful joint CMP/RIA bid, and after giving credit for the net recovery achieved by CMP in its litigation with EIS. Any Wrotham Park damages, if they were to be awarded at all, would have been purely nominal.

Thirdly, in relation to the successful 2007 invitation to tender and its implementation in 2008, it is said that none of the information in question was CMP’s confidential information; none of it went beyond Ricoh UK; no (or only marginal) use was made of it; and even if liability were established, any damages would be either nominal or minimal (and not exceeding £2,000).

At paragraph 64 of the claimant’s closing written submissions Mr Vanhegan identified the following key issues of fact to be determined by the court:

The trial lasted for 8 court days, beginning (with a half day’s opening) on Monday 16 January and concluding (with a day’s closing speeches) on Friday 27 January 2012. (The court did not sit on Wednesday 25 and Thursday 26 January to enable the parties’ advocates to prepare written closing submissions.) The contemporaneous documentation occupied no less than 21 lever-arch files (F1 to F21), extending to well over 6,000 pages, with a further 440 pages of solicitors’ correspondence (in Bundles G1 and G2). There was a daily transcript of proceedings, which I have read in its entirety in the course of preparing this reserved judgment (and in conjunction with the parties’ written and oral closing submissions).

For the claimant, I heard live evidence from the following six witnesses: (1) The claimant: He had made no less than seven witness statements. He gave evidence in support of the claim generally for a little over 7 hours, beginning on the afternoon of Day 1 and continuing until the morning of Day 3 (T1/74-T3/319). (2) Mrs Angela Cartledge: She was formerly the UK Non-Production Requirement (NPR) Procurement Manager for Bombardier Transportation. She had made four witness statements. She gave evidence about the nature of the relationship between CMP, Ricoh and Bombardier in the period up to and including the 2003 invitation to tender for a little over an hour on the morning of Day 3 (T3/320-366). (3) Mrs Karen Neame: She is the claimant’s elder sister, and is a qualified accountant and the former Finance Director of CMP. At the time she gave evidence, for about 20 minutes on the morning of Day 3 (T3/367-379), she had made one witness statement. She produced a second witness statement at the end of the trial in response to two documents (X2 and X3) which had been handed up by Ricoh UK in the course of the trial. Her evidence was primarily directed to financial matters relevant to the issue of loss. (4) Mr Mark Garius: He was formerly the Managing Director of a group of Toshiba companies in the UK of which EIS formed part. He is also a director and minority shareholder of a company of which Mr Jones is also a director and shareholder. Mr Garius had made three witness statements; and he gave evidence for about 40 minutes on the afternoon of Day 3 (T3/382-405), addressed principally to CMP’s joint bid with EIS in response to the 2003 invitation to tender and the perceived value of CMP’s confidential information. (5) Mr Marcus I’Anson: He was the former Sales Director of Ricoh UK. He had made one witness statement for the purposes of the summary judgment application; and he gave evidence for less than 10 minutes on the morning of Day 5 (T5/633-637), directed to the business relationship between CMP and Ricoh UK before 2003. (6) Mr James Duckenfield: He was formerly a Business Unit Manager for Ricoh UK, where he had remained as a consultant for 3 months between 1 February and 1 May 2003. He had made one witness statement; and he gave evidence for about 20 minutes on the morning of Day 5 (T5/662-673) about the relationship between CMP, Ricoh UK and Bombardier, the nature of CMP’s confidential information, and a presentation that was given to Bombardier’s NPR procurement team at a meeting he attended with Mr Jones in Berlin on 13 May 2003. I also received in evidence, without their attendance at court, a witness statement from Mr Jeffrey Bailey, a computer consultant who had designed the CMP database; and an expert chartered accountant’s report from Ms Elizabeth Gutteridge (of Deloitte LLP) dated 28 October 2011, as supplemented by further information in the form of letters dated 17 November 2011 and 6 January 2011 [sic].

For Ricoh UK, I heard live evidence from the following eleven witnesses: (1) Mr Maurice Beelen: He was a sales manager for RIA, based in Holland, at the time of (and prior to) the 2003 invitation to tender. He had made two witness statements. He gave evidence about the 2003 invitation to tender for a little over 5 hours, spread over Days 3 to 5 (T3/407-461, T4/466-549, T4/618-631, & T5/638-661), and interrupted by the evidence of Mr Ruud van Galen on the early afternoon of Day 4 and Mr Marcus I’Anson on the morning of Day 5. (2) Mr Ruud van Galen: He was employed as a business analyst by RIA, also based in Holland, and he was responsible for pricing the 2003 invitation to tender. He had ceased to work for RIA (or any Ricoh Group company) in May 2006. He had made one witness statement; and he gave evidence for just over 2 hours on the afternoon of Day 4 (T4/550-617). (3) Mr Ian Clark: He was originally employed in the UK by NRG Group UK Limited (NRG)as a National Accounts Manager but by 2002 he was working for RIA, acting as the co-ordinator for all European and global contracts involving the UK. He had made two witness statements; and he gave evidence for just over 3 hours on the morning and afternoon of Day 5 (T5/674-785). (4) Mr Gareth Pearce:He was a print site audit consultant employed by Ricoh UK who was involved in the preparations for the deployment of Ricoh UK’s MFDs at Bombardier’s sites in the UK between about February and June 2008. He had made two witness statements; and he gave evidence for about 1 ½ hours on the afternoon of Day 5(T5/786-833). (5) Mr Allan Rollings: He had worked for Ricoh UK in sales management, and he gave evidence primarily about its relationship with CMP. He had made one witness statement; and he gave evidence for just over an hour on the morning of Day 6 (T6/844-887). (6) Mr David Platt: He is a commercial director at RGSE and his single witness statement was directed to answering the expert report of Ms Gutteridge, challenging the factual assumptions upon which she had relied in support of her calculation of damages. He gave evidence for about 50 minutes on the morning of Day 6 (T6/888-918). (7) Mr Hamish Patel: He was a pricing manager at RGSE who gave evidence about the pricing of RGSE’s response to Bombardier’s 2007 invitation to tender. He had made one witness statement; and he gave evidence for just over 20 minutes on the morning of Day 6 (T6/919-935). (8) Mr Erwin Koelmel: He is RGSE’s Global Accounts Manager, and he gave evidence about its response to the 2007 invitation to tender. He had made one witness statement; and he gave evidence for about 1 hour and 25 minutes on the afternoon of Day 6 (T6/938-994). (9) Mr Robert Hoskins: He was an employee of Ricoh UK and it was he who had responded on its behalf to requests for information from RIA. He had made one witness statement; and he gave evidence on the morning of Day 7 for about 2 ¼ hours (T7/997-1082), addressing his response to RIA’s requests for information and the nature of CMP’s confidential information. (10) Ms Nilay Yilmaz: At the relevant time, she was a project manager employed by Ricoh UK who was involved in the deployment of its MFDs to Bombardier’s UK sites during 2008. She had made one witness statement; and she gave evidence on the morning of Day 7 for about 15 minutes (T7/1083-1093). (11) Mr Alf Nordgren: He is a Senior Global Project Manager at RGSE and he was responsible for the global deployment of Ricoh’s MFDs by each local operating company (including Ricoh UK) at Bombardier’s sites worldwide. He had made two witness statements; and he gave evidence for about 50 minutes on the afternoon of Day 7 (T7/1097-1120). I also received (as hearsay evidence under the Civil Evidence Act 1995) two witness statements from Mr Stuart Hammond, now a national sales manager employed by Ricoh Australia. He gave evidence about the implementation stage of the deployment of Ricoh UK’s MFDs at Bombardier’s sites in the UK in 2008, when he was employed by Ricoh Global Services UK as an international account manager.

Despite the number of witnesses tendered by Ricoh UK, the claimant complains that the defendants have failed to lead evidence from a number of other key individuals whom they could reasonably have been expected to produce. It is also said by the claimant that Ricoh UK has failed to preserve relevant documents; and that its disclosure has been given piecemeal, and on a “drip feed” basis. Even now, it is said to be far from clear that Ricoh UK has disclosed all relevant documents which are, or have been, in its control. The claimant asserts that all of this has materially hampered him in presenting his case in an efficient and cost-effective way; and that the court has still not been provided with a complete, and accurate, picture as to the full extent of the disclosure of CMP’s confidential information, and the uses to which this has been put. I have borne firmly in mind all that Mr Vanhegan has had to say upon this subject, and also the points made by Mr Hollander in response. I should record that I am not satisfied that there has been any conscious and deliberate non-disclosure of documents on the part of the defendants: had there been, I see no reason why the documents in the bundle at X5 (which included the emaildated 21 February 2003 from Ms Coppieters of RIA at X5/17, showing that Mr Hoskins’s email to Mr Clark of 20 February 2003 had been copied to Mr Beelen) should have been disclosed on the eve of the trial. Whilst, with the benefit of hindsight (and given that the duration of the no-contact restriction contained in clause 7 of the Confidentiality Agreement was related to the retention of “Confidential Information”) it would have been better had Ricoh UK put in place procedures for the preservation of potentially relevant documents upon receiving Mr Jones’s letter of claim dated 5 December 2003 (F3/870-2 & G1/1-3), I can understand why it did not do so given that that letter, and subsequent correspondence up until Stevens & Bolton LLP’s letter of 8 July 2009 (G1/27), was directed exclusively to the claim under clause 7. I am satisfied that the subsequent “drip feed” of documents has been attributable to the enormity of the disclosure task facing the defendants (with the additional difficulties presented by the number of relevant entities within the Ricoh corporate group structure, and the departures of key employees), and also the developing nature of the claim, and the issues to which this has given rise.

I make the following observations upon the witnesses in the case. First, the claimant himself: Mr Vanhegan seeks to portray Mr Jones as an honest witness, who did his best to assist the court throughout his very lengthy cross-examination. However, when giving his evidence, I found Mr Jones to be argumentative and opinionated, prone to making exaggerated assertions, ready to jump to convenient (for him) conclusions, and prepared to temper his evidence to the cross-examination. Mr Jones has a clear, direct, and personal interest in the outcome of this litigation, and a profound suspicion and dislike of Ricoh. Paragraph 22 of Mr Jones’s 2^nd witness statement reflected a marked, and in my judgment opportunistic, shift in emphasis from the stress placed upon customer connection in his 1^st witness statement (prepared before the non-competition restriction in clause 7 of the Confidentiality Agreement was struck down by Roth J) to a reliance upon confidential information, a change explored in the course of his cross-examination at T2/149-155. Having said all that, however, as the evidence of Ricoh UK’s witnesses was tested in cross-examination, it became clear that some, at least, of Mr Jones’s suspicions as to the disclosure and misuse of confidential information, and Ricoh UK’s attempts to conceal it, were well-founded. In particular, Mr Jones’s expressed concern that Ricoh UK’s evidence that RIA’s information-gathering exercise in February 2003 was all to do with “channel selection” was, in reality, a “cover story” was vindicated, as various of Ricoh UK’s witnesses were forced, in cross-examination, to concede that RIA’s requests for information (both in February 2003 and later) did not comply with, and went far beyond, what was required by RIA’s own “internal channel” selection procedures, and constituted “information gathering”. Whilst I feel that I must scrutinise Mr Jones’s evidence with care, and in the light of other evidence which I find to be reliable, I find that I cannot dismiss his evidence entirely.

I accept Mr Vanhegan’s assessment of Mrs Cartledge as an honest witness who, rather than bending over backwards to assist the claimant, gave (at least in the witness box, if not in her witness statements) independent evidence from her perspective as the manager of Bombardier’s UK procurement process in 2003. Indeed, in his oral closing submissions, Mr Hollander, whilst describing Mrs Cartledge’s written evidence as “very partisan”, rightly described (at T8/1186) her oral evidence as “entirely impartial and transparently honest”. I accept her as a businesslike, honest, and reliable witness.

There was no challenge to the honesty, the reliability, or much of the evidence of Mrs Neame and Mr I’Anson. Mr Garius was criticised for not mentioning his present business connection with the claimant; and he was challenged for exaggerating the value of the Hoskins spreadsheet, in terms of formulating a response to the 2003 invitation to tender, and for the suggestion (implicit in his evidence) that its contents had influenced the terms of RIA’s bid. I have no doubt that Mr Garius is supportive of the claimant’s case (although he did reject any suggestion that CMP had been negotiating with Toshiba “under duress”); and ultimately I derive little real assistance from his evidence.

I cannot regard Mr Duckenfield as a reliable witness. I am satisfied that he did not attend the meeting with members of Bombardier’s NPR procurement committee in Berlin on 13 May 2003 on behalf of Ricoh UK; and I reject his evidence (and that of Mr Jones) to this effect. It is inconsistent with the way in which Mr Duckenfield was presented at the time (see Mr Jones’s email of 6 May 2003 at F2/507 and the CMP presentation at F2/470),and with the fact thatCMP paid for his trip to Berlin (see Mr Duckenfield’s evidence at T5/672, confirmed by Mr Rollings at T6/886-7) despite Ricoh UK’s obligation to reimburse Mr Duckenfield’s reasonable travel expenses under clause 6 of his consultancy agreement (X9), which had, in any event, expired on 1 May 2003. The true role of Mr Duckenfield was explained by Mr Rollings at T6/850-855 and 882-5, whose evidence I accept. I should also record that whilst, for reasons which appear later in this judgment, I do not find Mr Clark to be a reliable witness generally, on the issue of whether or not Mr Duckenfield discussed the Berlin meeting with Mr Clark, I prefer Mr Clark’s evidence (at T5/781) that he did not do so. I also find that Mrs Cartledge’s perception that Mr Duckenfield had attended the May 13 meeting as “one of Ricoh’s senior managers” (paragraph 14 of her 2^nd witness statement) influenced her expectation (expressed at paragraph 23) that Ricoh would bid jointly for the 2003 invitation to tender with CMP; and that it contributed to her feeling of “shock” when Ricoh decided to bid against CMP.

In paragraph 125 of his written closing submissions Mr Hollander described his clients’ witness statements as dealing with the allegations (past and present) “in a detailed and objective manner”; and each of those witnesses as seeking to be “objective and fair”. I cannot agree. Certain of Ricoh UK’s witness statements were inaccurate in material respects; and they represented a false picture of the nature, and extent, of the disclosure, and use, made of confidential information, although it is right to record that a number of those witnesses readily admitted these errors during the course of cross-examination by Mr Vanhegan. Generally, I accept Mr Vanhegan’s descriptions of the various witnesses tendered by Ricoh UK, at paragraph 68 of his closing written submissions.

Mr Beelen was a thoroughly unreliable and unsatisfactory witness. Argumentative and partisan, and deliberately selective and economical in his written evidence (which was incomplete and designed to conceal the truth), he had clearly come to court to try to argue, and advance, Ricoh UK’s case, rather than to assist the court in finding the truth. He was evasive in cross-examination, and was only prepared to concede that his evidence was inaccurate when confronted with incontrovertible, and contemporaneous, documentary evidence to the contrary. An example is to be found at T4/545-8. Contrary to his written evidence, Mr Beelen knew that requests for pricing and contract information from Mr Alain Dautzenberg (of Ricoh Belgium) were nothing to do with “channel selection”, but rather were to assist Ricoh in bidding for business in Belgium: T3/441; yet he deliberately tried to conceal this fact. The emails in X5, which were disclosed by the defendants on Friday 13 January 2012 (the last business day before the start of the trial), demonstrated the inaccuracy of the last sentence of paragraph 45 of Mr Beelen’s 1^st witness statement: T3/450. Paragraph 30 was successfully challenged at T4/524-531. I am entirely satisfied that I cannot safely rely upon Mr Beelen’s evidence unless it is against the defendants’ interests, or it contains admissions, or it is independently corroborated by other reliable evidence.

Mr van Galen was honest in cross-examination, although he was not entirely well-served by his witness statement; and his ability to recall relevant matters (such as how the devices identified in RIA’s response to the 2003 invitation to tender had been selected: T4/566-7) was, inevitably after 8 years, limited. I expressly reject the suggestion made at T4/599 that Mr van Galen’s offer, on 16 June 2004, of a rebate (or discount) of 50% in the fourth year on the device rental prices applicable to a 3-year term was because he had been told by Ricoh UK that CMP offered a 50% discount in the fourth year. I accept Mr van Galen’s evidence that this was “just something which came out of my mind”. In doing so, I bear in mind: (1) my assessment of Mr van Galen, a palpably honest witness, who has not worked for Ricoh for over five years; (2) the fact that Mr van Galen’s email response (F6/1732) at 13.30 was apparently sent little more than an hour and 10 minutes after Mr Graeme Scott’s query at 12.18; (3) the fact that, in formulating his response, Mr van Galen had no input from either Mr Beelen or Mr Clark, who were both away at the time; (4) the fact there is an inherent logic to Mr van Galen’s (admittedly reconstructive) rationalisation (at T4/593-4) of cutting “the advantage in half and just take both parties’ 50% advantage”, which can be justified by a desire on his part to win the tender; (5) the fact that, although Mr van Galen’s proposal was less beneficial to Ricoh than Mr Scott’s proposal on behalf of Bombardier, it still produced a better return for Ricoh than the price proposed for a fixed 48 months’ contract: see the discussion at T4/600-602 (although, according to my calculations, Mr Vanhegan’s figure of 854.40 should in fact be 824.64: 17.18 x 48 = 824.64); and (6) the fact that a 50% reduction after 3 years was, in the words of Mr Hoskins, “pretty commonplace” in the market (T7/1072-3), as confirmed by the terms of clause 3.01 of Siemens’ Master Equipment and Rental Servicing Agreement (at F1/223).

Like Mr Beelen, Mr Clark was a thoroughly unsatisfactory, and unreliable, witness, who took it upon himself to argue the defendants’ case. His witness statements were incomplete and misleading; yet Mr Clark was reluctant to acknowledge this if he believed that this would be unhelpful to the defendants’ position. In cross-examination, Mr Clark was evasive, and he displayed a marked reluctance to give straight answers to questions, or to commit himself to anything more than “generic” statements. I am satisfied that, contrary to his written evidence at paragraph 11 of his 1^st witness statement and paragraph 8 of his 2^nd witness statement, from about 19 February 2003 Mr Clark was engaged in an information gathering, rather than a “channel selection”, process: see the cross-examination at T5/731 and following, where I cannot accept Mr Clark’s answers. I find his earlier evidence (at T5/703 and following), refusing to accept that by his email of 19 February 2003 at F2/417 he was instructing Ms Irene Coppieters to forward the Hoskins spreadsheet to Mr Alain Dautzenberg at Ricoh Belgium, deeply unsatisfactory. Nor can I accept the assertion in the first sentence of paragraph 63 of Mr Clark’s 1^st witness statement, about which Mr Clark was challenged at T5/779-780. As in the case of Mr Beelen, I am entirely satisfied that I cannot safely rely upon Mr Clark’s evidence unless it is against the defendants’ interests, or it contains admissions, or it is independently corroborated by other reliable evidence.

Mr Pearce was a thoroughly honest and entirely reliable witness. He found himself in the unfortunate position of having to field questions which should more appropriately have been addressed to the absent Mr Hammond. The claimant rightly does not seek to criticise Mr Pearce for his inability to answer questions to which he did not know the answer. Mr Rollings was an efficient and businesslike individual, and an entirely honest and reliable witness who was doing his best to assist the court. The same applies to Mr Platt, whose evidence was, however, limited by his ignorance both of Bombardier’s requirements for MFDs, and of the prices which they were paying, and were prepared to pay, during the period 2003-4. Mr Patel was an honest and reliable witness, whose evidence was of only limited assistance to the court. I accept the evidence of all of these witnesses, subject to the qualifications, and limitations, identified during the course of their respective cross-examinations.

I found Mr Koelmel to be a fast-speaking, difficult and not entirely satisfactory witness, who had a tendency to be dismissive of propositions put to him in cross-examination until compelled to acknowledge their validity in the light of the contemporaneous documents. On key issues, notably his assertion (in paragraph 41 of his witness statement) that RGSE’s response to the 2007 invitation to tender was prepared without any assistance from Ricoh UK, he had reluctantly (or, as Mr Vanhegan preferred to characterise it, “grudgingly”) to concede that he was wrong, at least in relation to service pricing: see T6/966-972. I do not think that Mr Koelmel was deliberately dishonest; but he had a tendency to be slapdash and superficial in his evidence. I consider that I should scrutinise Mr Koelmel’s evidence with great care before I accept it as reliable.

In cross-examination, Mr Hoskins proved to be an exemplary witness, reliable and honest, who went out of his way to assist the court. Ms Yilmaz was an honest witness, although her limited knowledge about matters relevant to the instant litigation reduced the value of her evidence, as became apparent during the course of her cross-examination. I accept the evidence of both these witnesses, as qualified during the course of cross-examination.

Mr Nordgren was an honest witness who was prepared to make appropriate concessions during the course of his cross-examination. Subject to the qualifications introduced during the course of his cross-examination, I accept his evidence.

I accept Mr Vanhegan’s submission that Mr Hammond was a highly material witness, who would have been able to give relevant, and direct, evidence of his reasons for seeking, and the use he made of, confidential pricing and usage information, obtained from Ricoh UK, in relation to the CMP/Ricoh devices which were in place at Bombardier’s UK sites during the period from February to June 2008. The omission to tender Mr Hammond for cross-examination (even by way of video-link with Australia) has inhibited the court in making an accurate assessment of the full facts relevant to the present claim; although I bear in mind, also, that the claimant made no application (under CPR 33.4) for permission to call Mr Hammond to be cross-examined on his 1^st witness statement. (His 2^nd witness statement was only submitted, unsigned, shortly before the start of the trial.) At paragraph 256 of his written closing, Mr Hollander indicated that the defendants were content for the court to take account of the fact that Mr Hammond had not given live evidence when deciding what weight to attach to his statements; and, to the extent that there were inconsistencies between his evidence and that of witnesses who had been cross-examined, in particular Mr Pearce, for the court to prefer the evidence of those witnesses who had been cross-examined. That is how I propose to approach the matter.

My first task must be to determine the true meaning and effect of the Confidentiality Agreement. The correct approach (as explained by the Supreme Court (speaking through Lord Clarke of Stone-cum-Ebony) in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, at paragraph [21]) is to

“…consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.”

I bear in mind that the Confidentiality Agreement was entered into against the background of an existing trading arrangement between CMP and Ricoh UK, regulated by the terms of the Trading Agreement, pursuant to which CMP was recommending Ricoh devices to customers (including Bombardier), and confidential information was passing between CMP, its end users, and Ricoh UK, for the purposes of enabling the latter to supply and install devices, and to ensure their ongoing orderly administration, servicing and billing: compare Mr Hoskins at T7/1014. As Mr I’Anson observed (at T5/636) “the purpose of this agreement was to avoid a competitive situation of Ricoh using information to compete directly with CMP”. I also bear in mind that, as Roth J observed at paragraph [30] of his judgment on the summary judgment application (citing “the mysterious clause 8 (i), which is meaningless”), there are a number of “instances of sloppy drafting in the Confidentiality Agreement”.

Against this background, I accept Mr Vanhegan’s submission that the court cannot apply a literal meaning to the phrase “with a view to entering into an agency agreement with [CMP]”, which appears in clause 2, because no agency agreement was contemplated at the time of the Confidentiality Agreement (nor was one ever entered into). Rather, the Trading Agreement was already in place. Accordingly, the purposes for which Ricoh UK was to be permitted to use the Confidential Information, and to procure that it was to be used, should be construed as being restricted “to the purposes of evaluating the purchasing terms available to CMP, and the supply and installation of devices to customers of CMP, and their ongoing orderly administration, servicing and billing, in accordance with the terms of the Trading Agreement”.

I accept Mr Vanhegan’s submissions (at paragraphs 151(c) and 140 of his written closing), from which I did not understand Mr Hollander to dissent (see paragraphs 63-4 of his written closing), that the Confidentiality Agreement operates to protect “information of an inherently confidential nature, which would be of potential value to Ricoh”, and “the valuable body of inherently confidential information which Ricoh UK was supplied by CMP for the purpose of servicing the requirements of CMP and its clients, such as Bombardier”.

Mr Hollander submits that the protection afforded by the Confidentiality Agreement extends only to confidential information which was “CMP’s confidential information”. Citing Toulson & Phipps: Confidentiality,2^nd edition (2006), at para 3-81 and Fraser v Evans [1969] 1 QB 349 at 361 per Lord Denning MR, he says that a claim in equity for misuse of confidential information can only be advanced in relation to the claimant’s own information; and he submits that the same is true under the Confidentiality Agreement. He makes the point that the duty imposed by clause 1 is one which is owed to CMP; and he points to the duty to deliver up, or destroy, confidential information imposed by clause 5, which, he says, presupposes that CMP has the right to call for the delivery up, or destruction, of the confidential information. Further, Mr Hollander submits that, in order to qualify for protection, CMP must be entitled to the information as principal, and not as agent for a third party, such as Ricoh, or Bombardier, or Siemens. He draws an analogy with the position in Gomba Holdings Ltd v Minories Finance Ltd [1988] 1 WLR 1231.

Mr Vanhegan addressed this submission at paragraphs 214-223 of his written closing, and in his oral closing submissions. At T8/1241-4 he submits that the notion of “title” to confidential information is a complete “red-herring”: one does not have “title” to confidential information. The proper analysis is said to be in terms of a duty of confidence owed by one person to another. Breach of confidence is said to be about protecting the imparting of particular information in particular circumstances which give rise to a duty not to disclose or misuse it. At T8/1248-9 Mr Vanhegan submits that all the information in respect of which the claimant sues is information which, ultimately, is derived from CMP bringing the end-user to Ricoh UK, in circumstances where Ricoh UK has accepted an obligation not to use that information save for the purpose of supplying, installing, servicing and billing a device. That is said to be the beginning, and the end, of the case. Ricoh UK is said to have breached that obligation as soon as it started disclosing that information to third parties, and as soon as it started to use it for its own purposes, as opposed to the purposes of the Trading Agreement. Everything upon which the claimant relies is information – it matters not who owned it – in respect of which Ricoh UK acknowledged an obligation not to use it, save for the purposes of the supply, installation, servicing and billing of devices; and under the Confidentiality Agreement, Ricoh UK expressly acknowledged that it would not use the information for its own purposes, and would not supply it to third parties. That is said to be the only way in which the relationship between CMP and Ricoh UK could have worked. Mr Vanhegan points out that the case in Gomba Holdings was advanced on the basis of title, and that the Court of Appeal expressly stated that it was “not concerned with the ownership of information”: see 1233C-D per Fox LJ. As for Mr Hollander’s reliance upon clause 5 of the Confidentiality Agreement, at T8/1236-7 Mr Vanhegan submits that the Confidentiality Agreement envisages that confidential information will be passed to Ricoh UK for the purposes of the Trading Agreement. Whilst the language of clause 5 of the Confidentiality Agreement would appear to give an unfettered right for CMP to ask for the delivery up of that confidential information, in order to give the provision any business efficacy it should be construed as applying only where the information is no longer legitimately required by Ricoh UK for the purposes of the Trading Agreement; that is to say, for the purposes of the supply, installation, servicing and billing of devices.

I accept Mr Vanhegan’s submissions. In his classic statement of the law in Coco v A N Clark (Engineers) Ltd [1968] FSR 415 at 419 Megarry J identified the three essential elements of a claim for breach of confidence (where there was no contractual relationship between the parties) as follows: (1) the information itself must have the necessary quality of confidence about it; (2) the information must have been imparted in circumstances importing an obligation of confidence; and (3) there must be an unauthorised use of the information to the detriment of the party communicating it. I acknowledge that there is a fourth essential ingredient (identified by the Court of Appeal in Fraser v Evans) which Megarry J omitted to mention, no doubt because he considered it to be so obvious that it did not merit express articulation: that the complainant must be the person who is entitled to the confidence, and to have it respected. In my judgment, that requires the claimant to show that he has a sufficient interest in the information to entitle him to maintain an action to restrain its unauthorised dissemination or use. In my judgment, however, it is not appropriate to approach the issue whether this requirement is satisfied in terms of an inquiry as to whether the relevant information is the claimant’s “property”. As Lord Denning MR observed in Fraser v Evans at 361B-C:

“The jurisdiction is based not so much on property or on contract as on the duty to be of good faith.”

Indeed, as the Court of Appeal recognised in Coogan & Phillips v News Group Newspapers Ltd [2012] EWCA Civ 48 (decided after I had reserved judgment) at paragraphs [33]-[39], confidential information is not strictly “property”; although it is “property-like”, and it is not inappropriate to include it as an aspect of “intellectual property”. Thus, in my judgment, and in the context of the present case, the appropriate inquiry should be directed to considering whether the claimant has demonstrated that CMP had made a sufficient contribution to the creation of the relevant confidential information, in the furtherance of its own commercial interests, to justify the imposition of a duty, recognised by the courts, and owed to CMP (and thus to the claimant), to keep that information secret, and entitling them to restrain its unauthorised use. I accept Mr Vanhegan’s submission (at paragraph 214 of his written closing) that valuable confidential information which CMP has generated as a result of its own skill and labour, and from its own audits and relationship with Bombardier, such as the choice of devices, their location and contact information, and customer-specific device and service pricing information, is capable of constituting CMP’s confidential information.

I also accept that clause 5 of the Confidentiality Agreement should be construed as subject to an implicit temporal limitation, disentitling CMP from calling for the return of confidential information, and the destruction of all records thereof, where this would be inconsistent with the continuing performance of the parties’ obligations under the Trading Agreement for the supply, installation, servicing and billing of devices recommended by CMP for end-users which it had introduced to Ricoh UK. On this construction, clause 5 affords no assistance to the defendants’ case.

Mr Hollander submits that the no-contact restriction in clause 7 was not severable from the remainder of the Confidentiality Agreement, which therefore falls in its entirety as a result of Roth J’s unappealed decision that clause 7 is void and unenforceable as a matter of EU competition law. I reject that submission.

There was no dispute between leading counsel as to the applicable legal test. Where a clause in an agreement is found to be void as a matter of European law, it is a matter of English domestic contract law whether the remainder of the contract can nevertheless remain in force. Severability is not possible where it would fundamentally change the character, purpose, scope, substance or intention of the relevant agreement. Mr Hollander submits that this is just such a case. The purpose of the Confidentiality Agreement is said to have been to protect CMP’s customer-base, by preventing Ricoh UK from selling to CMP’s existing and potential customers. Once the non-contact provision in clause 7 is held to be void, it is submitted that the Agreement becomes radically different from the agreement which the parties thought they were making. It is said that the loss of clause 7 defeats the entire purpose of the Agreement since, contrary to the express, and declared, intentions of the parties, Ricoh UK is free to compete with CMP, and sell to its existing and potential customers. As such, clause 7 cannot be severed from the remainder of the Agreement, thereby rendering the whole Agreement unenforceable.

I prefer the competing submissions of Mr Vanhegan that clause 7 can be severed from the Confidentiality Agreement without so changing its character that the remainder of the Agreement fails. In my judgment, the no-contact restriction contained in clause 7 is separate and distinct from the remaining provisions of the Agreement, which are directed to the protection of CMP’s confidential information. Even after the excision of clause 7, the Agreement continues to operate to prevent Ricoh UK from disclosing, and misusing, that information, with consequent potential damage to CMP’s client-base.

In the light of Mr Vanhegan’s acceptance that CMP should only be entitled to “the narrow protection of information of an inherently confidential nature, which would be of potential value to Ricoh”, Mr Hollander did not seek to argue that the provisions of the Confidentiality Agreement relating to confidential information were in breach of article 101 of the European Union Treaty. In my judgment, he was right not to do so. For the reasons given by Mr Vanhegan, the remaining provisions of the Confidentiality Agreement are not, by their very nature, injurious to the proper functioning of competition, and they do not have that as their object; nor do they have the effect of preventing, restricting or distorting competition within the internal market of the EU. I am satisfied that these provisions do not infringe article 101 of the EU Treaty. Mr Hollander rightly did not seek to argue that they were in unreasonable restraint of trade at common law; and the court does not find that they were.

In the light of my decision as to the true construction of the Confidentiality Agreement and its enforceability, it is unnecessary for me to consider further the claimant’s claim for breach of confidence, independently of any contract between the parties. There are two reasons for this. First, it is unnecessary to consider what Megarry J described (in Coco v Clark at 419) as “the pure equitable doctrine of confidence” where there is a contractual relationship between the parties. As Megarry J went on to observe,

“In cases of contract, the primary question is no doubt that of construing the contract and any terms implied in it.”

Applying these observations, in Vercoe v Rutland Fund Management Ltd [2010] EWHC 424, at paragraph [329], Sales J observed that:

“Where parties to a contract have negotiated and agreed the terms governing how confidential information may be used, their respective rights and obligations are then governed by the contract and in the ordinary case there is no wider set of obligations imposed by the general law of confidence.”

In other words, the existence of the contract displaces any general duty of confidence which might otherwise arise in equity. This is no more than an application of the sound legal policy which acknowledges the parties’ autonomy to configure the legal relations between them, providing certainty, and so limiting disputes and litigation. As Etherton LJ observed (with the agreement of Patten and Pill LJJ) when holding, in MacDonald, Dickens & Macklin v Costello [2011] EWCA Civ 930, [2011] 3 WLR 1341 (not cited to me), at paragraph [23] that the unjust enrichment claim in that case must fail because it would undermine the contractual arrangements between the parties:

“The general rule should be to uphold contractual arrangements by which parties have defined and allocated and, to that extent, restricted their mutual obligations, and, in so doing, have similarly allocated and circumscribed the consequences of non-performance.”

The second reason is that, in the circumstances of the present case, any duty of confidence which might otherwise have arisen in equity would have been no more extensive than the duty of confidentiality assumed by Ricoh UK under the terms of the Confidentiality Agreement. Thus, any claim in equity (even if it were maintainable) would add nothing to the claim in contract.

In the course of his submissions, Mr Vanhegan emphasised that he did not need to establish a misuse of CMP’s confidential information in order to establish a breach of the Confidentiality Agreement; proof of unauthorised disclosure was sufficient. So far as the issue of breach is concerned, that is correct. But, as Mr Hollander emphasised (at T8/1161), when it comes to the assessment of damages, there is an enormous difference between the mere unauthorised disclosure of CMP’s confidential information and its misuse. Indeed, at paragraph 189 of his written closing submissions, Mr Vanhegan acknowledged that the misuse of confidential information might affect the quantum of damages. In the discussion that follows, I bear that point firmly in mind.

At the outset, it is important to appreciate that it is no part of the claimant’s case (as acknowledged at paragraph 179 of Mr Vanhegan’s closing submissions) that Ricoh UK (or any other Ricoh entity) ever received information directly from CMP’s own database, or that it had access to it. Rather the case is advanced on the basis that Ricoh UK received regular “snapshots” of information stored in CMP’s database in the form of data packs and updated data sheets (supplied by CMP) and meter reading reports (of varying provenance). Ricoh UK then downloaded this data onto its own AS 400 database (supplied by IBM) where it was stored. The Hoskins, Davenport and Wilson spreadsheets were all obtained by Ricoh UK from its own AS 400 database.

Against that background, I turn to the first of the alleged breaches in relation to the 2003 invitation to tender: the disclosure, and subsequent misuse, of the Hoskins spreadsheet. As Mr Hollander accepted (at paragraph 127 of his closing written submissions), the facts alleged by the claimant in relation to the disclosure of the Hoskins spreadsheet, and the accompanying completed MIF (machines in field) grid, in February 2003 are largely correct. On 4 February 2003 Ms Irene Coppieters (of RIA) sent an email (F2/391) to (amongst others) Mr Ian Clark stating that “Ricoh Belgium was working on a deal with Bombardier”, and asking the recipient to complete the attached MIF grid “to indicate existing mif/relations with this company in your country”. In the UK, Bombardier was said to be located in Derby, Cheshire and Reading. On the same day, Mr Clark forwarded the request to Mr Hoskins and to Pat Gallagher of NRG UK, asking them to “take a look for me on the IBMs”. Mr Hoskins responded on the same day (F2/394) stating (incorrectly: the true number was 223) that Ricoh UK had “203 units (copier, fax and printers) in Bombardier through CMP (a 3^rd party agent). This has been a long term customer, and so would like to stake a claim on this one.” Mr Clark forwarded this email to Ms Joantine Ceelen and Ms Martine de Munck (personal assistants to Mr Fred Alsemgeest, Mr Beelen’s immediate superior and the man with ultimate responsibility for RIA), with a copy to Ms Coppieters (F2/397), commenting that he would ask Mr Hoskins to complete the MIF grid. Mr Clark sent Mr Hoskins an email asking him to complete and return the applicable row of the MIF grid (F2/401). This Mr Hoskins duly did, sending both the completed MIF grid, and also the Hoskins spreadsheet, as a single attachment (F2/405-408); and on 5 February 2003 Mr Clark then forwarded this email and its attachment (F2/409-412) to Ms Ceelen and Ms de Munck (with a copy to Ms Coppieters). The completed MIF grid revealed that CMP/Ricoh UK had 137 copiers and 86 printers in place with Bombardier in the UK and Ireland. The Hoskins spreadsheet identified the model, installation date, location, and contact details of, and for, all of those devices.

It is important to appreciate that Mr Hoskins was not expressly asked to supply the information contained within his spreadsheet, but merely to complete the MIF grid, identifying the number of devices which Ricoh had supplied to Bombardier in the UK and Ireland. It was Mr Hoskins’s spontaneous decision to attach his spreadsheet to the completed MIF grid. Mr Hoskins’s evidence (at T7/1078-9), which I accept, was that he “was always encouraged to show his workings”; and that he produced the spreadsheet for the purpose of demonstrating the accuracy of the stated number of devices, and “establishing the credentials of my stake that Ricoh and CMP would then be chosen as the fulfilment channel, should things be successful”.

I do not consider that the completed MIF grid, which merely identified the numbers of copiers and printers which Ricoh UK had with Bombardier in the UK and Ireland, contained any relevant CMP confidential information of any commercial value. The Hoskins spreadsheet contains no information about the pricing, or usage, of the devices it identifies. The particular information it contained had been edited by Mr Hoskins from a much wider range of information on Ricoh UK’s AS 400 database, which had itself been derived from the data packs and updated data sheets supplied to Ricoh UK by CMP. Mr Hollander submits that there was no CMP confidential information on the Hoskins spreadsheet. He supports that submission by reference to Mr Jones’s acceptance in cross-examination (at T2/136 & 138), when being questioned about the contents of CMP’s data packs, that there was nothing confidential about what equipment was being supplied to Bombardier, or about the delivery address, both of which Ricoh UK needed to know in order to supply, deliver and service the devices. But that seems to me to ignore the effect of the totality of the evidence in the case, including the acknowledgments as to the confidentiality of the information provided by Mr Clark (T5/743-4) and Mr Hoskins (T7/1014, 1048-1054 & 1064-5). I also note that, shortly after the passage upon which Mr Hollander relies, Mr Jones stated (at T2/139-140) that “all of the pack gives Ricoh the information that says that the client, in itself, has a need to have a device in a certain location to do a certain job at a certain price”. I accept that this was information which Ricoh UK needed to know. I also accept that, in many cases, the installation dates for devices were specified by Bombardier, rather than by CMP. But I accept Mr Vanhegan’s broad submission that the particular model of the device which CMP had recommended to Bombardier, in order to satisfy its specific copying and printing requirements in any particular location, constituted CMP’s confidential information. In my judgment, CMP had made a sufficient contribution to the creation of this confidential information, in the furtherance of its own commercial interests, to justify the imposition of a duty, arising from the express agreement of the parties by way of the Confidentiality Agreement, and owed to CMP (and thus to the claimant), to keep the information secret, and to restrain its unauthorised use. For these reasons, I find that the Hoskins spreadsheet fell within the purview of the Confidentiality Agreement; and that its disclosure to RIA, and then to Ricoh Belgium, constituted a breach of the terms thereof. I should, however, make it clear that I acquit Mr Hoskins of any conscious, and deliberate, impropriety in its disclosure. As his expressed reason for providing the spreadsheet makes clear, Mr Hoskins considered that he was assisting CMP and Ricoh UK to stake a claim to act as the fulfilment channel for any future deal to supply devices to Bombardier in the UK. I must also make it clear that whilst this unauthorised disclosure of CMP’s confidential information constituted a breach of contract, I am satisfied that no actual loss or damage was thereby caused to CMP absent any misuse of this confidential information.

On 19 February 2003 (F2/417) Mr Clark responded to an email from Mr Dautzenberg (of Ricoh Belgium) inquiring about Ricoh UK’s “frame agreement” with Bombardier (F2/416). Mr Clark’s email was also addressed to Mr Hoskins, Ms Ceelen and Ms de Munck, and was copied to Ms Coppieters and Mr Beelen. It informed Mr Dautzenberg that Ms Coppieters had “all the details of the [Ricoh UK] mif which at last count equalled 137 MFD/Copier units and 86 printers”; and she was asked to “forward the mif detail to Alain”. Since Mr Clark’s email had already provided Mr Dautzenberg with all of the information contained within the MIF grid, I accept the claimant’s submission that this constituted a request to Ms Coppieters to forward the Hoskins spreadsheet to Mr Dautzenberg. Although there is no direct evidence that she did so, since there is no reason why Ms Coppieters should not have complied with this request; and in the absence of any documentary evidence of any complaint that she in fact failed to do so, I infer, and I find as a fact, that the Hoskins spreadsheet was duly forwarded to Ricoh Belgium. Mr Clark’s email also asked Mr Hoskins to let him have “a copy of the existing [Ricoh UK] Bombardier contract, pricing and any other useful information asap”. Mr Hoskins responded by email to Mr Clark on 20 February (F2/420) as follows:

“Hi Ian,

As mentioned previously the MIF we have in Bombardier is through a 3^rd party (CMP).

As a result we don’t have the contract, or pricing that they currently come under. We offer a 67% reduction from RRP to CMP, but we don’t know what they do after that. They will probably add some margin.

Just to let you know, there are discussions going on between CMP and Bombardier, relating to the authority of the Belgian contact to negotiate a Pan-European deal. There is a meeting scheduled for tomorrow, after which we should know more.”

Mr Clark forwarded Mr Hoskins’s response to Ms Coppieters (F2/421); and, although this only became apparent from additional disclosure provided by the defendants on the eve of the trial (at X9/17), on 21 February 2003 Ms Coppieters forwarded it on to Mr Dautzenberg, with a copy to Mr Beelen. The claimant does not rely upon the email exchange between Mr Clark and Mr Hoskins as amounting to a discrete breach of the Confidentiality Agreement. He is right not to do so. The only relevant information disclosed by Mr Hoskins was the 67% reduction from recommended retail price offered by Ricoh UK to CMP. This was Ricoh UK’s information rather than CMP’s.

On 17 June 2003 Ms Marjolijn Wortman of Ricoh sent an email (F2/565) to (amongst others) Mr Clark asking for information about “the existing business you have by Bombardier. We would like to have information about the MIF, type of contract and length of the contract you have by Bombardier. It concerns Belgium, UK and Sweden.” Mr Clark’s response was to send an email to Mr Hoskins and Pat Gallagher (F2/566) asking them to “check for any MIF/relations please and come back to me”. On 19 June 2003 Mr Hoskins responded by email (F2/567-570), forwarding his earlier email of 4 February stating (inaccurately) that Ricoh UK had 203 units in Bombardier through CMP, together with the uncompleted MIF grid (but not the Hoskins spreadsheet), and confirming that “nothing has changed since February”. This email, and the uncompleted MIF grid (but not the Hoskins spreadsheet), were then forwarded by Mr Clark to Ms Wortman (F2/571-4) without comment, also on 19 June. This disclosure added nothing to that which had already occurred in February 2003. Mr Hollander makes the valid point (at paragraph 159 of his written closing) that Mr Clark’s failure to point out the error as to the total number of devices (in fact 223 rather than 203) may throw some light on the very limited interest shown by RIA in the information provided by Mr Hoskins.

Much of the evidence, and many of the submissions, at trial were directed to the claimant’s allegation that RIA used the Hoskins spreadsheet in its selection of devices for its response to the 2003 invitation to tender, which was submitted to Bombardier on 15 October 2003 (F3/628-645). Apart from the proposal contained in Mr van Galen’s email of 16 June 2004 (addressed below), it is not alleged that the Hoskins spreadsheet was used in any of the subsequent communications, amended proposals, presentations, and so forth which followed RIA’s initial response. It is not necessary for me to rehearse in detail all of the evidence, and submissions, relevant to the claimant’s allegation that the Hoskins spreadsheet was used for the purposes of RIA’s device selection in October 2003. I summarise the salient points below; but I make it clear that I have borne all of the points raised firmly in mind.

In support of his submission that Mr Beelen used the Hoskins spreadsheet to select, by way of its response to the tender invitation (F3/637), the 1022 device and “as an alternative” the 2035 (expressly “because it falls in a higher segment due to speed”) Mr Vanhegan relies (amongst other matters) upon the following: (1) the defendants’ failure to mention the Hoskins spreadsheet in their first round of witness statements; (2) the claimant’s exposure of the fact that RIA’s supposed “channel selection” inquiries were no more than a “cover” for what was in fact an information gathering exercise, which bore no relation to its own internal procedures regulating the selection of the operating company for “channel fulfilment”; (3) that there was no evidence of RIA ever having offered the 1022 and 2035 devices together (as alternatives), and in the absence of any other devices, in response to any other tender invitation; (4) that to offer the 1022 and 2035 devices (as alternatives) was contrary to RIA’s normal practice of listing an available range of devices and suggesting an audit; (5) the failure to offer any segment 1 device despite the facts that (a) in 2002/3 such devices were the most popular devices in the market generally, and (despite Mr Beelen’s initial denial of any knowledge of this) the majority of Bombardier’s devices in Belgium were segment 1 devices, and (b) Ricoh’s own promotional literature (at X7) described the 1018 (a segment 1) device as a “workgroup” device for 5-24 users (although I note that the “volume range” is described as “low”); (6) the fact that, contrary to the wording of RIA’s response to the 2003 invitation to tender (drafted by Mr Beelen: see T5/655-6), according to RIA’s own internal operational manual (at F5/1241) the 1022 and 2035 devices were classified by RIA as falling within the same speed segment (of 20 to 45 pages per minute); (7) Mr Beelen’s acceptance in cross-examination that RIA would have looked back to the results of the February 2003 MIF request (but not the Hoskins spreadsheet: see T5/652-661) when preparing its response to the 2003 invitation to tender; (8) Mr Beelen’s acknowledgment (in paragraph 20 of his 2^nd witness statement) that it was a “coincidence” that the 1022 and 2035 devices together “corresponded to 74% of the devices currently installed at Bombardier UK” (as disclosed by the Hoskins spreadsheet); (9) acknowledgments, in the course of cross-examination, on the part of Messrs Clark, Pearce, Koelmel and Hoskins as to the potential value, importance and utility of the information in the Hoskins spreadsheet, and Mr Beelen’s acceptance (in cross-examination at T3/459-460) that such information would have been “very important” if a customer required a “one to one” replacement because of the insight it gave into what it already had installed; and (10) the facts that (a) RIA has disclosed no documentary evidence explaining the device selection, and (b) both Mr Beelen and Mr van Galen have been unable to provide any real assistance in that regard.

In answer, Mr Hollander relies upon the following: (1) the categorical denials in evidence of Mr Beelen (at T5/652) and Mr van Galen (at T4/611-612), who together made the device selection (see T4/490), that they had made any use of the information in the Hoskins spreadsheet for the purpose of selecting the devices to be offered to Bombardier in RIA’s response to the 2003 invitation to tender; (2) Mr Beelen’s evidence (at T5/654; see also T3/435-6) that the Hoskins spreadsheet would not have been downloaded to, and stored on, RIA’s database at its headquarters in Holland, corroborated by Mr van Galen’s evidence (at T4/611-613) that the information to which he had access at RIA’s headquarters in Holland did not include the Hoskins spreadsheet; (3) the absence of any expert evidence (admitted in accordance with CPR 35) on the issue of device selection, with the result that the evidence of Mr Jones and Mr Garius has no more than the status of (self-serving in the case of Mr Jones) factual evidence of what they themselves would have done in the circumstances; (4) the poor quality, and the vagueness, of the 2003 invitation to tender (as acknowledged by Mrs Cartledge) and the submission that “a bland unspecific tender inevitably requires a broad solution”; (5) Mrs Cartledge’s acceptance (at T3/352) of Mr Hollander’s suggestion that an alternative to simply declining to bid in response to an uninformative tender would have been to “put in just a straight down the middle machine or suggest two alternative straight down the middle machines”; (6) the submission that there was nothing unusual about offering one standard machine, with another (faster) standard machine as an alternative, in response to an uninformative tender; (7) the submission that there is nothing surprising about the facts that (according to paragraph 29 of Mr Jones’s 4^th witness statement) one of the two machines (the 1022) fell within the same segment (Group 2) as 48% of the 136 copiers identified on the Hoskins spreadsheet and the other (the 2035), offered as an alternative, fell within the same segment (Group 3) as 26% of those copiers; (8) the submission that there was nothing surprising in RIA offering no segment 1 device in response to a tender requirement of 1 device for every 15 users because a faster device would be capable of generating a greater volume of printed sheets, offering economies of scale in terms of service costs, as demonstrated by the table of service prices at F2/388, commented upon by Mr Beelen in re-examination at T5/649-651, and supported by Mr Beelen’s evidence at T4/490-3 and T4/509-514; and (9) the submission that if Mr Beelen and Mr van Galen had made use of the Hoskins spreadsheet as alleged, their choice of devices becomes “entirely perverse” because (a) any use of confidential information was, according to Mrs Cartledge, “inefficient” (T3/350): her response to the tender was “one of disappointment” since “it did not correspond with what Bombardier was looking to achieve” (paragraphs 8 and 12 of her 3^rd witness statement), and RIA’s choice of device had to be supplemented in the second round by the selection of a colour-capable device (the 1232) because of the inadequacy of its initial response; (b) anyone using the Hoskins spreadsheet would not have offered only black and white devices: the defendants’ summary (X8) of the 223 copiers and printers identified in the Hoskins spreadsheet reveals 57 colour-capable devices, yet RIA offered no such device in its initial response to the tender invitation; (c) an analysis of X8 demonstrates that many of the segment 2 devices offered faster speeds than the 22 pages per minute of the 1022 device which was RIA’s primary selection; (d) thus, viewed objectively, “it is simply impossible to find any correlation between what was specified and what was on the Hoskins spreadsheet”.

Having carefully considered all of the competing submissions, I am not persuaded that the claimant has made out his claim that RIA used the Hoskins spreadsheet for the purposes of selecting the devices to be offered to Bombardier in its response to the 2003 invitation to tender. In my judgment, the points made by Mr Hollander are more cogent than, and outweigh, the countervailing arguments advanced by Mr Vanhegan. Whilst I cannot regard Mr Beelen as a trustworthy or reliable witness, his evidence on device selection is supported by that of Mr van Galen, who I do regard as reliable and trustworthy. I am satisfied that if Mr van Galen had been privy to any recourse to the Hoskins spreadsheet (or any other information which he had known to be derived from Ricoh UK) for the purposes of device selection, he would have remembered that fact, and he would have disclosed it to the court. At first sight, the lack of any contemporaneous documentation which might throw some light upon how RIA came to select the devices offered in its tender response raises some concerns; but these disappear when one has regard to the poor quality of the invitation to tender itself, and also Mr van Galen’s evidence (at T4/567) that discussion about the response was limited to a “short discussion” in a room shared by “a couple of people”. Even if I find that Mr Beelen has deliberately lied to this court, I remind myself of my statement (not cited in submissions) in Berryland Books Ltd v BK Books Ltd [2009] EWHC 1877 (Ch), [2009] 2 BCLC 709 at paragraph [11], in terms described by Etherton LJ, when reversing part of my judgment on appeal ([2010] EWCA Civ 1440 at paragraph [29]), as “unimpeachable”, of the principles by which evidence, both written and oral, is to be evaluated. I am satisfied that if Mr Beelen has deliberately lied to this court, he has done so in a misguided (and reprehensible) attempt to bolster a good case, rather than because the defendants’ case is itself a lie. Viewed objectively, I do not find that there is a sufficient correlation between the information disclosed by the Hoskins spreadsheet and RIA’s tender response to support the inference that RIA made use of the former when preparing the latter. Like the claimant, I find it surprising that RIA did not offer any segment 1 device in their tender response. But the defendants’ analysis (X8) of all 223 of the devices identified in the Hoskins spreadsheet indicates that there were 41 devices falling within and below segment 1, just one less than the number of devices falling within segment 3. Therefore, had RIA made use of the Hoskins spreadsheet, I would have expected them to have included a segment 1 device within their tender response. Thus, in my judgment, the omission of any segment 1 device (such as a 1018 machine) is entirely neutral, and provides no support for the claimants’ case. Even more telling against the claimants’ thesis is the omission from the tender response of any colour-capable device: had RIA taken the Hoskins spreadsheet into account when preparing their tender response, I would have expected it to have offered the option of such a device as part of its tender response.

I therefore reject the claimants’ case that RIA used CMP’s confidential information, contained within the Hoskins spreadsheet, when preparing its response to Bombardier’s 2003 tender invitation. Had I concluded otherwise, it would have been necessary for me to bear in mind, when assessing damages, that, although RIA’s response was sufficient to secure its down-selection (with CMP) as one of Bombardier’s two preferred tenderers, (1) the use made of the Hoskins spreadsheet was, according to Mrs Cartledge, “inefficient”, and the response itself was poor, and (2) RIA’s bid was ultimately unsuccessful, and the 2003 tender invitation was won by the joint bid of Toshiba/CMP.

I have already rejected (when addressing Mr van Galen’s evidence) the claimant’s case that Mr van Galen’s offer, on 16 June 2004, of a rebate (or discount) of 50% in the fourth year on the device rental prices applicable to a 3-year term was because he had been told by Ricoh UK that CMP offered a 50% discount in the fourth year. The claimant has failed to make out any disclosure of this information by Ricoh UK to RIA or any use of this information by RIA (in the person of Mr van Galen). Indeed, I am not satisfied that the claimant has made out his case that this was confidential information at all, still less that it was CMP’s confidential information. On the evidence such a discount was pretty commonplace in the market. Indeed, when Mrs Neame came to prepare her “Calculation of Loss of Earnings” (F2/382-5), setting out CMP’s position on the likely damage it would suffer as a result of Ricoh UK’s decision to bid against it (which was disclosed to Ricoh UK in or about December 2003, as related at paragraph 57 of Mrs Neame’s 1^st witness statement), I note that, whilst it was considered inappropriate at that stage “to reveal the full details of this loss calculation as it would further jeopardise CMP’s position in the bid process”, Mrs Neame did see fit to include reference to “CMP’s policy in the UK to offer the customer year four and five rental costs at a value equal to 50% of the original three-year rental costs”. In any event, any damages referable to this alleged breach would, on any view, have been purely nominal since it came (1) almost at the very end of the last phase of the bidding process, and (2) shortly before CMP/Toshiba were selected as the preferred bidders in place of RIA. I therefore propose to say no more on the subject of this alleged breach.

The claimant alleges that at some time after 23 October 2007 Ricoh UK disclosed to RGSE the service price which it charged Bombardier for one particular device (0.88 pence per sheet for an AF 2045), and that RGSE misused this information when preparing its revised service price proposal for Bombardier in response to the 2007 invitation to tender. This allegation must be viewed against the background that (1) on the claimant’s own evidence, CMP was no longer pitching for new business after December 2006; (2) Mr Koelmel of RGSE had been informed by telephone on 5 October 2007 (F11/3068) that it had won the 2007 invitation to tender, based on service prices charged by Ricoh in Germany; although pricing levels remained the subject of further negotiations, with a letter of intent (F11/3126-8) only being signed on 30 November 2007, and the Supply Agreement only being concluded on 19 May 2008; and (3) by 26 November 2007 (F11/3120) Ricoh UK had agreed to match the German service pricing.

On 23 October 2007 Ms Helen Khor, a pricing analyst at RGSE, sent an email containing a “service price request”, and attaching Ricoh Germany’s benchmark service pricing (F11/3078A-D), to various Ricoh national operating companies, including Ricoh UK. At this time, according to Mr Koelmel (at T6/956), Bombardier was trying to achieve consistent service pricing based on the German benchmark pricing. On 23 October 2003 Mr Joel Thura (of Ricoh UK) sent an email (F11/3081-2) to Mr Anthony Willis (with copies to another employee of Ricoh UK and to Mr Roger Gretton) stating:

“The prices quoted by Germany are very low on many key models, for example an MP4500 is about 0.34p we currently charge 0.88 for an AF2045 in Bombardier. I need guidance on whether or not we can be seen accepting such low pricing, or do we stay with our standard RGS pricing.”

In fact, Ms Khor had been wrong to include reference to the MP4500 in the German benchmark pricing since this particular device had been removed from the product portfolio by 25 September 2007 (see F11/3052); and it was omitted from the eventual global price list. On 24 October 2007 (F11/3081-1) Mr Gretton sent an email to Mr Thura (copied to Mr Willis) stating:

“I am not sure what the relationship is with CMP, this is a new RGS win and will be serviced direct. I am happy with all prices except the SP4100N were [sic] we need a price of ¬0.0170.”

I note that the German service price stated at F11/3078C for an SP4100N was 0.0110 euros, which was the service price eventually adopted for the UK, as set out in the global price list (F11/3131F) submitted to Mr Pirke (of Bombardier) with Mr Koelmel’s email of 9 December 2007 (F11/3130-1), as explained by Mr Koelmel in re-examination at T6/993-4.Mr Willis responded to Mr Gretton’s email thanking him, and stating that Mr Thura would be there on Friday and would process the matter then. Thereafter, the stream of emails runs dry. I have heard no evidence from Ms Khor, Mr Thura, Mr Gretton or Mr Willis.

The claimant relies upon the sending of Mr Thura’s email to Mr Gretton as a disclosure to a non-Ricoh UK employee. I reject that allegation. Although Mr Gretton described himself as the Customer Services Director of NRG UK (another Ricoh entity within the UK), the evidence of Mr Pearce (at T5/787) was that by October 2007 the activities of the two Ricoh entities (NRG UK and Ricoh UK) had been merged, and that Mr Gretton was acting as the customer services director for Ricoh UK as well as for NRG UK; compare also the evidence of Mr Koelmel at T6/963, who did not distinguish between the two entities. The integration of Ricoh UK and NRG UK also explains the role of Mr Kevin Jarrett (apparently of NRG UK) who, according to Mr Koelmel (at T6/965), was acting as the account manager for Ricoh UK. I am satisfied on the evidence that Mr Gretton received the email wearing his Ricoh UK “hat”. This email chain was therefore internal to Ricoh UK.

The claimant originally invited the court to infer that Mr Thura subsequently disclosed to Ms Khor of RGSE details of CMP’s service pricing for Bombardier in the UK, and that RGSE misused that information in preparing its revised service price proposal to Bombardier in connection with the 2007 invitation to tender. By the conclusion of the trial, however, Mr Vanhegan’s submissions ranged more widely; and he invited the court to find that Ricoh UK (acting through Mr Jarrett) had supplied RGSE (in the person of Mr Koelmel) with confidential information about the service pricing being charged by Ricoh UK to Bombardier. I reject both the narrow and the wider invitations, for which I find no sound basis in the evidence.

Ms Khor’s email had asked for all “price requests” to be sent to Mr Hamish Patel, the senior pricing analyst. Mr Patel’s evidence (at T6/926-9) was that neither he nor his team had received anything back from Ricoh UK in response to Ms Khor’s email, or anything indicating any problem with service pricing in the UK. Mr Gretton’s email had expressed himself to be “happy with all prices except the SP4100N were [sic] we need a price of ¬0.0170”. There was therefore no reason for Mr Thura to disclose any service pricing to RGSE other than that for the SP4100N. Mr Vanhegan relies upon emails from Mr Koelmel to (1) Mr Jarrett dated 14 November 2007 (F11/3114-5), and copied to Mr Beelen, referring to a “pricing issue” in the UK over the “service click price” for the SP4100n, which was said to be 35% higher in the UK than in Germany; and (2) Mr James Brown (of NRG Benelux) dated 21 November 2007 (F11/3119), and copied to Mr Patel and Mr Beelen, referring to Mr Koelmel’s request for support from Mr Jarrett on “the service pricing issue for UK”. Mr Vanhegan also relies upon Mr Koelmel’s admissions in cross-examination (at T6/965-971) that (1) for him to have been worried about the differential pricing, RGSE must have been told by Ricoh UK what the actual service prices were in the UK; (2) that he did not “officially” ask Ricoh UK for any pricing information because he knew that this was confidential information which was not freely available to him, but that he had asked Mr Jarrett unofficially, and as a colleague, for such information; and (3) that Ricoh UK provided him with service pricing information to help RGSE respond to the 2007 invitation to tender. However, Mr Koelmel also said (at T6/969-970) that he did not know whether this was “the service pricing which Bombardier were being charged by CMP for its devices in the UK”.

I accept Mr Vanhegan’s submission that Ricoh UK did disclose its service pricing to RGSE for the purposes of RGSE’s negotiations with Bombardier over service pricing in connection with the 2007 invitation to tender. But I do not find that such disclosure extended to the actual service pricing which CMP had negotiated on behalf of Bombardier. On a close analysis of the documents, I accept Mr Hollander’s submission that the service pricing disclosed by Ricoh UK was its recommended service price mandate applicable generally to all international tenders. The price quoted in the UK for the SP4100n device which was set out in the pricing sheet (F11/3115) attached to Mr Koelmel’s email of 14 November 2007, and which was 35% above the quoted German service price of 0.0110, was not the figure of 0.0170 quoted by Mr Gretton in his email of 24 October 2007 but 0.0148. This latter figure is identical to the standard Ricoh UK recommended service mandate price which appears in the spreadsheet at F11/3111B-C, and was explained by Mr Patel at paragraph 20 of his witness statement. In cross-examination (at T6/930-1), Mr Patel confirmed that the figures in the pricing sheet attached to Mr Koelmel’s email “would have come from service mandates that we collect from all of the operating companies”. I accept that evidence. I find that the only service pricing communicated to RGSE by Ricoh UK was the pricing contained in its recommended service price mandate applicable generally to all international tenders. That conclusion accords with the commercial realities since, according to Mr Patel, the mandate price represented each operating company’s minimum click price. Even assuming that the price of 0.0170 quoted by Mr Gretton represented the service price actually charged to Bombardier for a SP4100n device by Ricoh UK, there is no evidence that this was ever communicated to RGSE. Thus, the only service price information which I find was communicated by Ricoh UK to RGSE was Ricoh UK’s own confidential information. It was not CMP’s confidential information. In the event, it was the German service price which eventually prevailed, and was adopted for the purposes of the Bombardier global contract: see the price list at F11/3131F, as was confirmed by Mr Koelmel in re-examination at T6/991-4. Thus, as Mr Hollander observes, any disclosure or misuse of confidential information would have given rise to no possible commercial advantage to RGSE in any event since Ricoh UK simply adopted the German position on service pricing.

For these reasons, I find that no information concerning the service pricing negotiated by CMP on behalf of Bombardier in respect of devices supplied and serviced by Ricoh UK was disclosed to RGSE, or misused by RGSE (or any other Ricoh entity), for the purposes of the 2007 invitation to tender. Had it been necessary to do so, I would have accepted the submission that such information was CMP’s confidential information, at least during the period (before December 2006) when CMP was still pitching for new business, on the footing that, in the course of furthering its own commercial interests, CMP had made a sufficient contribution to the conclusion of the agreements under which Ricoh UK had supplied devices to Bombardier, and provided for their ongoing servicing, to justify the imposition of a duty, recognised by the courts, and owed to CMP (and thus to the claimant), to keep the information secret, and entitling them to restrain its unauthorised use. However, I entertain serious reservations as to whether it would have been appropriate to continue to regard such pricing information as CMP’s confidential information once CMP had ceased to pitch for new business after December 2006. At that point, it seems to me that the information ceased to have any commercial value to CMP sufficient to justify its continuing protection. I do not consider that it would be sufficient for the claimant to assert that the information had value to CMP because it would have been entitled to levy a charge for its disclosure and use. That argument seems to me to be entirely circular, because it presupposes that the information is capable of protection as confidential information. But, in order for information to qualify for protection as confidential information, it seems to me that it must have some commercial value, independently of its status as confidential information. However, in view of the conclusion at which I have arrived on the issues of disclosure and misuse, it is unnecessary for me to consider this aspect of the matter any further.

I now turn to the allegations concerning the Davenport and Wilson spreadsheets (respectively F11/3231-5 and F14/4094-4102). The former was emailed to Mr Stuart Hammond on 18 January 2008 and the latter on 19 May 2008. Mr Hammond described himself in emails (see F11/3236) as “International Account Manager, Ricoh Global Services – UK”. According to Mr Koelmel’s email to Mr James Brown of 21 November 2007 (F11/3119), Mr Hammond was then the nominated account manager for Bombardier in the UK. Mr Koelmel explained (at T6/967-8) that he acted as “a local contact for Bombardier locally”. Ms Yilmaz explained (at T7/1083-4) that Ricoh Global Services – UK “was a team that worked on the accounts for our Ricoh Global Services Europe, on the UK sites”. Mr Nordgren (at T7/1108-9) described Mr Hammond as “the local account manager working for Ricoh UK”; and he expressed the view that the description “Ricoh Global Services – UK” was “a misleading title”, remembering “at the time querying why, in my mind, the local operating company would call itself global and international because it is misleading for the customer”. In paragraph 10 of his first witness statement, Mr Hammond described himself as “having responsibility for the Bombardier UK account pursuant to the global contract”. Mr Hollander submits that the evidence is that Mr Hammond was part of Ricoh UK, so that disclosure to him was not disclosure to anyone outside of Ricoh UK. On the evidence, I am satisfied that that is correct; although I am also satisfied that both spreadsheets were disclosed to Mr Hammond otherwise than in connection with the fulfilment of the Trading Agreement, and thus for purposes falling outside the purview of the Confidentiality Agreement. Although strictly this constituted a breach of the terms of the Confidentiality Agreement, I am satisfied that no actual loss or damage was thereby caused to CMP absent any misuse of this confidential information.

The Davenport Spreadsheet was disclosed to Mr Hammond because he had requested a complete download of all existing Ricoh/CMP devices supplied by Ricoh UK to Bombardier: see Mr Hammond’s email of 18 January 2008 to Mr Khee An Ho, Ricoh UK’s supply chain manager (F11/3236). The Davenport spreadsheet listed the names of all CMP/Ricoh UK customers in the UK (including Bombardier), and it contained Ricoh UK’s deal and serial numbers, the model of each device, and its delivery and installation dates. Since, by the time it was sent, a letter of intent had already been signed by Bombardier and RGSE, I do not consider that the limited information set out in the Davenport spreadsheet contained any information of commercial value to RGSE, even if it had been disclosed to that entity. It was, in any event, effectively superseded by Mr Pearce’s team’s audit of the Derby site in April 2008, and the later Fisher and Wilson spreadsheets.

The Wilson spreadsheet was supplied in response to an email request by Mr Hammond (F14/4094) for Mr Wilson to “run a detailed report for CMP/Bombardier…I am particularly looking for service click and print volumes etc…” In paragraph 20 of his 1^st witness statement, Mr Hammond says that he cannot now recall why he requested this report, but “it is possibly [sic] I would have wanted to review the service/click prices and volumes as a sanity check on our recommendations for the replacement devices”. It is clear from this witness statement that (consistently with the other evidence) all of Mr Hammond’s pricing proposals were determined by reference to the prices which had already been agreed at a global level; and so I conclude that Mr Hammond was not looking for information for the purpose of quoting prices to Bombardier. I find that what Mr Hammond was really looking to receive from Mr Wilson was information about the use made of each existing CMP device sited at Bombardier’s UK sites, in terms of monthly print volumes, and also about Bombardier’s existing printing costs, in order to assist Mr Hammond in making recommendations about the number of replacement devices that Bombardier would require, and assessing its resulting future printing costs, and the savings which the new devices would be likely to generate. As Mr Pearce and Ms Yilmaz both acknowledged (at T5/812-3 and T7/1090), the spreadsheet of device information which had been provided by Mr Mel Fisher (of Bombardier) to Ms Yilmaz on 15 May 2008 (F14/4066-9) did not tell the reader how much use was being made of any individual device.

It is clear from the terms, and the form, of Mr Hammond’s email to Mr Wilson, and I so find, that it was drafted with the assistance of the Davenport spreadsheet. There is, however, no evidence that Mr Hammond (or anyone else within Ricoh) made any more extensive use of the Davenport spreadsheet; and I find that no further use was made of it. The limited utility of the Davenport spreadsheet is confirmed by Mr Hammond’s request to Mr Wilson to produce a more detailed report. The information within the Wilson spreadsheet was far more extensive than the Davenport spreadsheet, containing (in addition) the location and contact details for each device, a reference to the servicing dealer, service price, and usage information (including multiple meter readings). I am satisfied on the evidence as a whole that (notwithstanding Mr Pearce’s reservations) the information contained within the Wilson spreadsheet was potentially of value to RGSE for the purposes of implementing the Supply Agreement with Bombardier within the UK. Mr Nordgren accepted (at T7/1106) that “the volumes are of interest” (whilst adding that “the pricing is of no interest at this stage”). Even Mr Pearce was prepared to acknowledge (with reservations) in cross-examination (at T5/824; and see also T5/829) that the information, which he accepted (at T5/817-8) was “incredibly detailed” and “comprehensive”, might have been requested and used so that RGSE could make an informed decision as to which devices should properly be used to replace the particular CMP devices.

Mr Vanhegan submits that Ricoh (and for this purpose it matters not which Ricoh entity it was because this is an allegation of misuse and not mere disclosure) misused the confidential information within the Wilson spreadsheet. Relying upon Mr Hammond’s 1^st witness statement, Mr Vanhegan submitted (at T8/1264-6) that the Wilson spreadsheet was essential for RGSE to be able to exchange each of the CMP devices by the end of June 2008. What is said to have happened is that RGSE decided to take a short cut: rather than spending its own time and money by throwing bodies into Bombardier to perform a full audit, it just used the Wilson spreadsheet as a check. Mr Vanhegan submits that RGSE deliberately used CMP’s information to give it the advantage of providing replacement devices more speedily than it could have done unless it were to have spent a lot more time on putting staff in to Bombardier to conduct an audit to find out about the print volume and usage of the devices; and that this was done at CMP’s direct expense because if RGSE completed the exercise by the end of June, then the CMP devices could be taken out. Not so says Mr Hollander: Mr Hammond had simply got it wrong in his 1^st witness statement when he said (at paragraph 39) that he “would have reviewed Bombardier’s existing service costs of the current Ricoh devices in situ to calculate the current costs analysis”; and when this was pointed out by Mr Pearce (who was not challenged about this), Mr Hammond retracted his earlier evidence in his 2^nd witness statement. Mr Hammond concludes his 2^nd witness statement by stating that Mr Pearce’s team’s audit of Derby “represents the final view in respect of Bombardier’s current fleet and therefore this information would have been of much more use to me than that contained in the Wilson Spreadsheet”.

Neither Mr Pearce nor Ms Yilmaz has any personal knowledge of what Mr Hammond did with the Wilson spreadsheet (see T5/821-2 and T7/1093). In cross-examination (at T7/1118), Mr Nordgren was driven to accept that Mr Hammond had used the Wilson spreadsheet to assess the print volumes being produced by the existing CMP devices at Bombardier’s UK sites, so that RGSE’s proposals for the replacement machines could adequately specify the right replacement machines. I find that Mr Hammond did indeed make some use of the Wilson spreadsheet for these purposes. I can see no sensible reason for Mr Hammond to have asked Mr Wilson for information about print volumes the working day after Ms Yilmaz had sent her email to Mr Hammond (F14/4070-1), disclosing the proposal to replace all CMP/Ricoh devices with a colour MFD by the end of June (with the exception of Derby, which was to be rolled out as planned) due to the imminent expiry of the existing device leases at the end of June 2008, unless Mr Hammond was proposing to make some use of any resulting information for the purpose of assisting in the implementation of that proposal. However, I also find that (as he states) Mr Hammond used the Wilson spreadsheet only by way of a cross-check against other information that was available to him; and that the information about print volumes was of only very limited utility. I accept Mr Hammond’s evidence (at paragraph 23 of his 1^st witness statement) that the information contained in the Wilson spreadsheet “added very little extra information to that which we had already both from the Derby audit (in respect of Derby) and provided by Bombardier”. I also accept Ms Yilmaz’s evidence (at T7/1093) that “it was a very simple quick and dirty solution that [Bombardier] wanted. They were very clear that they wanted MFD colour, so it was almost academic what the current issuings [sic: probably a transcription error for usages] were.”

However, the only information from the Wilson spreadsheet which Mr Hammond used was that relating to print volumes. This was derived from the meter readings. In my judgment, this was not CMP’s confidential information; and the claim based upon its (limited) misuse therefore fails.

The evidence as to the provenance of these meter readings was not entirely clear. By clause 3 (iv) of the Trading Agreement (F1/135), Ricoh’s duties under that Agreement included providing management and billing information data (including meter readings) to CMP as required. In unchallenged evidence (at paragraphs 18 to 20 of her 1^st witness statement) Mrs Neame explained that, in theory, it was Ricoh UK’s job to collect the meter readings for every device; but often it did not fulfil this role adequately, and it fell to CMP to collect much of this “crucial” information itself. Mr Bailey made the same point at paragraph 18 of his witness statement. Mr Rollings acknowledged (at T6/880) that in 2007 CMP was providing Ricoh UK with meter readings; and this was the subject of a critical email he sent to Mr Willis on 10 August 2007 (F9/2591) identifying as “one issue” CMP’s failure to “send meter readings on time or accurately”. An undated letter from the claimant to Bombardier at F21/6025-7 suggests that before CMP’s web-site acquired the facility to receive meter readings, meter reading cards were sent out by, and were returned to, Ricoh UK. This letter from the claimant emphasised the importance of providing accurate meter readings, so that the end-user’s billings for copy charges were correct. The witnesses were unsure about precisely when the facility for CMP’s website to request and receive meter readings was up and running, but they thought it was in 2002/3. An email dated 14 June 2002 (F2/313) from Ricoh UK to the claimant, attaching the meter readings to 31 May 2002, states that there were a number that Ricoh UK had not invoiced “because they are either a query or the customer has not provided us with a true reading for some time”, indicating that Ricoh UK was still being provided with meter readings by the end-user at that time.

The defendants’ position is that, at least until the establishment of CMP’s website, it was Ricoh UK which was primarily responsible for taking the meter readings. Although there may have been occasions when CMP provided the meter readings, it is said that it is not clear how often that occurred. After the establishment of the website, the defendants say that it is far from clear how often this was used for the provision of meter readings. Mr Hollander submits that the effect of Mr Hoskins’s evidence is that the vast majority of meter readings continued to be carried out by, or through, Ricoh UK and its service engineers, rather than by CMP. Mr Hollander submits that the claimant cannot show that any particular meter reading was taken by CMP; and even if he could, it should not be treated as CMP’s confidential information since CMP were merely taking the readings as agent for Ricoh UK and/or the end-user, and not as principal. This is because Ricoh UK was responsible for taking the meter readings, and these readings were required to enable it to bill the end-user for the use and servicing of its devices.

The claimant’s primary case is that whilst Ricoh UK was contractually obliged to provide CMP with the relevant meter readings, it failed to do so; and CMP ended up gathering this information itself, at least after about 2002-3. Such information was CMP’s confidential information, which Ricoh UK was only entitled to use for the purposes of the Trading Agreement, and not for the purpose of competing with CMP. Further, the fact that Ricoh UK may have collected the meter readings itself, or through one of its service engineers, does not mean that the information was freely in its hands, to do with as it pleased. Ricoh UK had only obtained the information as a result of its dealings with CMP’s customer as a result of CMP requesting Ricoh UK to provide the devices and servicing to CMP’s customer. It is said that the information had been provided to Ricoh UK for a limited purpose only, and it might only use it for that purpose. Reliance is placed upon the decision of Havers J in Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97, and paragraph 27-13 of Clerk & Lindsell on Torts,20^th ed (2010).

On this issue, I prefer the submissions of Mr Hollander. On the evidence, it is clear that some of the meter readings were derived from information provided by CMP and the remainder from other sources (i.e., Ricoh UK, its service engineers or the end-user). However, the evidence does not enable the court to identify the precise provenance of any particular meter reading. Whatever their provenance, however, I do not consider that meter readings can properly be regarded as CMP’s confidential information for the purposes, and within the purview, of the Confidentiality Agreement. The Confidentiality Agreement was entered into against the background of the Trading Agreement, which specifically imposed a duty upon Ricoh UK to provide the management and billing information data, including meter readings. I do not consider that CMP can be said to have made a sufficiently relevant contribution to the creation of the meter readings which it did not itself take or receive to render such data CMP’s confidential information. The fact that Ricoh UK may have fallen down in the discharge of its duty to obtain certain of the meter readings, leaving CMP to provide some, and maybe many, of them, might have afforded CMP with a claim in damages against Ricoh UK; but it cannot, in my judgment, render the meter readings themselves CMP’s confidential information. They were providedto enable Ricoh UK to fulfil its own obligations under the Trading Agreement, and not as part of the contribution which CMP was either required to make, or which it was envisaged that it would make, to the fulfilment of its trading relationship with Ricoh UK. Nor do I consider that the advent of the facility for CMP’s website to request and receive meter readings effected any alteration to the original position. In my judgment, the claimant has not demonstrated that CMP had made a sufficient contribution, in the furtherance of its own commercial interests, to the creation of the body of data provided by the meter readings to justify the imposition of a duty, recognised by the courts, and owed to CMP (and thus to the claimant), to keep the information secret, and entitling them to restrain its unauthorised use. The Ackroyds case is very different from the present since it concerned the misuse of information and experience gained by the defendant from using a special tool manufactured to the order of, and belonging to, the plaintiff, which it had supplied to the defendant specifically for the purpose of enabling it to fulfil a contract to manufacture swizzle sticks, in the form of a Neptune’s trident, to be supplied by the plaintiff to a steamship company, for use on its passenger vessels. The passage from Clerk & Lindsell merely confirms the self-evident proposition that an obligation to treat certain information as confidential may arise from a specific contractual provision or from the context of the relationship existing between the parties. It does not seek comprehensively to prescribe, or to define, the information to which such an obligation may extend; and it is therefore of no real support for this aspect of the claimant’s case.

Since I have rejected the claimant’s case that RIA used CMP’s confidential information, contained within the Hoskins spreadsheet, when preparing its response to Bombardier’s 2003 tender invitation, it is not strictly necessary for me to consider the claim for damages for the loss of a chance. But lest I am wrong, and since findings of fact are required, I proceed to do so. My conclusions may need to be considered by an appeal court; they may even be relevant to the decision whether or not either party seeks permission to appeal. For this purpose, I proceed on the hypothesis that (contrary to my findings of fact) RIA used CMP’s confidential information, contained within the Hoskins spreadsheet, when preparing its response to Bombardier’s tender invitation in 2003.

The law applicable to the assessment of damages for the loss of a chance, where the particular contingency depends on the hypothetical actions of a third party, is summarised at paragraph 26-044 of Vol 1 of Chitty on Contracts, 30^th ed (2008), (Chitty) in the following terms:

“Where the claimant claims that, in the absence of the breach of contract by the defendant, a third party would have acted in a particular way, so as to benefit the claimant, he need not prove that hypothetical action on the balance of probabilities. Provided that the claimant can prove that in the absence of the breach there was a ‘real’ or ‘substantial’ (not a speculative chance) of the third party’s action, the court must assess the chance of that action resulting (usually as a percentage) and then discount the claimant’s damages for his loss by reference to that percentage.”

Mr Hollander submits that, notwithstanding the decision of Roth J on the summary judgment application, the claim for damages for the loss of a chance is impermissible as a matter of law, on a true analysis of the Court of Appeal’s decision in BMI Baby, and a proper application of the decision of the majority of the Court of Appeal in Lavarack. Mr Vanhegan’s preliminary submission is that this argument is simply not open to the defendants. He says that this issue of law was finally, and (given that there was no appeal) conclusively, determined by Roth J: the matter is therefore said to be res judicata. Mr Vanhegan points to the terms of paragraph 79 of the judgment, which reads:

“I reject Ricoh’s submission that the claim which Mr Jones seeks to advance for damages sustained by CMP by reference to the 2003 ITT fails as a matter of law. There are obviously factual issues involved in seeking to establish the damages and there may be issues of remoteness for at least part of the claim, but those are not matters for summary determination.”

I reject Mr Vanhegan’s preliminary submission that this issue is res judicata. Mr Hollander rightly directs my attention to paragraph [109] of the judgment of the Court of Appeal (delivered by Moore-Bick LJ) in Svenska Petroleum Exploration AB v Lithuania (No 2) [2006] EWCA Civ 1529, [2007] QB 886. There, whilst acknowledging that if, on an application under CPR 24, it is finally determined that a claim (or a defence) is bound to fail as a matter of law, that will give rise to an issue estoppel, the Court of Appeal recognised that

“…if an application under Part 24 is dismissed on the grounds that there is a real prospect of success at trial, there will usually have been no decision of that kind at all.”

Paragraph 2 of Roth J’s order (A9/127) merely dismissed Ricoh UK’s application for summary judgment in respect of the claim for breach of clauses 2 and/or 3 of the Confidentiality Agreement in connection with the 2003 invitation to tender. In my judgment, the judge did not purport finally to determine, as a discrete, and preliminary, issue of law, whether or not the damages claimed were irrecoverable as a matter of law (because of the “minimum performance” or “least onerous obligation” rule established in Lavarack), notwithstanding that Ricoh UK was under no obligation to submit a joint bid with CMP to Bombardier. Rather, Roth J was merely deciding that it could not be said that claimant had “no real prospect of succeeding” on the damages claim for the purposes of CPR24.2 (a). In my judgment, that follows from the judge’s citation of the principles which apply on a defendant’s application for summary judgment at paragraph [27] of his judgment. As Mr Hollander observes, a decision that a head of claim has a real prospect of success at trial (and thus lives to fight another day) cannot be equated to a finding that, subject to proof of the necessary factual elements, the claim will succeed at trial. Had Ricoh UK sought to appeal this part of Roth J’s order, in order to have successfully resisted the appeal it would have been sufficient for the claimant merely to have demonstrated that he had a realistic, as opposed to a fanciful, prospect of succeeding on the issue of law at trial; he would not have had to demonstrate that, subject to proof of the necessary facts, his claim was bound to succeed as a matter of law.

Therefore I must address, on its merits, Mr Hollander’s submission that, contrary to the conclusion reached by Roth J, damages for breach of the negative obligations not to disclose or to misuse CMP’s confidential information cannot, consistently with Patten LJ’s analysis in BMI Baby (at paragraphs [64] and [79]), involve a fact-sensitive inquiry, conducted by reference to benefits which were themselves no part of the contract-breaker’s contractual obligations. Mr Hollander submits that the effect of the decision in BMI Baby is to re-affirm, in authoritative terms, the principle that, as a matter of law, damages for breach of contract exclude any assessment of the value of the contract to the innocent party, conducted by reference to benefits or assumptions which were themselves extra-contractual. It is said that the explanation of Lavarack provided in the reasoned judgments of both Patten and Toulson LJJ (with which Mummery LJ simply agreed), and the reason for it being distinguished in other cases, particularly those relating to the award of discretionary bonuses, is premised on that fundamental point. Roth J is said to have lost sight of the fact that he was embarking upon the impermissible task of going way beyond performance of the contract: by looking at what would have happened if there had been a joint CMP/Ricoh bid, he was doing precisely what had been forbidden by the Court of Appeal in Lavarack and BMI Baby. Where the obligation broken is a positive obligation, the BMI Baby analysis is engaged, because the court is concerned to determine the proper hypothesis against which, in law, damages fall to be assessed. But where the obligation is negative, the court approaches the assessment of damages on the simple basis that the negative obligation has been broken, and it does not look at what might have happened if it had not been broken, because that hypothesis is not the legal or factual consequence of the breach of contract, but involves extra-contractual assumptions. Mr Hollander gives the example of someone who goes to work for a competitor of his former employer in breach of a restrictive covenant not to do so given to that employer. He says that damages may extend to the loss of business to the former employer which results from the competitor taking his business; but it is irrelevant that the former employee accepts in evidence that, if he had not gone to work for the competitor, he would never have resigned from his former employment. That may be the case; but it is said to be no part of the damage which flows in law from the breach of contract. If this analysis is correct, Mr Hollander submits that the claimant is not, in law, entitled to hypothesise that, if Ricoh UK had not been in breach of its negative obligations, it would have made a joint bid with CMP.

Mr Vanhegan relies upon the conclusion reached by Roth J, after an exhaustive review of the authorities (including both Lavarack and BMI Baby, to which Roth J refers in his judgment as Durham Tees Valley Airport), at paragraphs [74]-[75] of his judgment, as follows:

“The fundamental question, as the judgments in Durham Tees Valley Airport emphasise, is to place the injured party in as good a position as he would have been in had the contract not been breached. As Patten LJ observed, this involves a counter-factual assessment. In that regard, there is in my view a basic distinction between cases involving the breach of a positive obligation and cases involving the breach of a negative obligation. Where a contract is repudiated that required the defendant to perform a positive obligation (i.e. to confer a benefit on the claimant), the value of that benefit that has not been (or will not be) received establishes the measure of the claimant’s loss. The scope of the benefit is determined by the contract, properly analysed, and the claimant cannot also seek to recover a further benefit which goes beyond the contractual obligation (such as a potential increased salary in Lavarack; or a potential extended borrowing facility in Malvenna). Where the level or degree of benefit depends upon the manner in which defendant would perform his positive obligation (and if the contract does not expressly give the defendant alternatives), it is assessed on the basis of the way in which the defendant would probably have performed it (as with the obligation to publish the book in Abrahams v Reiach; or to operate two aircraft from the airport in Durham Tees Valley Airport). But none of this addresses the issue of how damages are to be assessed in the very different case of breach of a negative obligation. There, the court is not concerned with determining a benefit which the defendant should have provided. The counter-factual is the case where the defendant would not have done what he did do. The focus of inquiry is accordingly on the loss that has been caused by the defendant acting as he did, not on the benefit that would have been provided if the defendant had acted as he should have done.

Hence in the present case, applying the established measure of damages, analysis of the loss caused by breach of the obligation under the Confidentiality Agreement that Ricoh would not use the ‘Confidential Information’ for its own purposes can be approached only on the basis of considering what use has been made by Ricoh of the protected information; and then asking what would have happened as regards CMP’s business if it had not been so used (i.e. the counter-factual). That analysis, it seems to me, can be conducted only on the basis of the balance of probabilities. It would be artificial to exclude from that analysis the probable conduct of Ricoh, on whom the business of CMP at the time was very dependent. And I consider that it would be still more artificial if the court had to leave out of account conduct by Ricoh that is plausibly alleged to have been in its own commercial interests, and to assume that it would have, to adopt the expression used by Diplock LJ in Lavarack, cut off its nose to spite its face. Put another way, I can see no reason in principle or on authority why the court should not, following the language of Patten LJ in Durham Tees Valley Airport,assume that the parties would have ‘acted in good faith although with their own commercial interests very much in mind’.

The claimant adopts Roth J’s analysis, and says that it was correct.

On this aspect of the case, I reject Mr Hollander’s submissions. I do so for two reasons. First, whilst I am satisfied that he is not prevented from advancing the submission by an issue estoppel, both the principle of legal certainty, and the deference which is due to the reserved judgment of a judge sitting at the same level of the judicial hierarchy, dictate that I should not accede to the submission that I should depart from his decision unless I am satisfied that it is clearly wrong. It is undesirable, and contrary to the overriding objective of enabling the court to deal with cases justly, that a party should be entitled to revisit, and to reargue, a point of law which it has already lost on the basis of the same authorities. (It may be different if reliance is placed upon new authorities.) Here, I am not satisfied that Roth J got it wrong. Indeed, it seems to me that, insofar as the “minimum performance” or “least onerous obligation” principle is engaged at all, his decision was correct; and I note that in the 2^nd Supplement to the 18^th edition (up-to-date to 20 August 2011), after an exhaustive discussion of Roth J’s “careful analysis” (at paragraphs 8-095E to 8-095I), the author of McGregor on Damages concludes that Roth J reached the “correct result”, the only reservation expressed being whether his reasoning is necessarily dependant on the distinction between positive and negative obligations.

Secondly, and more fundamentally however, I am not persuaded that the “minimum performance” or “least onerous obligation” principle is engaged at all in the present case. As the editors of Chitty observe, in a sentence immediately preceding the passage from paragraph 26-044 cited above:

“This situation arises where a particular contingency depends on whether a third party would have acted in a certain way.”

Here, one is concerned, not with the hypothetical actions of the contract-breaker (Ricoh UK), but rather with the hypothetical conduct of a third party (RIA). The distinction in law between these two entities permeated Mr Vanhegan’s submissions on the issue of unauthorised disclosure. In his majority judgment in Lavarack (at 294B-D) Diplock LJ formulated the general rule which he understood himself to be applying in the following terms:

“…in an action for breach of contract a defendant is not liable for not doing that which he is not bound to do…The law is concerned with legal obligations only and the law of contract only with legal obligations created by mutual agreement between contractors – not with the expectations, however reasonable, of one contractor that the other will do something that he has assumed no obligation to do. And so if the contract is broken or wrongly repudiated, the first task of the assessor of damages is to estimate as best he can what the plaintiff would have gained in money or money’s worth if the defendant had fulfilled his legal obligations and had done no more.” [Emphasis supplied]

In my judgment, the rule is based upon the assumption that a contract-breaker will act in his own best interests; and it has no application to the hypothetical actions of a third party. I note that Russell LJ, the other member of the majority in Lavarack, was clear (at 298F-G) that:

“…it has never been held that the plaintiff can claim any sum on the ground that the defendant might after the repudiation date have voluntarily subjected himself to an additional contractual obligation in favour of the plaintiff. That is not the law nor, with respect, do I think it would be in accord with the sense of the matter so to hold: an employer whose attitude to the employee has reached the stage that he is prepared to sack him out of hand is, to say the least, an unlikely source of future generosity.”

One may question whether such an attitude merits the application of a blanket rule of law, operating by way of an irrebuttable presumption, governing the hypothetical future actions of the contract-breaker: even Diplock LJ was prepared to recognise (at 295G) that one must not assume that a contract-breaker would “cut off his nose to spite his face”, and so control events extraneous to the contract as to “reduce his legal obligations to the plaintiff by incurring greater loss in other respects”. But be that as it may, in my judgment the rule identified, and applied, in Lavarack has (despite references to “the loss of a chance” by Lord Denning MR, dissenting, at 288B, and by Diplock LJ at 297E-F) no application where the assessment of damages for the loss of a chance is dependant upon the hypothetical actions of a third party, rather than the actual contract-breaker. Indeed, were I to uphold Mr Hollander’s submissions on this point, I consider that it would be difficult to identify many cases in which damages for breach of contract would ever fall to be assessed by reference to the loss of the chance that, but for the breach, a third party would have acted so as to confer a benefit upon the innocent party, for (apart from the example of earning tips from customers exemplified by the case of Manubens v Leon [1919] 1 KB 208, cited by Diplock LJ in Lavarack at 295C-D), such benefits are always likely to be extraneous to the contract between the parties. In my judgment, the appropriate rule of law limiting the entitlement to such damages is to be found in the accepted principles governing the remoteness of damages in contract. There is no further artificial limiting rule of law, as contended for by Mr Hollander. To hold otherwise would be to subvert the fundamental principle underlying the established measure of damages in the case of a breach of contract (as formulated by Lord Blackburn in his classic statement in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39, and acknowledged by Patten LJ at paragraph [63] of BMI Baby) that it is “the sum necessary to put the injured party in the same position as he would have been in had he not sustained the wrong”.

For these reasons, I conclude that it is indeed open to the claimant, as a matter of law, to claim damages for the loss of the chance that had (as I assume, and contrary to my findings of fact) Ricoh UK and RIA not breached the Confidentiality Agreement by misusing CMP’s confidential information in its response to the 2003 invitation to tender (or had they appreciated that they were not entitled to make such mis-use of CMP’s confidential information), RIA would have bid jointly with CMP, and that such bid would have been successful. It is, however, pertinent not to lose sight of the fact that the claimant’s reason for seeking damages on this basis is that, since RIA ultimately lost the tender to a joint bid submitted by CMP and Toshiba, any assessment of damages on a more conventional basis would result in a purely nominal award.

I have no difficulty in concluding, on a balance of probabilities, that had RIA bid jointly with CMP, their bid would have been successful. That is supported both by the impartial assessment of Mrs Cartledge (see paragraph 53 of her 2^nd witness statement) and by the facts (1) that the two preferred bidders were RIA and CMP, and (2) that the ultimately successful bid was the joint bid from CMP and Toshiba. Indeed, there is force in Mr Vanhegan’s submission that the success of a joint CMP/RIA bid would have been “a virtual certainty”. The focus of my inquiry must therefore be upon whether there was a real or substantial (and not a speculative) chance of a joint RIA/CMP bid. In this regard, I note that Roth J (at paragraph [54]) considered it to be

“…strongly arguable that Ricoh would have considered that a joint bid using the information which it had about Bombardier was in its best interests, and I note that this was indeed what Bombardier was expecting.”

However, I have heard, and read, considerably more evidence than was available to Roth J. Indeed, the only witness statements relied upon by Ricoh UK at the summary judgment hearing were two witness statements from Ms Constantia Smith, an in-house legal manager for Ricoh UK. I do, however, bear in mind the reservations I have already expressed (in Chapter 3 above) about certain of the defendants’ witnesses.

Mr Vanhegan’s submissions are set out at paragraphs 241-6 of his written closing, as supplemented by his oral submissions at T8/1271 and following. In summary, he relies upon: (1) the willingness of both Toshiba, another multi-national company, to bid, and work, with CMP outside the UK, and of IBM to appoint CMP to work with Toshiba on a pan-European basis for Bombardier; (2) RIA’s alleged need for CMP’s confidential information about Bombardier’s devices within the UK to enable it to mount a successful bid in competition with CMP, and the commercial unlikelihood of RIA being willing to “cut off its nose to spite its face”; (3) Mr Clark’s qualified admission (at paragraph 18 of his 1^st witness statement) that “submitting a joint bid with CMP could only strengthen Ricoh’s position”; (4) Mr Duckenfield’s evidence in chief (at T5/662-3) that it was standard practice for Ricoh, and common practice in the industry, to support channel partners in countries where they did not have a significant presence, in order to give them a better chance of winning a contract; (5) various admissions made in cross-examination by Mr Beelen, Mr Clark and Mr Rollings about the strength of CMP’s relationship with Bombardier in the UK, and RIA’s willingness to work with CMP if this would give RIA a competitive advantage, or make it more likely than not to win the tender. It is said that the overarching impression that these witnesses gave was that in “the real world” they recognised the value of co-bidding, and submitting a joint response with CMP. Mr Vanhegan submits that had RIA appreciated that none of CMP’s confidential information could be disclosed to RIA, and that it would be “bidding blind”, it is inevitable, or at least clearly more than merely speculative, that, given Ricoh’s knowledge of CMP’s strong relationship, and desire to work, with Bombardier, RIA would have come to an arrangement to bid jointly with CMP.

I bear all of Mr Vanhegan’s submissions in mind; but in my judgment they are outweighed by the competing submissions (which I accept) which were advanced by Mr Hollander at paragraphs 188-205 of his written closing, and orally at T8/1175-9. In my judgment, there was no real or substantial - indeed there was not even a speculative - chance that CMP and RIA would ever have reached agreement on the terms of a joint bid to be submitted to Bombardier. Several reasons lead me to this conclusion.

First, had RIA appreciated that it was not entitled to make use of the Hoskins spreadsheet for the purposes of formulating its response to the 2003 invitation to tender, I do not consider that there is any real or substantial (or anything more than a speculative) chance that it would have decided to approach CMP with a view to mounting a joint bid. In this connection, I bear in mind: (1) the fact that the UK was only one of the three European markets to which the tender was directed; (2) the limited information contained within the Hoskins spreadsheet; (3) the fact that, as demonstrated by the sheet detailing the existing devices maintained by Ricoh at Bombardier Belgium’s Bruges site (X5/24), and admitted by Mr Beelen in cross-examination (at T4/518-523), he already had knowledge of the devices Ricoh had installed at Bombardier’s site at Bruges; and (4) the lack of detail contained within RIA’s response to the tender invitation, and the poor (and inefficient) use made of the information disclosed by the Hoskins spreadsheet. I am satisfied that, on the hypothesis that RIA had known that it was not entitled to make any use of the Hoskins spreadsheet, Mr Beelen would simply have made no use of it; and he would have based RIA’s response upon the information to be derived from X5/24, rather than approaching CMP to formulate the terms of a joint bid to Bombardier. If I am wrong, and RIA would still have wished to rely upon the Hoskins spreadsheet, then I am satisfied that it would simply have gone ahead and done so, accepting the risk that, in the unlikely event that it was ever found out, it might face a claim from CMP for breach of contract (probably for minimal damages), which it would then seek to brazen out. After all, RIA proceeded with its sole bid notwithstanding the series of letters (soon involving solicitors) which commenced with CMP’s letter of 5 December 2003 (F3/870-2 & G1/1-3) threatening to place the matter in the hands of its solicitors, with a view to commencing proceedings against Ricoh UK for breach of contract. I consider that the fact that RIA’s use of the Hoskins spreadsheet for the purposes of its tender bid might have involved a breach of contract on the part of Ricoh UK is irrelevant to the factual inquiry into what might have happened in that hypothetical fact situation, which is the inquiry which falls to be undertaken when assessing the damages for the loss of a chance. I am satisfied that the prospect of RIA (or Ricoh UK) approaching CMP with a view to submitting a joint bid to Bombardier, in order to enable Ricoh to make use of the Hoskins spreadsheet, is no more than mere speculation, and does not amount to a real or substantial chance.

Secondly, and assuming I am wrong, and that Ricoh would have made an approach to CMP with a view to submitting a joint bid to Bombardier, I am satisfied that there was no real or substantial - indeed there was not even a speculative - chance that CMP and RIA would ever have reached agreement on the terms of a joint bid to be submitted to Bombardier. In his email of 18 November 2003 (F3/740) Mr Paul Bryan (of Ricoh UK) put forward two alternative processes whereby Ricoh UK could work together with CMP in the bidding process. Both were firmly rejected by the claimant. In his 5^th witness statement (at the beginning of paragraph 8, and again at the beginning of paragraph 9) he was adamant that CMP would never have agreed to its participation in the project, and its entitlement to payment, being limited to the UK. In cross-examination, the claimant re-iterated his position (at T2/251 and again at T2/266) that he was never going to enter into a contract which denied commission outside the UK. Mr Hollander makes the point that the claimant did not even seek to enter into negotiations with Ricoh; his response was to threaten litigation, straightforwardly founded upon the no-contact and anti-competition restraint in clause 7 of the Confidentiality Agreement. This response secured no concessions from Ricoh UK. The fact is that no negotiations ever took place in the factual situation which actually pertained towards the end of 2003; and I am satisfied that the position would have been no different in the hypothetical factual scenario which I am required to envisage for the purposes of the present exercise.

In any event, I am satisfied that any hypothetical negotiations between CMP and Ricoh would have got nowhere. At paragraph 12 of his 5^th witness statement, the claimant indicated that in any negotiations with RIA in 2003/4, CMP would certainly have insisted upon a figure of at least £7.5-8 million. Although, in cross-examination (at T2/263-5), the claimant explained that this would have been “the starting point for negotiations”, at anything approaching this level I have no doubt that, even if there had been any attempt at negotiations, they would quickly have foundered. Having seen, and had the opportunity to assess, both the claimant (for a little over 7 hours, spread over 3 court days) and Mr Beelen (for a little over 5 hours, spread, with interruptions, over 3 court days), and notwithstanding my reservations about Mr Beelen as a witness, I am satisfied that the two men would never have come to terms. The claimant would have required more than RIA would ever have been willing to concede. The claimant’s dogged intransigence in resisting any inroads into CMP’s revenue streams is neatly illustrated (admittedly in another context, and at a much later time) by his email to Toshiba of 31 January 2006 (F8/2182), at a time when Bombardier were pressing for Toshiba to reduce its prices, stating:

“CMP would have no issue with pricing to the client being improved upon under negotiations with [Bombardier] however this would HAVE [the claimant’s emphasis] to be on the basis that CMP commissions did not suffer.”

I am satisfied that there would have been a stalemate: RIA would not have been prepared to bid jointly with CMP elsewhere than in the UK; and CMP would not have been prepared to bid only in the UK, or to abandon its claims to commission on the supply of devices elsewhere in Europe. There would have been no joint bid. Even if I am wrong in that finding, I would accept Mr Hollander’s further submission that the conclusion of an agreement on detailed terms would have been another fundamental stumbling block in the way of a hypothetical joint CMP/RIA bid.

In his oral closing (at T8/1273) Mr Vanhegan made the point that Mr Bryan’s email of 18 November 2003 was written after RIA had got its foot in through the door, and was already in negotiations with Bombardier; and he submitted that RIA would not have had the luxury of making an offer like that if it had not misused CMP’s confidential information in the first place. I bear those points in mind. But I also bear in mind: (1) the reaction which RIA had received to its tender response from Bombardier on 13 November (F3/702-4), raising a number of requests for supplementary information, was entirely non-committal; (2) the fact that Mrs Cartledge made it clear in cross-examination (at T3/335-40) that she would not have expressed any preference on the part of Bombardier for CMP, or for a joint bid, an attitude which explained her failure to respond to Mr Beelen’s request (in his email of 1 December 2003 at F3/897) to “send us via email your preference for CMP”: see T3/340; and (3) the fact that CMP’s threats of litigation in December 2003 resulted in no material softening in Ricoh’s position, notwithstanding the point made in closing by Mr Vanhegan at T/1273-4. I am satisfied that, for present purposes, the old adage holds good; and that the proof of the pudding is indeed in the eating. I am satisfied that the claimant’s unequivocal and outright rejection of the proposals offered in Mr Bryan’s email of 18 November (which, I am satisfied, RIA would not have improved upon) reflects how any hypothetical negotiation would have proceeded (and quickly foundered).

It would not be appropriate for me to embark upon an assessment of damages based upon a hypothetical state of affairs which I have rejected as having no solid foundation in reality. Nor is there any need for me to do so. Since there exists a daily transcript of the evidence of the witnesses of fact, and I have heard no oral expert evidence in this case, any appeal court will be in as good a position as me to undertake that task should the need to do so ever arise. In doing so, the appeal court will no doubt bear in mind Mr Hollander’s submissions (at paragraphs 215-8 of his written closing) that, as events panned out, taking into account the recovery of the settlement sum from EIS/Toshiba, and also the commissions which CMP continued to receive on the devices which remained with Bombardier until June 2008, the court should conclude that CMP ultimately proved to be far better off than it would have been had it in fact succeeded in any joint bid with RIA.

For the same reasons I identified in relation to the loss of chance claim, I propose to address the claim for Wrotham Park damages even though, given my findings of fact, it is strictly unnecessary for me to do so. In relation to the 2003 invitation to tender, I proceed on the hypothesis that (contrary to my findings) RIA used CMP’s confidential information, contained within the Hoskins spreadsheet, when preparing its response to Bombardier’s tender invitation. In relation to the alleged breaches, first, in relation to the 2007 invitation to tender and, secondly, its implementation in 2008, I proceed on the hypotheses that (contrary to my findings of fact): (1) information concerning the service pricing negotiated by CMP on behalf of Bombardier in respect of devices supplied and serviced by Ricoh UK was disclosed to, and was misused by, RGSE for the purposes of the 2007 invitation to tender, and that such information was CMP’s confidential information; and (2) the confidential information from the Wilson spreadsheet which Mr Hammond used to assess the print volumes which were being produced by the existing CMP devices at Bombardier’s UK sites, so that RGSE’s proposals for the replacement machines could adequately specify the right devices, was CMP’s confidential information.

It is now well-established that in an appropriate case damages for breach of contract may be measured by the benefit gained by the contract-breaker from the breach. The position is summarised at paragraph 26-027 of Vol 1 of Chitty as follows:

“On this basis, the claimant is awarded ‘hypothetical release’ damages representing what the claimant could reasonably have charged for giving permission for the defendant to act contrary to his contractual undertaking…[S]trict compensation for loss which the claimant can prove to have been caused by the breach is treated as irrelevant: the defendant is required to make a ‘reasonable’ payment in respect of the benefit he has gained. In another phrase, it is the ‘value of a bargaining opportunity’, but it does not matter that had the claimant’s permission been sought it would never have given it. At the very least it can be said that the same broad measure previously applied in tort cases of deliberately wrongful interference may now be used in cases of breach of contract where the defendant acted in disregard of the claimant’s rights, but the latter cannot show that he suffered loss.”

Any award of Wrotham Park damages is compensatory and not gain-based. The principle is that the court may award damages to a claimant to represent the price he could reasonably have exacted for requiring a licence payment in return for permitting the defendant to do what he has done. If the court awards Wrotham Park damages, it must consider a hypothetical negotiation between a hypothetical willing seller and a hypothetical willing buyer, and what would have occurred with the two parties acting reasonably. The negotiation is doubly hypothetical because, unlike the inquiry involved when assessing damages for the loss of a chance, the court is required to ignore the eventuality that, in an actual negotiation, one party would in fact have refused to negotiate with the other. It is also required to ignore the eventuality that one party could in fact have been expected to act unreasonably.

Mr Vanhegan submits that it is immaterial whether RIA in fact used all of the confidential information which was disclosed to it; what is material is the nature and extent of the wrongful disclosure. I prefer Mr Hollander’s competing submission that the court must assess the appropriate fee for a licence (1) to use that part of the information which the party subject to the restraint wishes to use, and (2) for the purposes for which he wishes to use it. The touchstone of an award of Wrotham Park damages is justice. Mr Vanhegan’s submission is potentially unjust because it might over-compensate the claimant, resulting in a windfall award of damages. In any event, an appropriate licence fee should fall to be determined by reference to the use which is sought to be made of the confidential information, since therein lies its value.

Mr Vanhegan submits that the CMP confidential information which was disclosed by Ricoh UK was so material and valuable that, if used by a competitor against CMP, that competitor would have had a significant commercial advantage. In those circumstances, the court must put itself in the shoes of the hypothetical bargainers (CMP and Ricoh UK) at the time of the disclosure, and ask itself what value would have been put upon Ricoh UK’s ability to disclose CMP’s confidential information to a third party in circumstances where both bargainers knew that it was seeking to be able to use that information in competition with CMP for the Bombardier contract. Founding himself upon observations of the Privy Council (speaking through Lord Walker of Gestingthorpe) in Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 45, [2011] 1 WLR 2370 (where substantial Wrotham Park damages were awarded for the breach of a confidentiality agreement) at paragraphs [51]-[58], Mr Vanhegan submits that, when undertaking the Wrotham Park damages assessment, the court is entitled to take into account what, in late 2003, the parties thought the Bombardier contract was going to be worth. It is said that the hypothetical bargainer in CMP’s shoes would be contending that the disclosure of its confidential information would, in all likelihood, result in it losing any competitive advantage it might have had in the bid tendering process, and thus render it likely to lose the profits which it expected to receive from a successful tender. The contemporaneous documentary evidence (in the form of Mrs Neame’s Calculation of Loss at F2/382-5) valued CMP’s gross loss of profit for one five-year cycle in the order of just over £7.4 million. Also said to be of relevance (albeit a secondary indication) is the liquidated damages figure of £3 million subsequently agreed between CMP and EIS/Toshiba for the purposes of their Commission Agreement dated 1 August 2005. Mr Vanhegan therefore submits that the reasonable fee which would have been agreed between CMP and Ricoh UK in 2003, on the assumption (as Wrotham Park requires) that the parties would have reached agreement, would have been somewhere between £3 and £7.4 million.

Mr Hollander submits that an award of Wrotham Park damages is not appropriate in a case where the misuse of confidential information, or breach of confidence, by the defendant is incidental or minimal, or not such as to confer a valuable benefit upon the defendant. In such circumstances, it is submitted that the court should take the view that the result of the hypothetical negotiation would have been for the defendant to say “given what I want to use the information for, it is completely worthless to me”; and that the claimant should be left to a remedy in nominal damages. Relying upon observations by Chadwick LJ (with the agreement of Maurice Kay and Wilson LJJ) in World Wide Fund for Nature v World Wrestling Federation Inc [2007] EWCA Civ 286, [2008] 1 WLR 445 at paragraph [59] that:

“When the court makes an award of damages on the Wrotham Park basis it does so because it is satisfied that it is a just response to circumstances in which the compensation which is the claimant’s due cannot be measured (or cannot be measured solely) by reference to identifiable financial loss.”

and similar observations by Stadlen J in Giedo Van Der Garde v Force India Formula One Team Ltd [2010] EWHC 2372 (QB) (Force India) at paragraphs [538]-[539], Mr Hollander’s primary submission, in relation to the assumed use made of the Hoskins spreadsheet, is that in the present case there would be nothing unjust in leaving the claimant to an award of nominal damages; and that it would be appropriate so to order, given the incidental or minimal nature of any use made of CMP’s confidential information.

Should the court consider that a small award is justified, however, Mr Hollander would submit that any award of Wrotham Park damages must reflect the fact that the confidential information abstracted from the Hoskins spreadsheet was not in fact used to win any contract. He draws the court’s attention to Sinclair v Gavaghan [2007] EWHC 2256 (Ch) where, at paragraph [43], Patten J awarded damages of only £5,000 because the unauthorised use was not such as to justify a significant award of damages. Mr Hollander further submits that the sums recovered by CMP from its settlement with EIS/Toshiba, and the commission of approximately £900,000 received in respect of the CMP/Ricoh devices retained at Bombardier’s sites in the UK between June 2005 and June 2008, should be credited against any award of damages, reducing it to a negative figure.

In my judgment, there should be no award of Wrotham Park damages for the disclosure and assumed misuse of the Hoskins spreadsheet for the following reason: Had Ricoh UK sought a licence permitting its disclosure and use for the purposes of RIA’s response to Bombardier’s 2003 invitation, in any hypothetical negotiation the issue of CMP’s intention, and ability, to submit a competing bid would inevitably have been raised (given that the reason advanced by the claimant for RIA’s wish to be able to use CMP’s confidential information was RIA’s concern that, without it, RIA would have had very little chance of being able successfully to compete against CMP in the 2003 tender). Given that CMP in fact submitted its own competing bid, the adoption of appropriate hypothetical assumptions for the purposes of the Wrotham Park assessment of damages requires the court to assume that the terms of any appropriate licence would have entitled CMP to make such a bid. With that knowledge, I have no doubt whatsoever that the grantee of the hypothetical licence would have insisted that any payment by way of consideration should be conditional upon either (1) its own bid succeeding or, at the very least, (2) CMP’s bid being rejected. Since RIA’s bid failed, and CMP’s joint bid with Toshiba was successful, whichever condition were adopted, no licence fee would ever have fallen to be paid to CMP. In short, any hypothetical negotiation would not have resulted in any payment being made to CMP for its licence to disclose, and use, the Hoskins spreadsheet.

If I am wrong in the foregoing analysis, then I would still have rejected the claim for Wrotham Park damages in relation to RIA’s response to the 2003 invitation to tender because I would have accepted Mr Hollander’s submissions: (1) that it would not be a “just response to circumstances” (to use Chadwick LJ’s phrase in WWF) to award such damages where the disclosure and assumed misuse of CMP’s confidential information (a) caused no damage to CMP (because it won the tender) and (b) afforded no advantage to RIA or Ricoh UK (because the former lost the tender); and (2) any award of Wrotham Park damages should be a modest one, and would have been considerably less than the sums in fact derived by CMP from its continuing commission payments for devices retained by Bombardier after June 2005 (the assumed starting date of any new contract), for which I am satisfied that credit should properly be given by CMP.

In relation to the assumed disclosure and misuse of CMP’s confidential service price information for the purposes of the 2007 invitation to tender, I proceed on the hypothesis that (contrary to my findings of fact) information concerning the service pricing negotiated by CMP on behalf of Bombardier in respect of devices supplied and serviced by Ricoh UK was disclosed to, and was misused by, RGSE for the purposes of the 2007 invitation to tender, and that such information was CMP’s confidential information. But I am required to make no assumption, contrary to the true facts, that such information was of any value to RGSE. The reality is that such service pricing information was of no value to it whatsoever. RGSE had already been notified (on 5 October 2007: F11/3068) that it had been selected as Bombardier’s preferred future supplier. This was on the basis of German servicing pricing. The relevant issue was not whether the service pricing applicable to Ricoh UK’s existing contract with Bombardier was compatible with German service pricing, but whether the UK service pricing set out in the relevant service pricing mandate, and applicable to Ricoh UK’s customers generally, was so compatible. I am satisfied that the matter would never have proceeded to the stage of a negotiation because RGSE would simply have decided that it did not need the service pricing information applicable to Ricoh UK’s existing contract with Bombardier. An award of damages on the Wrotham Park basis would not be a just response to the assumed factual situation. Conversely, it would not be “manifestly unjust” (to adopt Stadlen J’s phrase in Force India) to leave the claimant with no award for damages under this head. In his oral closing, Mr Vanhegan submitted (at T8/1278) that until May 2008, when the contract was signed, there was no certainty that RGSE would secure the contract; and therefore any important information about pricing which could help RGSE to secure that deal was valuable. But, I am satisfied that, on a true analysis, this information could not have helped RGSE to secure the deal.

In relation to the alleged breaches in relation to the implementation of the 2007 invitation to tender in 2008, I proceed on the hypothesis that (contrary to my finding of fact) the confidential information from the Wilson spreadsheet, which Mr Hammond used to assess the print volumes which were being produced by the existing CMP devices at Bombardier’s UK sites, so that RGSE’s proposals for the replacement machines could adequately specify the right devices, was CMP’s confidential information. Wrotham Park provides the only measure of damages available to the claimant in respect of this assumed breach of contract since CMP was no longer taking on business after 2006, and was not a competitor of RGSE.

At paragraphs 281 to 290 of his written closing submissions, Mr Hollander disputes that there should be any award of damages under this head. Alternatively, he says that any award should be “vanishingly small”. He makes the points that: (1) At the relevant time, CMP was not looking to take on new business; (2) RGSE had already won the 2007 invitation to tender, and was looking to undertake (in the words of Ms Yilmaz) a “quick and dirty” replacement of Bombardier’s existing CMP/Ricoh devices on a “like for like” basis; (3) CMP never sought to exploit the information for its own commercial ends, such as by seeking to license its use to any third party (if it were open to it to do so); (4) On the evidence (particularly of Mr Pearce) the information was of questionable quality and of limited utility; and (5) On the evidence (of Mr Pearce and Ms Yilmaz) the information was of no value. Mr Hollander submits that the fact that the information was of no, or minimal, value is highly material to any Wrotham Park assessment since it would have been highly relevant to any hypothetical negotiation in 2008. As part of that negotiation, Ricoh would have said to CMP: “Why do you care? The information is of no commercial value to you; and it is of no commercial value to us.” Even if the value is more than minimal, Mr Hollander suggests that one is talking about hundreds of pounds, or perhaps a thousand or two thousand pounds, at the very most.

In his oral closing (at T8/1278) Mr Vanhegan submitted that, during the period from May until the end of June 2008, the information made a material saving to Ricoh UK because it did not have to commit itself to a more detailed audit, within a limited time frame; and its use caused CMP to suffer a direct loss because its devices were going to be taken out of Bombardier’s sites sooner rather than later, thereby terminating its income stream from the continuing use of the devices. So far as the former point is concerned, an audit had to be, and was, carried out in any event in due course (albeit without the pressure of any artificial time constraint). So far as the latter point is concerned, there is no pleaded claim for damages on this basis, no doubt because the claimant’s legal representatives anticipated objections on the grounds of remoteness of damage.

In my judgment, any Wrotham Park assessment of damages must proceed on the basis of a hypothetical negotiation which is founded upon the underlying realities of the situation against which it falls to be undertaken. Although the negotiation is necessarily hypothetical, those realities should not be glossed over or ignored. In the present assumed state of affairs, since it is Mr Hammond who made use of the (assumed) confidential information, it is he who must be assumed to have initiated any moves to sanction its use by CMP. I have no doubt that, before committing Ricoh to any expenditure in that regard, he would have consulted Mr Pearce and Ms Yilmaz (with whom he was engaged in email exchanges at the time: see, e.g. emails of 26 May 2008 at F15/4320A, and 2 June 2008 at F16/4509) about the commercial value of the information contained within the Wilson spreadsheet. Mr Pearce would have been dismissive of the value and utility of that information: see his evidence at T5/820-6 and (in relation to Derby) paragraph 6 of his 1^st witness statement. Speaking with reference to the spreadsheet sent to her by Mr Mel Fisher (of Bombardier) on 15 May 2008, Ms Yilmaz stated (at paragraph 43 of her witness statement), and I accept, that she “certainly would not have accepted the suggestion that Ricoh should pay for the spreadsheet”. She did not say, and was not asked, whether she would have endorsed any proposal to pay for the Wilson spreadsheet (which, unlike the Fisher spreadsheet, detailed the use being made of the existing devices); although she did say (at the end of her cross-examination at T7/1093) that “it was a very simple quick and dirty solution that they wanted. They [i.e. Bombardier] were very clear that they wanted MFD colour, so it was almost academic what the current issuings [sic: probably a transcription error for “usages”] were.” I find that had they been consulted by Mr Hammond, both Mr Pearce and Ms Yilmaz would have advised that the information contained within the Wilson spreadsheet was of insufficient commercial value to have warranted making any approach to CMP to secure a licence to permit it to be used in connection with the replacement of the existing CMP/Ricoh devices at Bombardier’s sites in the UK. I also find that Mr Hammond would have accepted that advice, and would have made no use of the information for that purpose (just as he abandoned the reference to “existing costs” from the slides which formed part of the revised Derby proposal submitted to Bombardier on 4 June 2008). That finding is consistent with, and is supported by, Mr Hammond’s evidence (at paragraph 23 of his 1^st witness statement), which I accept, that the information contained in the Wilson spreadsheet “added very little extra information to that which we had already both from the Derby audit (in respect of Derby) and provided by Bombardier”. Thus, there would never have been any hypothetical negotiation.

In the light of these findings, I conclude that it would not be just to make any award of damages on the Wrotham Park basis for any breach of the Confidentiality Agreement resulting from Ricoh’s use of the Wilson spreadsheet in connection with the implementation of the 2008 tender. I consider that it would not be “manifestly unjust” (to adopt Stadlen J’s phrase in Force India) to leave the claimant with no award for damages under this head. Had I decided to make such an award, I would have accepted Mr Hollander’s submissions on the amount of such award; and I would have assessed damages on a Wrotham Park basis at a sum in the order of £1,000.

For the reasons I have given, the claimant fails on both liability and damages; and this claim is dismissed in its entirety. I propose formally to hand down this judgment in Manchester at the beginning of the Applications List on Friday 2 March 2012. Neither the parties nor their legal representatives need attend. If the parties are able to agree the terms of an appropriate Order, then, subject to my approval, I will make an order in those terms. If they are not, then I shall adjourn the matter for further consideration to the first available date within 28 days after formal hand down. I will extend the time for appealing (and seeking permission to appeal) to that further hearing. Any skeleton arguments should be served (by email) not less than two clear days before the hearing (with hard copies being handed up then).

Since circulating a draft of this judgment, I have received (in addition to the usual minor editorial corrections) suggested corrections of a more substantial nature from Mr Vanhegan and Mr Wilkinson for the claimant (submitted in reliance upon observations of Pumfrey J in Navitaire Inc v EasyJet Airline Co Ltd (No 2) [2006] RPC 4 at [82]). I record that, in the light of their suggestions, I have thought it appropriate to make minor changes to paragraphs [52], [68], [87], [102] and [103] of this judgment. There is no alteration to my substantive conclusions.

It would not be appropriate for me to conclude this judgment without expressing my thanks for the considerable assistance I have received from both leading counsel, ably supported by their respective juniors and instructing solicitors. All four advocates, and both firms of solicitors, had clearly worked extremely hard in identifying, preparing and presenting their respective clients’ cases, and in seeking to answer the developing cases they have had to meet. According to Mr Hollander, the defendants had conducted a search of approximately 50,000 electronic documents, plus additional hard copy files, and had disclosed approximately 11,500 documents to the claimant, all of which have had to be considered and assimilated. I pay particular tribute to the forensic skills of Mr Vanhegan who, in the course of a series of skilful cross-examinations, succeeded in exposing errors, deficiencies and limitations in the evidence of several of the defendants’ witnesses; and also of Mr Hollander, whose critical analysis of the evidence in his closing written submissions has been of particular assistance to me. The claimant has good reason to be grateful for Mr Vanhegan’s forensic skill and diligence. The fact that, in the event, this has not met with any greater degree of success is attributable to no fault on the part of Mr Vanhegan; rather it is the, perhaps inevitable, consequence of trying to shoehorn what was, in reality, an impermissible claim for damages for breach of an unenforceable restraint against competition into the ill-suited form of a claim for damages for breach of confidence. The claimant’s difficulties were further compounded by the fact that, since CMP won, and Ricoh UK lost, the 2003 invitation to tender, on a conventional approach to the assessment of damages for breach of contract for loss of bargain, he could demonstrate no such loss, compelling him to formulate his claim for damages as one for the loss of a chance, with a claim for Wrotham Park damages by way of an alternative. The reality is that once Roth J had struck out the case founded upon clause 7, this was always destined to be a difficult claim which has suffered an appropriate fate. The fact that significant work may have been required from the claimant’s lawyers in order to extract a full and accurate picture of the nature and extent of the disclosure, and the use made, by Ricoh of CMP’s alleged confidential information does not derogate from that fact.