“1.1 Purpose For the purpose of developing a Vessel type (the ‘Project’ or the ‘Vessel’), Client (the ‘Client’) has the firm intention to build a Vessel based on a design by XXX (the ‘Designer’). The Client appoints the Designer as the exclusive designer for the Project and the Designer grants the Client the right to build the Vessel based on a Designer’s developed ship design package and under terms as set out in this Contract.”
“Project: means the planned collaborative enterprise to achieve the Design of Prysmian New Build cable laying vessel.”
“Design: means all drawings, specifications and other documentation that will be produced by The Designer for this Project.”
“2.2 It is understood and agreed that if the Project materializes and a shipbuilding contract is concluded with a shipyard (the ‘Yard’), a Design Contract shall be entered into between the Designer and the Yard and all the above compensation shall be paid by the Yard. 2.3 In case the project does not materialize and a shipbuilding contact is not concluded within 31st of January 2018, the Designer shall be compensated by the Client for the Phase(s) of Supply completed in the amounts indicated above. In case the Client to request the Designer to complete the Scope of Supply for Phase 3 and 4, a separate payment schedule shall be agreed. 2.4 In case the Client has to compensate the Designer for the works performed by the Designer and accepted by the Client, the Designer shall issue an invoice for the related value to the Client, strictly following Client’s invoicing instruction. Client shall settle all approved invoices, correctly issued by the Designer, within 30 days from the date in which the invoice has been issued by the Designer.”
“As discussed on the phone, we refer to our agreement dated 1213.7.17 for design of a new cable laying vessel for our Company. As you know we have not concluded any shipbuilding contract so far inspite of having launched a tendering process to some yards since September last. Recently a yard in an effort of getting a lower price which could incentivize us to negotiate suggested a considerable reduction of the purchase price if, among others, they make the design in house. We are presently considering this proposal and have asked the yard to produce its own design and an offer to accommodate our overall objective. In the meantime we wish to thank you for the work done so far kindly ask you to stop progressing any work on our project. We shall pay you for the work done so far and in this connection we ask you to let us have computation of work done in connection with Phase 3 of the project for our consideration so that we may be mutually released from any obligation under the above agreement. Needless to say that shouldn’t we enter into a contract with the yard above we reserve to come back to you and reconsider any further cooperation.”
“WHEREAS The BUYER has launched a tender process for a shipbuilding contract (hereinafter also referred to as the ‘Contract’) of one (1) Cable Lay Vessel (hereinafter the ‘Vessel’) based on the design provided by SALT Ship Design AS (the ‘SALT Design’) as detailed in the tender package and invited the BUILDER to such tender (hereinafter called the ‘Project’). The BUILDER is participating to the tender process and proposed to develop a new design for the VESSEL, based on its design type VARD 9 04 (the ‘Alternative Design’). The BUYER has agreed to evaluate the Alternative Design with intention to sign the Contract based on the Alternative Design provided that Alternative Design fully meets the BUYER’s requirements and expectations as set out in tender documents, at its absolute discretion. Now therefore, the Parties agree that the continuation of such negotiations necessitate the issuance of this Letter of Intent and the Parties have agreed on the following: 1. PURPOSE 1.1 The purpose of this Letter of Intent is to provide common terms and provisions according to which the Parties will continue in good faith to negotiate on an exclusive basis, and if possible conclude, the Contract. The Parties acknowledge that the Project remains still subject to the internal approvals and authorizations to be given at the absolute discretion of the BUYER and/or of its Affiliates [redacted] … 3. PRICE 3.1 Subject to the execution of the Contract the contract price of the Vessel to be delivered to the BUYER at the shipyard shall be [redacted] Only [redacted] (hereinafter referred to as the ‘Contract Price. … 5. CONTRACT DOCUMENTATION 5.1 [redacted] For the avoidance of doubt, the Parties acknowledge that the Alternative Design is still under development and that the Contractual Technical Documentation is subject to the final approval of the BUYER at its absolute discretion.”
“13. SSD [Salt] reserves its rights in full, including in respect of any other claims it may have under the Agreement and/or in respect of its design for the Vessel.”
“12. […] On10 April 2018 , the Client noted the Designer’s position, and said that while it disagreed, it was willing to pay for the work done to date, and that it was also willing to refrain from using the Designer’s work in any subsequent build, notwithstanding its right to do so under the Contract.”
“Design Documents 10. SSD [Salt] is concerned by the suggestion in paragraph 12 of your letter that PP [Prysmian] is entitled under the Agreement to use SSD’s work ‘in any subsequent build’. Article 6.4 states that SSD shall retain all intellectual property rights related to the Scope of Work. Article 6.2 envisages that PP shall have a licence to use SSD’s Design Documents, but only on the terms of a ship design contract between SSD and the shipyard engaged for the Project. For obvious reasons, no such agreement has been made, and, therefore, PP has no right to use work produced by SSD in respect of the Project, either for the Project or for other purposes. 11. SSD reserves all of its rights in respect of any infringement of its intellectual property rights.”
“4. The Defendant has provided written assurances by its solicitors that it is not using the Claimant’s designs. The Claimant reserves the right to bring further claims should it later appear that the Claimant’s designs have been used in breach of the Contract and/or in breach of the Claimant’s intellectual property rights.”
“28. In the circumstances, the Project has materialised and Prysmian has entered into a shipbuilding contract, but in breach of clause 1.1 and/or clause 2.2 of the Contract, Prysmian has not procured that Salt be the designer of the Vessel. In further breach of clause 1.1 and/or clause 2.2 of the Contract Prysmian has not procured that the Yard contract with, and in fact pay, Salt for such design work in accordance with the Contract, or alternatively in accordance with a separate contract made on or about14 February 2018 .”
“23. As to Paragraphs 25 and 26, it is admitted that Prysmian has entered into a shipbuilding contract with Vard. Otherwise Paragraphs 25 and 26 are denied. The shipbuilding contract is for the construction of a cable laying vessel to be designed by Vard. Salt’s design work has not and will not be used in the construction, and/or the shipbuilding contract with Vard is not based on the Scope of Supply under the Contract. As such, Prysmian has not brought ‘the Project to fruition’ as alleged but embarked upon the construction of a different vessel.” ‘the Project to fruition’ as alleged but embarked upon the construction of a different vessel.”
“19. The penultimate and final sentences of paragraph 23 are not admitted, but in any event their relevance is denied. [1] The Project comprised the design and construction of a new build cable laying vessel for Prysmian, and such Project has come to fruition based on Prysmian’s admission that it has entered into a contract for the design and construction of such a vessel. 20. Alternatively, [2] Salt will contend that the Project consisted of the design and construction of an advanced cable laying vessel capable of carrying a market leading payload of cables in two carousels, and laying cables to a market leading water depth, or in the further alternative [3] the Project consisted of the design and construction of any vessel with a materially similar specification to the Contract Specification. Pending disclosure from Prysmian, based on its current information and belief, Salt will contend that the Project has also come to fruition if either of these alternative constructions of the Contract is correct. 21. If (which is denied on Salt’s primary case) the Project only concerned the construction of a vessel with a materially similar specification to the Contract Specification, then Prysmian’s allegations that the shipbuilding contract with Vard is not ‘based on’ the Scope of Supply under the Contract, and that Prysmian has embarked upon the construction of a ‘different vessel’, are vague and unparticularised. Salt is unable to identify what Prysmian’s case is as to whether any aspects of the technical specification of the vessel Prysmian has contracted with the Yard to construct are materially the same as, or materially similar to, the technical specification of the Vessel to be designed by Salt under the Contract. Prysmian is required to particularise the differences it alleges. Prysmian is further required to prove the matters alleged in the penultimate and final sentences of paragraph 23, including by reference to the precise technical specification of the vessel being constructed by Vard.”
“15. Has the Defendant, by reason of concluding the shipbuilding contract after31 January 2018 (described in Paragraph 11 above), brought the Project to fruition or has the Project not materialised? As to this, and to the extent relevant on the true construction of the Contract: (1) Has or will the Claimant’s design work be used in the construction by Vard? (2) Is the shipbuilding contract with Vard based on the Scope of Supply under the Contract? (3) Will the cable laying vessel being constructed by Vard have a materially similar specification to the Contract Specification?”
“1. Whether either parties’ pleadings require amendment prior to service of factual and expert evidence.”
“We are doubtful whether even applying the principle stated by Bowen LJ [in Cropper v Smith], the matter is as straightforward as [counsel for Worldwide] would seek to persuade us. But, in addition, in previous eras it was more readily assumed that if the amending party paid his opponent the costs of an adjournment that was sufficient compensation to that opponent. In the modern era it is more readily recognised that in truth the payment of costs of an adjournment may well not adequately compensate someone who is desirous of being rid of a piece of litigation which has been hanging over his head for some time, and may not adequately compensate him for being totally (and we are afraid there are no better words for it) ‘mucked around’ at the last moment. Furthermore the courts are now much more conscious that in assessing the justice of a particular case the disruption caused to other litigants by last minute adjournments and last minute applications have also to be brought into the scales.” “Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants? The only answer which can be given and which, [counsel for Worldwide] has suggested, applies in the instant case is that without the amendment a serious injustice may be done because the new case is the only way the case can be argued, and it raises the true issue between the parties which justice requires should be decided. We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants requires him to be able to pursue it.”
“… the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on the party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.”
“A point which also seems to me to be highly pertinent is that, if a very late amendment is to be made, it is a matter of obligation on the party amending to put forward an amended text which itself satisfies to the full the requirements of proper pleading. It should not be acceptable for the party to say that deficiencies in the pleading can be made good from the evidence to be adduced in due course, or by way of further information if requested, or as volunteered without any request. The opponent must know from the moment that the amendment is made what is the amended case that he has to meet, with as much clarity and detail as he is entitled to under the rules.”
“In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new case and why justice requires him to be able to pursue it. These principles apply with even greater rigour to an amendment made after the trial and in the course of an appeal.”
“Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted.”
“(1) the history as regards the amendment and the explanation as to why it is being made late; (2) the prejudice which will be caused to the applicant if the amendment is refused; (3) the prejudice which will be caused to the resisting party if the amendment is allowed; (4) whether the text of the amendment is satisfactory in terms of clarity and particularity.”
“While there has been in recent times a tendency to put labels on ‘late’ and ‘very late’ amendments, it is submitted that such categorisation is rarely helpful, given that lateness is only a relative concept, and it is necessary to take into account all the circumstances in accordance with Swain-Mason.”
“In my judgment there are not, as [counsel for Rose] suggested, a series of separate categories with bright-line divisions between them and with different approaches applicable to the separate categories. Rather there is a continuum or spectrum with different factors likely to carry different weight at different points on the continuum.”
“Our client has requested earlier versions of technical documents because the evolution of the design implemented by Vard is likely to be instructive with regard to points (a) to (c) above, and because it would not be difficult for Prysmian to make them available. As to paragraphs 18-20 in your letter, the Letter of Intent and GA Plan have left Salt in no doubt that its design work is being used in the construction of the vessel being built by Vard. The similarities between the GA Plan and Salt’s design for the Project are evident, and the Recitals to the Letter of Intent make explicit that the ‘Vessel’ for which Vard was proposing an ‘Alternative Design’ to Prysmian was the same Vessel that Salt had provided a design for. The Recitals also use the term ‘Project’ to describe this same Vessel.”
“Our client does consider that its design has been used and it intends to list the common features. It will however take time to complete that exercise, and it should not be a precondition to disclosure of the technical documents requested. The documents are relevant and there are not enough of them to make proportionality a pertinent consideration.”
“6.4 [1] The design, data, documents and know-how and all relevant copyrights, patents or other intellectual property rights related to the Scope of Work supplied by Designer under this Contract shall remain the intellectual property of Designer, even if not specifically so marked. However, any relevant copyrights, patents or other intellectual property rights supplied by the Client shall remain the property of the Client. [2] Both parties acknowledge that secrecy related to proprietary design solution is of outmost [sic] importance, and no documents describing design solutions based on input provided by the Client, related to topside layout details, mission critical equipment or interface of such equipment into the Vessel can be made accessible to third persons without Client’s and Designer’s prior consent – unless such design solutions are, or in the future comes into public domain. For the avoidance of doubt, the aforementioned shall not prevent the client to use such documents for the purposes of marketing the Vessel to its client(s) or for tendering purposes. Furthermore, the parties will agree on a design presentation, including 3D rendering of the Vessel and key vessel information which can be used by both parties when presenting the vessel to third persons. [3] The Client may disclose relevant documentation only to its suppliers and employees on a need to know basis. The Client is not entitled to send or make available the General Arrangement and/or Building Specification as a complete document to a third party, including any suppliers, but excepting the Yard, without the prior approval of the Designer.”
“9a. Pursuant to the second paragraph of clause 6.4 of the Contract, both parties acknowledged that the confidentiality of the proprietary design solutions was of utmost importance. In the premises, an obligation of confidentiality on Prysmian arose under the Contract in relation to the design solutions that remained the intellectual property of Salt under the first paragraph of clause 6.4”
“9b. The second paragraph of clause 6.4 further gave rise to an obligation on Prysmian not to disclose or otherwise use any know-how or documents setting out the design solutions devised by Salt within the Scope of Work under the contract and based on input provided by Prysmian (the ‘Restricted Know-How’). Examples of Restricted Know-How include the confidential General Arrangement and Building Specification documents produced by Salt under Phase 1 and 2 of the Contract.”
“9c. The Restricted Know-How and the intellectual property rights vested therein are the property of Salt, pursuant to the first paragraph of clause 6.4.”
“Vard did not start with Salt’s concept design and then adapt it. That was not necessary or what was agreed.”
“Further, in or around February 2018, the precise date being unknown, Prysmian, V. Delta and/or Vard combined with intent to injure Salt by unlawful means”
“The intent to injure Salt is inherent in the nature of the acts pleaded above, in particular from the requirement that Vard base its further design work on Salt’s design of the Vessel and thereby using the Restricted Know-How.”
“60. Salt is a ship design business, and depends on proper protection of its intellectual property. Without the ability to bring claims (whether by amendment or otherwise) for infringement of that intellectual property, ultimately Salt’s business will be steamrollered by the activities of far larger businesses such as Prysmian and Vard (Fincantieri).”
“Given that this is a ‘very late’ amendment, the Claimant’s delays should be the predominating consideration and the application dismissed on this ground alone.”