Total Electric Solutions Limited & Anor v Nortek Electrical Circuits Limited

Mr Justice Richard Smith: Background

1. This judgment concerns the Claimants’ application dated 24 September 2025 for permission to amend their Particulars of Claim (with related amendments proposed to the Claim Form) (Amendment Application).

2. Until September 2023, the First Claimant (TES) was a specifier, designer, manufacturer and wholesaler of leading electronic safety, accessibility and passenger experience solutions.

3. The Second Claimant (Ardent) is a global market leader for vehicle safety equipment and has a significant reputation in the industry for its expertise across a wide range of industry sectors, including in the rail, automotive, mining, public transport and waste management industries.

4. The Defendant (Nortek) is a contract electronics manufacturer of bespoke electronic products covering multiple industry sectors, including commercial and passenger automotive electronics.

5. In or around September 2022, TES was acquired by Ardent, the former then becoming part of the Ardent group of companies. Post-acquisition, Ardent took over the business activities of TES, with TES ceasing operations and trade from the end of September 2023, albeit continuing to license certain intellectual property rights to Ardent for use in connection with its activities.

6. The Amendment Application follows my earlier judgment dated 7 March 2025 (Judgment) in which I ruled in the Defendant’s favour on its application dated 11 December 2024 (Strike-out Application) for reverse summary judgment on, and/ or striking out of, parts of the Claimants’ Particulars of Claim in their then form (Original PoC) [2025] EWHC 725 (Ch).

7. The Claimants issued the original Claim Form on 9 October 2024. The Original PoC of the same date explained by way of brief background the relationship between TES and Nortek. This was said to have commenced in 2005 with their discussion and early development activity concerning certain electronic products for use in buses and other public or commercial vehicles.

8. The substantive claim was concerned with certain products developed for such use in the period from around 2011 (V-Series Products). The Claimants alleged that Nortek had:- (i) breached a written supply agreement dated 23 February 2010 (2010 Agreement), principally by selling certain V-Series Products (Contested Products) to third party customers in breach of the exclusivity provision in the 2010 Agreement; (ii) infringed copyright in various works relating to those products and design right in their printed circuit board designs; and (iii) as a result, Nortek had caused the Claimants to incur loss in an amount then quantified at approximately £11.8 million.

9. The Strike-Out Application was not concerned with the contractual breach of the exclusivity provisions rather the copyright and design infringement claims, specifically:- (i) The Claimants’ argument that TES was the sole legal owner of any copyright works and unregistered design right in the V-Series Products based on the contractual assignment of those rights pursuant to the 2010 Agreement. Nortek argued, in turn, that this was unsustainable, whether as a matter of proper construction of the express terms or on the basis of the related implied terms asserted by the Claimants (Construction Issue); (ii) The Claimants’ argument that, but for the operation of the 2010 Agreement in that manner, those rights were jointly owned by TES and Nortek based on TES’ input into their development (Joint Authorship Issue). Nortek argued, in turn, that the Claimants had not advanced a sustainable allegation of authorial contribution by TES; and (iii) The alleged lack of adequate particularisation in the Claimants’ original PoC with respect to the works in which those rights were said to subsist (Particularisation Issue).

10. I should add that the Original PoC referred to a supplemental agreement said to have been entered into by TES and Nortek in 2017 (2017 Agreement), albeit that was relied on for the purpose of the contractual claim, not intellectual property infringement.

11. Ardent’s claim against Nortek was based on the rights said to be enjoyed as non-exclusive licensee of TES’ copyright works and unregistered designs in the Contested Products, including with respect to Nortek’s alleged infringement thereof.

12. For the purpose of the Construction Issue, the Claimants placed some reliance in argument on the context and previous history of dealings between the parties as well as the commercial context. The difficulty was that such context as might have had a bearing on the issue was not identified in the pleadings. The Claimants also placed reliance in argument on the 2017 Agreement as evidence of how the 2010 Agreement had subsequently been interpreted by the parties. However, this was irrelevant as an aid to the interpretation of the earlier 2010 Agreement.

13. After hearing argument on the Strike-Out Application, I granted summary judgment on, and struck out, that part of the Claimants’ case relating to the Construction Issue. I also struck out that part of the Claimants’ case relating to the Joint Authorship and Particularisation Issues. The proposed APoC

14. As a preliminary matter, despite the Court entertaining in the Judgment the possibility that the Claimants might yet seek to advance a claim with respect to copyright and design right on a viable, alternative basis, no such claim has been proposed in the amended Particulars of Claim (APoC), at least in terms of a separate cause of action. Rather, the proposed claim is now limited to one for breach of contract, again based principally on Nortek’s supply of Contested Products to third parties, albeit the source and extent of the parties’ contractual relations are expressed more widely than before. (a) The Contract (2005-2010)

15. In the Original PoC, the Claimants maintained a breach of the 2010 Agreement and (more faintly) of the 2017 Agreement. The contractual relationship now relied upon encompasses the parties’ dealings in the period 2005-2010 as well. Specifically, it is alleged that, during that earlier period, TES and Nortek entered into an oral agreement for the design and supply of certain products for use in passenger vehicles (Contract), the terms of which are said to have been partly evidenced in writing (including by e-mail) and/ or to have arisen by course of conduct between the parties. It is said that pursuant to the Contract:- (i) TES shared with Nortek insight into, and knowledge of, the market for passenger vehicle electronics, related customer requirements and ideas and specifications (and estimated market size) for new electronics products for use in passenger vehicles; (ii) TES commissioned Nortek to produce a design with a view to the manufacture and supply of the relevant product to TES; and (iii) Subject to the acceptance of such design, Nortek manufactured the relevant product and supplied it to TES on an exclusive basis.

16. As a result of their agreement, between 2005 and 2010, TES is said to have commissioned, and Nortek designed and supplied, a number of the V-Series Products, generating a turnover for TES of some £800,000.

17. The terms of the Contract are said to have included the following:- (i) The intention that TES would pay the design costs, Nortek calculating the total such costs, dividing them by the minimum order quantity (known only to Nortek) and including them in the per unit price (Pricing Term); (ii) The sole ownership by TES of such products supplied in this way (if not an express term, then to be implied as a matter of obviousness given the provision of ideas and specifications, and payment of design costs by, TES (Product Ownership Term)); (iii) TES’ ownership of all unregistered design rights subsisting in such products (if not an express term, then to be implied as a matter of obviousness, business efficacy or TES’ (then) statutory rights in relation to designs created under a commission by TES (Design Right Term)); and (iv) As a result of, individually or cumulatively, the terms at (i)-(iii) above, or as a freestanding term in its own right, Nortek’s exclusive manufacture of such products for TES (Exclusivity Term). (b) The 2010 Agreement

18. The Claimants also rely on what they describe as the reiteration and formalisation of the basis of their existing relationship in the form of the 2010 Agreement, including:- (i) mutual confidentiality obligation with respect to all documentation, including sketches, written specification, design drawings, approvals, part lists, costing information and any other document (clause 1); (ii) provision as to ownership of the product and design (clause 2), including:- (a) ownership by TES of all products, ideas and specifications and their non-replication for other parties without TES consent; and (b) Nortek taking ownership of the product design if it fully funded the design costs; and (iii) exclusivity of supply (in favour of TES) of any product manufactured from TES’ ideas or specifications and the prohibition against their offer or replication for any other person (clause 3).

19. The Claimants also say that the 2010 Agreement was not the whole agreement between the parties and did not replace or vary the Contract. Rather, it set out the parties’ common understanding of the commercial arrangements they had been operating prior thereto, including the Pricing, Product Ownership, Design Right and Exclusivity Terms, and it indicated the parties’ intentions to continue in materially the same way. Specifically in this regard, the Claimants rely on the stated purpose of the 2010 Agreement as being to “detail the supply of goods agreement” between Nortek and TES to say that this obviously refers to their pre-existing agreement for the supply of goods.

20. In relation to product design, the Claimants also say that clause 2 of the 2010 Agreement means that design ownership in the V-Series Products vested in TES pursuant to the Pricing and Design Right Terms of the Contract in circumstances in which Nortek did not bear the design costs. (Such an interpretation is also said to follow in any event from Nortek owning the designs if they paid the design costs.)

21. Alternatively, to the extent that Nortek did own the relevant design rights, the Claimants assert that, properly construed, clauses 2 and 3 of the 2010 Agreement granted TES an exclusive licence to use and exploit such rights (said to follow from the non-replication provisions operating for the exclusive benefit of TES with respect to the ideas and specifications provided by TES or products manufactured therefrom.) However, to the extent there was no Exclusivity and/ or Design Right Term, it was an implied term, as a matter of obviousness or business efficacy to give effect to the 2010 Agreement, that Nortek granted TES a non-exclusive right to use and exploit those rights in perpetuity upon termination of the parties’ relations.

22. Finally, to the extent that the 2010 Agreement superseded the prior contractual relations of the parties and comprised the parties’ entire agreement, the Claimants still rely on the prior facts and matters as forming part of the relevant factual matrix in construing the terms of the 2010 Agreement. (c) The 2017 Agreement

23. The Claimants also rely upon the notes of a meeting apparently held between TES and Nortek in late January 2017, said to record the parties’ agreement reached then in the form of the 2017 Agreement. This is said to have supplemented the terms of the Contract and the 2010 Agreement, including by reiterating the Product Ownership and Design Right Terms, recording the prior payment by TES of the design costs of the relevant products “in most cases”, reinforcing the Exclusivity Term and having the same effect with respect to the related provisions of the 2010 Agreement. (d) Ardent’s role

24. Finally, the Claimants plead that, in the second half of 2022, Ardent acquired TES which continued to raise purchase orders under the Contract and/ or 2010 and 2017 Agreements. Since Nortek knew that TES did so on behalf of Ardent and that Ardent would benefit commercially therefrom, the Contract and/ or 2010 and 2017 Agreements were amended either expressly, or by the conduct of TES and Nortek, to add Ardent as a party. Alternatively, TES and Nortek agreed that Ardent was a third party that benefited from TES and Nortek’s commercial relations such that Ardent was entitled to enforce the contractual terms under the Contracts (Rights of Third Parties) Act 1999. Parties’ arguments/ discussion

25. I consider the parties’ arguments separately and in the order advanced alliteratively by the Claimants at the hearing, namely ‘abuse’, ‘arguability’ and ‘Ardent’. (a) Abuse

26. Nortek argued that the Claimants were prevented by reason of cause of action or issue estoppel or Henderson v Henderson abuse from continuing to assert (as they do in the APoC) the question of ownership of the unregistered design right subsisting in the V-Series Products.

27. As a preliminary matter, I recognise that the repeated assertion of such right, albeit in a manner which (as here) falls short on the later occasion of the advancement of a cause of action, may yet engage one or more of these disparate elements of the res judicata “portmanteau” described in Virgin Atlantic Airways Ltd v Zodiac Seats (UK) Ltd [2013] UKSC 46 (at [17]). Indeed, as Coulson J (as he then was) said in Seele Austria GmbH Co KG v Tokio Marine Europe Insurance Ltd [2009] EWHC 255 (TCC) (at [105]):- “ …. the court should be astute to prevent a claiming party from putting its case one way, thereby causing the other side to incur considerable expense, only for the claiming party to lose and then come up with a different way of putting the same case, so as to begin the process all over again. ….”

28. I also recognise, as did Dias J (citing Seele) in Fibula Air Travel v Just-Us Air Srl [2023] EWHC 1049 (Comm) (at [19(f)]) that such later occasion can arise within the same proceedings:- “The principles of issue estoppel and Henderson abuse can apply not only in the context of separate sets of proceedings, but also where the relevant issue arises at a subsequent stage of the same litigation, for example after a trial of preliminary issues or a summary judgment: Seele Austria (supra) at [19] quoting from Fidelitas Shipping (supra). However, a finding of Henderson abuse within a single set of proceedings, whilst conceptually possible, will be unusual, particularly where the earlier decision was arrived at on a summary basis: Gruber v AIG (supra) at [11]; Kensell v Khoury, (supra) at [27]-[53].”

29. In applying these principles, it is important to consider what matters have, in fact, already been decided. In this case, I was satisfied that those aspects of the Claimants’ pleaded case relating to the Construction Issue had no real prospects of success, that there was no other compelling reason for the related issues to be pursued to trial and that they disclosed no reasonable grounds for bringing the claim. In light of that conclusion, Nortek succeeded on its summary judgment and strike out applications with respect to the arguments advanced before me concerning the express and implied terms of the 2010 Agreement. In light of that determination of the Construction Issue, I accept that TES would be prevented on both issue estoppel and Henderson grounds from re-arguing that same issue in any proposed amended claim. They have not sought to do this in the APoC.

30. In relation to the Joint Authorship and Particularisation Issues, I came to the view that, although the Claimants’ pleading indicated a potential framework for a claim, it did not properly articulate the material facts giving rise to the joint ownership of copyright or design right and was otherwise vague, incoherent and not capable of meaningful response. Given those findings, I did not grant summary judgment on these issues but I struck out the relevant parts of the pleading. However, having already recognised the draconian effect of my decision, I also made went on in my Judgment (at [99]) to explain that:- “ … I do not exclude the possibility that the Claimants might seek to put forward an alternative basis for its claim with respect to copyright and design right which would be legally sustainable and/ or coherent. At present, however, such an alternative is not pleaded and none has been proposed by way of amendment.”

31. To that end, the order I made following the Judgment deliberately reflected this different disposal of the issues. My order also provided for service of amended particulars of claim, not only to reflect that disposal, but also to accommodate (consistent with the Judgment at [99]) any related amendments that might be proposed. In light of these matters, the Claimants are not precluded, on res judicata grounds at least, from the course they have proposed in the APoC with respect to design right. (To the extent that Nortek contends otherwise by reference to the dismissal language in the disposal of the design right infringement claim, that would not accord with my intention (as recorded in the Judgment) and I would not hesitate to correct the order to make that clear.) (b) Arguability Legal principles

32. I now turn to the proposed amendments more broadly, identifying first the applicable principles which guide the Court. To that end, their distillation by HHJ Cawson KC as he then was (sitting as a Judge of the High Court) in JMW Solicitors v Injury Lawyers 4U [2025] EWHC 1045 (Ch) (at [24]-[31]) is instructive, the parties’ different emphases in that case mirroring those arising on the Amendment Application:- “24. I understand it to be common ground that the appropriate test to apply in respect of the Amendment Application is the same as that applicable on an application for summary judgment, namely whether claims sought to be advanced by the Claimant by way of the APofC have a “realistic” as opposed to a “fanciful” prospect of success – see e.g., Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 at [17], per Popplewell LJ.

25. I set out in paragraphs 58 to 60 of the First Judgment what I considered that this test involves. However, so far as my determination of the Amendment Application is concerned, a number of differences of emphasis have arisen between the parties as to how this test ought to be applied.

26. Mr Lascelles, on behalf of the Defendants, placed particular reliance upon what was said by Popplewell LJ in Kawasaki Kisen Kaisha Ltd v James Kemball Ltd (supra) at [18], submitting on the basis thereof that in considering whether a case sought to be advanced by way of a proposed amendment has a real prospect of success: i) It is not enough that the claim is merely arguable, it must carry some degree of conviction; ii) The pleading must be coherent and properly particularised – see Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204 at [42]; and iii) “The pleading must be supported by evidence which establishes a factual basis which meets the merits test; it is not sufficient simply to plead allegations which if true would establish a claim; there must be evidential material which establishes a sufficiently arguable case that the allegations are correct: Elite Property at [41].”

27. In Elite Property at [41], Asplin LJ suggested that a claim should not be considered to have a real prospect of success where: “(a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the court to draw the necessary inferences …”.

28. As against these considerations, on behalf of the Claimants, Mr Chaisty KC placed particular reliance upon a number of principles identified in the judgment of Lord Hamblen JSC in Okpabi v Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294 (which I had referred to paragraph 60 of the First Judgment).

29. In particular, Mr Chaisty KC placed reliance upon the following paragraphs of Lord Hamblen JSC’s judgment: i) Paragraph 21, where Lord Hamblen JSC identified the importance of observing judicial restraint and avoiding mini trials in considering whether there was a triable issue against a defendant; ii) Paragraph 22, where Lord Hamblen JSC stated that, save in cases where allegations of fact are demonstrably untrue or unsupportable, it is generally not appropriate for a defendant to dispute the facts alleged through evidence of its own, and that doing so may well just show that there is a triable issue. iii) Paragraph 107, where Lord Hamblen JSC emphasised that the focus should be upon the pleaded case, and whether that discloses an arguable claim, and that the court should not be drawn into an evaluation of the weight of the evidence and an exercise of judgment based on that evidence. iv) At paragraphs 109-111, Lord Hamblen JSC stressed that it was not for court at the summary judgment stage to make “findings” on the evidence. Thus, if the court gets to the point of embarking upon an evaluation of the weight of the evidence, then that is indicative of there being a case that ought to be left to go to trial. v) Paragraphs 126-127, where Lord Hamblen JSC made the point that conducting a mini trial ran the risk of leading the court to make inappropriate determinations in relation to documentary evidence. This was because the court, in making a decision on the evidence, effectively had to conclude that the prospect of there being further relevant evidence emerging on disclosure could and should be discounted. Lord Hamblen JSC rejected the approach taken below by Simon LJ in the Court of Appeal, where the latter had decided that the question required to be determined on the basis of the material available, and that the prospect of further evidence did not assist. Lord Hamblen JSC endorsed the approach of Lord Briggs JSC in Lungowe v Vedanta Resources plc [2019] UKSC 20, [2020] AC 1045, at [45], were Lord Briggs JSC had said: “… the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a full investigation of the facts may add to or alter the evidence relevant to the issue.”

30. Mr Chaisty KC also referred to the decision of the Court of Appeal in CNM Estates (Tolworth Tower) Ltd v Carvill-Briggs [2022] EWHC 1583, and in particular to the following: i) The observations of Males LJ at [48] and [49]: “48. … the principal focus must be on the pleading in question and no attempt should be made to resolve disputed matters of evidence (conducting a mini trial).” “49. … in general (and save perhaps in ‘very late’ amendments) it is not appropriate to consider the strength or weaknesses of the claim as a factor relevant to the exercise of discretion.” ii) What was said by Sir Geoffrey Vos MR and Newey LJ at [75] – [77]: “75. As we have indicated, an application for permission to amend particulars of claim will be refused if the amendments put forward a new case which would have ‘no real prospect of succeeding’ within the meaning of CPR Part

24. Beyond that the court has to strike a balance between the interests of the applicant and those of other parties and litigants more generally.” “76. Aside from very late amendments, we do not think the perceived strength of the case is normally a factor to be taken into account when undertaking that balancing exercise … it will never be appropriate to attempt to conduct a mini trial.” “77. The general rule is that, except in the case of ‘very late’ amendments, unless it can be seen that a claim has no real prospect of succeeding, its merits should be determined at a full trial. The warnings against mini trials apply with just as much force to applications to amend as they do to summary judgment or jurisdiction disputes. The CPR do not bar litigants from pursuing claims that might at an interlocutory stage be considered weak.” iii) The approval by Sir Geoffrey Vos MR and Newey LJ of the summary of the relevant principles by HHJ Eyre QC (as he then was) in Scott v Singh [2020] EWHC 1714 (Comm) at [19]: “The new case set out in the proposed pleading must have a real prospect of success …. The approach to be taken is to consider those prospects in the same way as for summary judgment namely whether there is a real as opposed to a fanciful prospect of the claim or defence being raised succeeding. It would clearly be pointless to allow an amendment if the claim or defence being raised would be defeated by a summary judgment application. However, at the stage of considering a proposed amendment that test imposes a comparatively low burden and the question is whether it is clear that the new claim or defence has no prospect of success. The court is not to engage in a mini-trial when considering a summary judgment application and even less is it to do so when considering whether or not to permit an amendment.”

31. I take from these latter cases that it is not appropriate for the Court on an application for permission to amend, or indeed in hearing an application for summary judgement in respect of which the same principles apply, to embark upon the exercise of evaluating the weight of conflicting evidence, and that the Court is required to be mindful not only as to what evidence might be before the Court, but also as to what evidence, documentary or otherwise, might possibly be available at trial to contradict the claim. However, so long as the Court refrains from embarking upon a mini-trial, and an evaluation of the weight of contested evidence, these authorities do not, I consider, prevent the Court from concluding a claim has no real prospect of success where, as expressed by Asplin LJ in Elite Property at [41]-[42]: i) It is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance, or as Lewison J, put it in Easyair at [15(c)], because the relevant factual assertions lack reality; ii) The claimant does not have material to support at least a prima facie case that the allegations are correct, i.e., as expressed by Popplewell LJ in Kawasaki at [18], it is not sufficient simply to plead allegations which if true would establish a claim. There must be some evidential material which establishes a sufficiently arguable case that the allegations are correct. In other words, the claim must amount to more than assertion. iii) The claimant has pleaded insufficient facts in support of the case to entitle the Court to draw necessary inferences, or the pleaded case lacks sufficient coherence or particularity.” The evidence relied on by the parties

33. I bear these principles well in mind in approaching the limited evidence advanced by the parties on the Amendment Application. Procedural aspects apart, that evidence concerned principally the parties’ historical dealings. In his first witness statement dated 15 December 2025, for example, Mr Gareth Davies of Nortek explained his belief that there was no overarching agreement between 2005 and the 2010 Agreement, nor any arrangement for the amortisation of design costs or for TES’ receipt of any intellectual property rights. He also explained the process of historic document retrieval undertaken by Nortek and the preparation of a price history of the V-Series Products and sales history for the period October 2022 to October 2025 which, Nortek contended, indicated that there was, in fact, no ‘amortisation’ of costs.

34. In his first witness statement dated 15 January 2026, Mr Michael Russell, one of TES’ founders, explained his initial approach to Nortek in 2004 or 2005 to manufacture products to his specification, his agreement with Mr Trevor Davies of Nortek concerning TES’ exclusivity of supply, the limited written records kept during the period 2005 to 2010 due to most matters being agreed in person or on the telephone, the main purpose of the 2010 Agreement being to detail their earlier verbal agreements, Nortek’s recovery of design costs on an ‘amortised’ basis, TES becoming the owner of the design once those sums were settled and the 2017 Agreement confirming the parties’ exclusive supply arrangement.

35. In addition to this evidence, I was also referred by the parties to various contemporaneous documents produced at different points during their relationship said to support their position or to undermine that of the other. The scheme of the parties’ contractual relations

36. I accept the conceptual possibility of the contractual framework contended for by the Claimants on the Amendment Application. In brief, the Claimants say that:- (i) The Contract subsisted by way of oral agreement; (ii) The terms of the Contract were partly evidenced in writing and/ or arose from the parties’ course of conduct; (iii) The Contract was (in part) reduced to writing in the 2010 Agreement; (iv) The 2017 Agreement supplemented the Contract and the 2010 Agreement; (v) The 2010 and 2017 Agreements did not fully record the terms of the Contract; (vi) The Contract was not replaced by those later written agreements but operated alongside them; and (vii) The Contract endured throughout the parties’ commercial relationship.

37. As Nortek did before me, it could be said that the parties are unlikely to have conducted their dealings in this way, that the 2010 Agreement represented their entire agreement and that the 2017 agreement was no agreement at all. Nortek also pointed out a suggested tension between the different descriptions of that framework in the APoC and in the Claimants’ submissions. It is not possible for me at this stage, nor would it be appropriate on an amendment application in any event, to attempt to reach views on whether the parties did organise their contractual relations in this way. Rather, in light of the principles summarised above and Nortek’s arguments before me in opposition to the Amendment Application, the question that arises most pointedly is whether, without engaging in a mini-trial or evaluating the weight of contested evidence, the circumstances indicated by Asplin LJ in Elite Property at [41]-[42] (cited at [31(i)-(iii)] above) arise on the APoC such that it should not be permitted in whole or in part.

38. In relation to the Contract itself, having considered carefully the APoC, I am not satisfied that sufficient facts have been pleaded to entitle the Court to draw the necessary inferences as to the subsistence of the Contract (and its related terms) and/ or that it is sufficiently coherent or particularised. The Claimants introduce the Contract at paragraph 11(d) of the APoC as an oral agreement. However, they do not set out (as CPR, PD16, paragraph 7.4 requires) the contractual words used and state by whom, to whom, when and where they were spoken.

39. The Claimants then go on to say that the terms of the Contract were partially evidenced in writing, including by e-mail, but they do not identify the documents or e-mails concerned.

40. The Claimants also indicate, additionally or alternatively, that the terms of the Contract arose by course of conduct between the parties. As RTS Flexible Systems v Molkerei Alois Muller[2010] UKSC 14 makes clear (at [85]), unequivocal conduct is required on the part of both parties, communicated between them, that would lead objectively to the conclusion that they had agreed the relevant terms. For a claim based on agreement by conduct, CPR, PD16, para 7.5 also requires the particulars of claim to specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

41. In this regard, the Claimants relied generally on their plea (at [15]) that TES commissioned and Nortek designed and supplied pursuant to the Contract a number of products (identified at [15(a)-(d)]). Although these matters evidence the parties’ engagement in contractual dealings, I agree that more would be required than these actions alone to permit the inference that they had agreed the Pricing, Design Right and Exclusivity Terms. Moreover, although product ownership does obviously follow from Nortek’s early supply of V-Series Products to TES, it is far from clear what the Product Ownership Term adds here beyond its resonance with the product ownership provision in clause 2 of the 2010 Agreement. (i) Pricing Term

42. There was some elaboration in the APoC of the contentious terms of the Contract. The Pricing Term was expressed as the parties’ intention that TES would, and the reality that TES did, pay the design costs for all products designed, manufactured and supplied by Nortek for TES under the Contract. Mr Russell explained in his witness statement his understanding that the per unit price covered Nortek’s upfront manufacturing costs (and margin) as well. However, it was not clear why the parties’ intention in this regard might rise to the level of a contractual term, compared to, for example – and properly in the nature of a contractual promise – payment of the product price actually agreed by the parties (whatever their understanding as to how that price was comprised).

43. That difficulty was compounded by the conduct said to found the agreement of the Pricing Term. This comprised Nortek’s determination of the per unit price for each product, including by reference to total design costs and a minimum order quantity known only to Nortek, not to TES, and the on-charging of those costs through the supply of products at that unit price. Mr Russell referred additionally in his evidence to the provision by TES to Nortek of forecast sales volumes. Again, I cannot reach any view as to whether the parties might, in fact, have sought to ‘amortise’ design costs in this way or whether the other commercial and market considerations suggested (at [13(a)-(b)]) did bear on their actions. However, even if TES’ sales forecasts might have allowed Nortek to calculate a (design cost inclusive) unit price and minimum order quantity through which Nortek could seek recovery of that cost, the Claimants do not plead, additionally, an obligation on TES to order any product at all, let alone of that (uncommunicated) minimum quantity, or that TES accepted Nortek’s proposed charges calculated on this basis. In my view, even setting aside TES’ lack of visibility into Nortek’s pricing, the conduct relied on by the Claimants could not support a contractual term for the payment by TES of Nortek’s design costs, perhaps explaining why the Pricing Term is couched in terms of the parties’ intention. (ii) Design Right Term

44. The Design Right Term is closely related to the Pricing Term, with TES said to own any unregistered design right in products designed, manufactured and supplied by TES. Mr Russell explained in his evidence his understanding that, once the upfront design and manufacturing costs (and Nortek’s margin) had been “settled” through the ‘amortisation’ process, “TES would own the design.” The APoC admits of the Design Right Term being express or implied. However, no oral agreement (or any written evidence thereof) is identified. Nor is any specific conduct relied upon by which such a term might be said to have arisen. The Claimants do say that the Design Right Term would arise by implication in circumstances in which TES paid the design costs. However, although it seemed unremarkable, particularly given the exclusivity of supply asserted by the Claimants in respect of the V-Series Products, that Nortek would seek to recoup its design costs, it was far from clear why it would be obvious or necessary that TES should hold the design right in these circumstances.

45. Nor did I understand the suggestion that such a term fell to be implied by reason of TES’ statutory rights as first owner of the unregistered design rights under s.215(2) of the Copyright Designs and Patents Act 1988 (as was then in force). TES was either the first owner pursuant thereto or it was not. No question of an implied term arises. Nor was it explained how this statutory right could arise in circumstances in which, on the Claimants’ proposed pleading (APoC at [12(c)]), TES would not make any payment (and therefore cover the related design costs) unless and until the design was accepted and/ or acceptable to TES.

46. There is a further difficulty with the formulation of the Design Right Term. The APoC (at [14(b)]) appears to envisage TES owning the design at the outset. However, as noted, Mr Russell explained his understanding that TES would become the owner once it had settled Nortek’s upfront design and manufacturing costs (and margin) through the ‘amortisation’ described. A related difficulty arises with respect to the Claimants’ plea of a minimum order quantity. Since this was only known to Nortek, TES would not know whether and when it had acquired the design right. In fact, being a matter for Nortek alone, the minimum quantity might be fixed at a level which TES might never purchase. (iii) Exclusivity Term

47. The Exclusivity Term is framed in terms that Nortek could only manufacture products under the Contract exclusively for TES. This term was said to arise as a consequence of the Pricing and/ or the Product Ownership and/ or the Design Right Terms. The first two terms do not support exclusivity, albeit I accept that this could potentially follow from the Design Right Term, at least for the duration of the relevant right. The Exclusivity Term was said, alternatively, to arise in its own right “which formed the essence of the agreement between the parties.” However, the APoC, again, does not identify any oral agreement (or any written evidence thereof) or any specific conduct from which such a term is said to have arisen. Conclusion on the Contract

48. As canvassed, the Pricing Term does not appear to be a contractual term. Nor could the related conduct relied on support this in any event. If said to arise expressly by words or conduct, the basis for the Design Right Term is not specified. The related implied term does not follow. The Product Ownership Term is superfluous, saying little more than that Nortek sold V-Series products to TES between 2005 and 2010. The suggestion that the Exclusivity Term arises from these other terms is not explained but appears misplaced. Nor is any basis specified for that term in its own right. The APoC therefore lack sufficient factual basis, particularity and coherence to sustain the Claimants’ case with respect to those terms and, therefore, the Contract.

49. I am reinforced in my view by the rationale for the proposed amended pleading. Lest we lose sight of the wood, it is important to understand what the Claimants actually claim. Despite indicating in the Judgment that the Court remained willing to entertain a claim with respect to copyright and design right if pleaded on an alternative, legally sustainable and/ or coherent basis, the Claimants no longer seek to assert any related cause of action. The infringement claim having gone, that left the Claimants’ claim for breach of the exclusivity provisions in clause 3 of the 2010 Agreement. Clause 3 provides that:- “Any product which is manufactured from an idea or specification supplied by [TES] to [Nortek] can only be supplied to [TES] and can not be offered or replicated for any other person or company without the written agreement from a [TES] Director. All products – currently the V-series product range are exclusive to [TES].”

50. The APoC seeks to maintain the Claimants’ claim for breach of exclusivity, albeit expanded to encompass the Exclusivity Term (and paragraph 6 of the 2017 Agreement). However, the Exclusivity Term is expressed (no more widely than clause 3 of the 2010 Agreement) in terms of the requirement for Nortek to manufacture products under the Contract exclusively for TES. The Claimants do not suggest any material difference between the two. Paragraph 6 of the 2017 Agreement merely says that “ … TES has instructed the supplier not to discuss, offer or market the V-Series products without the permission of a TES Director.”

51. Given the limited focus of this claim for breach of exclusivity, it is unclear why the Claimants now seek to rely on these earlier dealings from 2005 to 2010 about products not implicated by that claim and other suggested contractual terms (and their breach). When pressed at the hearing about this, the Claimants indicated that “our case is one of continuity and perhaps of clarification”. However, this response was not meaningful. They also said that, being based on an oral or part oral contract, the Claimants would be entitled to explore the parties’ broader commercial relationship and to seek disclosure and to adduce (otherwise inadmissible) evidence as to their subjective intentions and subsequent conduct to understand what they had, in fact, agreed. The difficulty with this is that the parties clearly did agree an exclusivity term in the 2010 Agreement. It is the Claimants’ own evidence expressly relied on for the Amendment Application that “the main purpose of the [2010 Agreement] was to detail what we’ve verbally agreed over the years”. The APoC talks in terms of the 2010 Agreement reiterating and formalising “the basis of their relationship.” It is not suggested that the Exclusivity Term afforded the Claimants any rights additional to those enjoyed under clause 3 of the 2010 Agreement. If anything, clause 3 appears to be more comprehensive. Although no longer pursuing an infringement claim, the emphasis of the proposed amendments, in fact, appears to be on the Pricing Term and Design Right Term, the Claimants seeking to keep alive the argument that they own the unregistered design right in the V-Series Products. However, this does not seem to advance the claim currently in play.

52. Accordingly, apart from the difficulties already identified above, the Claimants’ proposed amendment would not be consistent with the overriding objective, envisaging some wide-ranging enquiry into matters which are, by now, historical but for no obvious purpose. I refuse permission for the Claimants to introduce their proposed amendments with respect to both the Contract and the pleaded terms it is said to have encompassed.

53. This also feeds through to a number of the Claimants’ other proposed amendments in the APoC, including those further contentious matters which I can address more briefly. 2010 Agreement

54. APoC [21] concerns the scope of the 2010 Agreement, said not to have been the parties’ whole agreement or to have varied or replaced the Contract, before going on to explain how the former recorded their existing commercial arrangements, including under the latter. Given my decision above concerning the proposed amendments with respect to the Contract, I refuse permission for this proposed amendment too. I should add that, if the 2010 Agreement included the terms pleaded under the Contract, it was unclear why this would not reflect the parties’ whole agreement. However, the terms of the 2010 Agreement are expressed differently from some of those asserted under the Contract, including with respect to calculation of product price and ownership of the design right. APOC [21] is not coherent either.

55. Relatedly, APoC [22(a)] concerns the stated purpose of the 2010 Agreement, namely “to detail the supply of goods agreement between [Nortek] and [TES]”. The Claimants say that this purpose should be read as detailing the pre-existing supply of goods agreement between them. Given my decision above concerning the proposed amendments with respect to the Contract, I again refuse permission for this proposed amendment. Moreover, as mentioned under APoC [21] above, there clearly are material differences between the Contract and the 2010 Agreement, including with respect to price and design right. APoC [22(a)] is not coherent either.

56. Given my decision concerning the proposed amendments with respect to the Contract, including the Pricing Term and Design Right Term, I also refuse permission for the proposed amendments at APoC [22(b)].

57. Likewise, being concerned with the Claimants’ alternative position if Nortek owns the unregistered design right in the V-Series Products, APoC [22(c)] is similarly irrelevant to the Claimants’ actual claim for breach of exclusivity. I refuse permission for this proposed amendment

58. The Claimants state at APoC [23] that they rely on the pre-contractual facts and matters pleaded if the parties’ prior contractual relations are found to have been superseded by the 2010 Agreement. This plea is resonant of the argument before me on the Strike-Out Application in relation to the Construction Issue. Popplewell LJ’s related observations in refusing permission to appeal are instructive:- “Although the grounds repeatedly suggest that the context and previous history of dealings between the parties was important for the purposes of construction and dictated that the construction of the clause should for that reason only be determined at trial, there is nowhere identified anything in the pleading or evidence about such “context” which would have a bearing on the construction issue so as to assist TES.”

59. As Popplewell LJ made clear, the relevant factual matrix relied upon must be identified. It must also be said to have a bearing on the meaning of the contractual term concerned. Given how the Claimants frame their case, this would be directed to the exclusivity issue. However, no relevant factual matrix has been identified against which it is said the parties’ exclusivity arrangement falls to be considered. APoC [23] is insufficiently particularised. I refuse permission for the amendment. 2017 Agreement

60. Although it disputes that the 2017 Agreement reflects an agreement between the parties at all, Nortek accepts that this is a matter that cannot be resolved on the Amendment Application. I agree that the pleaded agreement reaches the relevant merits threshold in that regard. However, given my decision concerning the proposed amendments with respect to the Contract and the pleaded terms thereof, reference to these should be removed throughout this section.

61. Nortek also says that no breach of the 2017 Agreement appears to be pleaded and it is therefore not clear on what basis its repudiation might be said to follow. Although the Claimants do, in fact, plead breach of the 2017 Agreement (APoC at [50]) by reference to Nortek’s alleged breaches set out earlier, I agree that greater specificity is required, not least given that paragraph 6 of the 2017 Agreement concerns TES’ instruction. The same is true of the related specific performance claim. Allegations of breach

62. Since the Contract (and related pleaded terms) cannot be relied on, the corresponding allegations of breach cannot either. (This also disposes of Nortek’s points concerning the breaches of the Product Ownership and Design Right Terms alleged at APoC [44] and [46].)

63. There was some criticism of the Claimants’ reliance on the alleged delay in the supply or on the non-supply of V-Series Products as constituting a breach of clause 3 of the 2010 Agreement in circumstances in which this clause was concerned not with product supply but with exclusivity of supply. Although I agree that the amendment to add the words “inter alia” should be declined as introducing uncertainty, I do not consider it appropriate to entertain dismissal of this plea on the Amendment Application. That allegation of breach did feature in the original PoC and it was not the subject of the Strike-Out Application. Ardent

64. I agree that the amendments to introduce Ardent as a party are insufficiently particularised by failing to specify which terms were varied with the effect that Ardent became the beneficiary thereof and/ or subject thereto.

65. More substantively, the fact that, following its acquisition by Ardent, TES continued to raise purchase orders against Nortek, albeit with the related communications now being between Nortek and Ardent, does not come close to conduct sufficient to give rise to such a variation, even if Nortek understood that Ardent might benefit from the products supplied. A parent company now handling purchase order arrangements for its newly acquired subsidiary does not make the parent the seller’s new customer. Nor would this be sufficient for the engagement of s.1(a) or (b) of the Contracts (Rights of Third Parties) Act 1999 either. There would need to be a variation to include in the contract between TES and Nortek a term conferring a benefit on, or permitting enforcement by, Ardent.

66. Nor have the Claimants adduced prima facie evidence of conduct of the nature that might give rise to such a variation. In fact, the documents they have disclosed confirm Ardent’s disavowal of possible contractual relations with Nortek. So, for example, in its e-mail of 10 October 2022 to Nortek, Ardent confirms that “[w]e’d like you to continue to receive orders from TES, since that’s where the agreements and relationships lie. We can put our procurement team between you and Mike if you so wish”. On 13 October 2022, Ardent confirmed that “[f]or legal and contractual reasons, it’s not feasible for us to simply raise orders from Ardent, so the PO’s will continue to come from TES.” On 11 November 2022, Ardent confirmed to Nortek that trade continued on the terms in place between TES and Nortek: “as per below we trade on previous agreements and terms until signed off by Ardent and Nortek”. In the face of such clear communication from Ardent rejecting the possibility of a contractual relationship with Nortek, the amendments proposed in this regard are fanciful. Disposal

67. I would ask that the Claimants prepare and circulate revised PoC reflecting the decisions above. I would also encourage the parties to seek to agree other consequential matters, including the draft minute of order. If a further hearing is required, the parties should let my clerk know as soon as possible.