AMEC Group Ltd. v Universal Steels (Scotland) Ltd [2009] EWHC 560 (TCC)

[2009] EWHC 560 (TCC)Case No TCC2409
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
Venue Manchester Civil Justice Centre,, Crown Square, ManchesterDate 25/03/2009
Before
MR JUSTICE COULSON
Between
AMEC GROUP LIMITEDApplicantUNIVERSAL STEELS (SCOTLAND) LIMITEDRespondent
Mr Simon Hargreaves (instructed by Pinsent Masons) for ApplicantMr Abdul Jinadu (instructed by Capital Law LLP) for RespondentHearing Hearing date: 11th March 2009
Judgment

INTRODUCTION

[1]This is the Judgment arising out of the claim by the applicant, AMEC Group Limited (“AMEC”) for an interlocutory injunction. The injunction requires the respondent, Universal Steels (Scotland) Limited (“USSL”), to deliver up to AMEC Quality Assurance documentation in 15 separate categories relating to four jetty piles manufactured by USSL for AMEC. I granted an ex parte injunction in favour of AMEC on Monday 2nd March 2009, which was varied by agreement between the parties on Thursday 5th March 2009. Pursuant to that agreement, the USSL Quality Assurance documentation is now in the possession of AMEC’s solicitors, Pinsent Masons, but subject to an undertaking that the documentation will not be provided to AMEC until the dispute had been the subject of a full hearing and this Judgment.[2]The dispute as to the QA documentation arises out of a contract between the parties made in August 2007 and evidenced, amongst other things, by USSL’s quotation dated 1st August 2007 and AMEC’s Purchase Order dated 24th August 2007. Pursuant to that contract, USSL agreed to fabricate and deliver to AMEC four jetty restraint piles and pile caps for installation at a new berthing facility at the Naval Dockyard in Clyde. There is no dispute between the parties that one of the terms of that contract was that USSL would provide QA documentation in 15 separate and identified categories.[3]Commercial disputes have subsequently arisen between the parties. USSL claim to be owed around £350,000 by AMEC. AMEC contend that they have a cross-claim against USSL for a figure in excess of £500,000. Hitherto, USSL have refused to provide the QA documentation unless and until they are paid the outstanding sums that they claim to be owed by AMEC.

APPLICABLE PRINCIPLES OF LAW

[4]This is an application for an interim injunction. Thus the starting point (and in many cases the end point, too) is the decision of the House of Lords in American Cyanamid Co v Ethicon Limited [1975] A.C. 396. The three stage test set out in that case is dealt with in detail in paragraph 15-7 and onwards of Volume 2 of the White Book, 2008. Essentially the court must first ask: is there a serious question to be tried? If there is, then the court must go on to decide whether damages are an adequate remedy for a party injured by the court’s grant of, or its failure to grant, an injunction. Thirdly, if damages are not an adequate remedy, it is necessary to consider the balance of convenience.[5]This is an application for a mandatory injunction; that is, AMEC are not seeking to prohibit USSL from doing certain things; they are, instead, seeking to require USSL to do something specific, namely the provision of the QA documentation. In such cases, the relevant guidance can be found in the decision of Chadwick J (as he then was) in Nottingham Building Society v Eurodynamics Systems Plc [1993] FSR 468. The learned

judge said:

“In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’… Secondly, when considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo. Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish his right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted. But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted.”
[6]In the subsequent case of Zockoll Group Limited v Mercury Communications Limited [1998] FSR 354, the Court of Appeal referred to the four matters outlined by Chadwick J in Nottingham and said that such guidelines in cases of mandatory injunctions were “all the citation that should in the future be necessary.”[7]The other factor that is or can be relevant is the extent to which the determination of the application at an interlocutory stage will amount to a final determination of the rights and obligations of the parties. That point was addressed in NWL Limited v Woods [1979] WLR 1294. Lord Diplock said that cases where the grant or refusal of an injunction at the interlocutory stage would, in effect, dispose of the action finally in favour of whichever party was successful in the application, were exceptional “but when they do occur they bring into the balance of convenience an important additional element”. He concluded:
“Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm which will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.”
[8]I take that passage as the definitive statement of guidance as to the approach necessary in cases where the determination of the interlocutory application may be an effective disposition to the parties’ rights and obligations. Although there are a number of later cases on this topic, they turn largely on their own facts. A good example is Cayne v Global Natural Resources PLC [1984] I All ER 225 in which, on the unusual facts of that case, the granting of an injunction to the claimant would have meant that he would have control of the defendant company and there would therefore have been no subsequent trial at all.[9]Accordingly, in the present case, where the claim is for a mandatory injunction and where there is at least the potential for this decision amounting to a final disposition of the parties’ rights, I conclude that: a). I must follow the three stage test set out in American Cynamide; b). I must have a high degree of assurance that AMEC are likely to be successful at trial (Nottingham); c). I must, as Mr Jinadu put it, “tread carefully” in weighing the risks because of the possibility that my decision will amount to a final disposition of this dispute between the parties (NWL).

BACKGROUND FACTS

[10]It is unnecessary to set out the contract terms. The parties are properly agreed that, amongst USSL’s obligations, was the obligation to provide the 15 categories QA documentation when the four jetty restraint piles were supplied to AMEC. In Mr Jinadu’s written submissions, a point was tentatively advanced to the effect that USSL retained title in the QA documentation until the sums outstanding to them were paid, but that argument was not made orally and it seems clear that the point was a bad one. As Mr Hargreaves pointed out, this was not a claim in rem for the documents, and the claim has nothing to do with title as such.[11]It is clear from the evidence adduced by USSL’s Mr Inglis that the contract was delayed from the outset. In the period between August 2007 and August 2008, USSL experienced numerous problems with their manufacturing sub-contractor in China. That sub-contractor, Ningbo, had problems with its steel mill and there were subsequent difficulties with the quality of the plate. The manufacture of the piles was delayed as a result. Further problems arose when Ningbo’s plant was closed by the Health and Safety Executive of the Chinese Government and a different yard for the painting of the piles had to be found. To cap it all, there were then problems with finding a suitable company to ship the piles from China to Scotland.[12]It was unclear why Mr Inglis’s statement dealt in such detail with these matters. Mr Hargreaves correctly made the point that all of these problems were USSL’s responsibility under the terms of their contract with AMEC and Mr Jinadu expressly accepted that proposition. Moreover, that acceptance was made clear in the contemporaneous correspondence. For example, on 30th July 2008, AMEC, as part of the joint venture constructing the new berthing facility, made plain in a letter to USSL that they were in breach of contract and sought ways in which that breach might be remedied. In their response of 1st August 2008, USSL expressly accepted that AMEC “have been extremely reasonable and tolerant in the face of protracted delays… this is most appreciated.” They did not deny their breaches of contract.[13]During August 2008, against a background in which AMEC were making it plain that USSL were “still in breach of contract and… have no means of remedying that breach” (see the e-mail of 7th August 2008), AMEC resolved to take over the responsibility of, first, the shipping of the piles to Scotland and, subsequently, the manufacture of the piles themselves.[14]AMEC’s taking over of the shipping obligation was made plain in a letter to USSL on 24th August 2008, which again reiterated USSL’s breach of contract. On 27th August, there was a meeting at which the possibility of AMEC taking over the contract with the Chinese agents, Wuxi, directly was first identified. In the notes of that meeting, amongst other things, it was made plain that, if these changes went ahead, the Letter of Credit, which had earlier been provided by AMEC to USSL and was already the subject of numerous amendments, would need to be revised again.[15]On 29th August 2008, there was a meeting between Mr Inglis of USSL and Mr Woodward and Mr Geddes of AMEC. It is Mr Inglis’s case, as set out at paragraphs 53-64 of his witness statement, that the parties reached a binding agreement as to the terms on which USSL would release Wuxi to deal with AMEC direct. Amongst those agreed terms, according to Mr Inglis, were the following: a). USSL would retain the relevant obligations in relation to the QA documentation; b). All of AMEC’s claims for damages for breach of contract against USSL were compromised/waived; c). Amendments would be made to the Letter of Credit to ensure that USSL were paid upon the delivery of the QA documentation; d). An interim payment would be made to AMEC.[16]There are hand-written notes of this meeting prepared by the three participants. It is clear from those notes that Mr Inglis was proposing that an unspecified sum would be paid on account; and that further unspecified sums would be paid when the piles were loaded and on the provision of the QA documentation. The notes refer to these proposed payments as ‘£x, £y and £z’. Mr Inglis tabled a document at the meeting which indicated a proposed total sum to be paid to USSL of £556,849.96.[17]On 5th September 2008, Mr Inglis sent Mr Geddes an e-mail in these terms:
“Please find attached the mechanics to amend the Credit recognising that we have no responsibility now for shipping matters, combined with our agreement in principal (sic) reached during our meeting last Friday [29th August] in the Dakota Hotel…”
[18]Attached to that was a lengthy letter addressed to Mr Geddes, identifying the proposed amendments to the Letter of Credit. Those amendments were introduced with these words:
“Further to our meeting and tabling of costs of Friday last, with yourself and Andy Woodward, agreement in principal reached for Amec to visit with our supplier Wuxi Ruijie Ltd in order to take our P.O. 2055 relevant to elements of the completion of the Restraint Piles and Pile Caps and our conversation of this morning…”
One of the amendments referred to the “Beneficiary Certificate stating that the Relevant Test Certification has been forwarded to [AMEC].” The expiry date of the amended letter of credit was proposed to be 21st October 2008. Again the sum of £556,849.96 was proposed as the sum still due to USSL. The interim payment proposed by Mr Inglis was £175,000. It appears that this was the first time that that figure had been identified. The amendment document finished with these words:
“c. USSL will provide substantiated costs, which shall be finally and not unreasonably agreed between the parties. It required the Credit can be finally amended in recognition of such agreed costs. d. USSL shall be entitled to approach the Credit, only at the time of the vessel sailing and the presentation of the relevant Test Certification. I trust you agree the foregoing is an accurate statement of our agreement in principal to date and you can instruct NatWest to amend the Credit accordingly.”
[19]There is an internal AMEC e-mail of 9th September 2008 which demonstrated that there were perceived difficulties with the proposed Letter of Credit arrangements, in part because Wuxi were also seeking a Letter of Credit, and there were problems with having two such Letters of Credit in respect of the same work. The internal e-mail of 9th September said that USSL was “looking to maintain an unacceptable Level of Credit bearing in mind what he has actually done for us.” It seems, however, that the sum of £100,000 (less than the sum sought by Mr Inglis) was paid on account by AMEC to USSL.[20]The Letter of Credit was not amended, and Mr Inglis’s notes of 1st October 2008 make plain that he was ‘progressing the AMEC settlement’. On 7th October, he signed a document entitled ‘The Receipt’ in these terms:
“I had received the NDT report of final ten welding irons of SSN berthing facility piles. I will put these documents together with other related documents into the approved format and will submit all the final certificates for SSN berthing facility piles before the piles arrive in Inchgreen.”
The document makes no reference to the submission of the QA documents being dependant upon payment to USSL. For reasons which Mr Inglis has not explained, the submission of those QA documents in accordance with that receipt has not happened.[21]Furthermore, in a letter of 13th November 2008, AMEC’s joint venture wrote to USSL pointing out that, at a meeting on 3rd November 2008, USSL had agreed ‘to transmit all current quality documentation relevant to the four restraint piles…no later than 8th November 2008’. There was no reply from USSL to suggest that such a promise had not been made.[22]Thereafter, USSL refused to provide the QA documentation. They took the title point, which was a bad one and has subsequently been abandoned (see paragraph 10 above). The other point taken in their correspondence, and that of their solicitors, was to the effect that they had a commercial interest in retaining the QA documentation. At no time in any of that subsequent correspondence, and at no time prior to the commencement to these proceedings, did USSL suggest that there was a binding agreement in August 2008 to the effect that the documentation would only be provided on payment of the outstanding sums due to USSL.[23]The present position is this: a). USSL claim that AMEC owe them around £350,000. b). AMEC say they have a cross-claim against USSL, arising out of the delays etc, for in excess of £500,000. c). The QA documentation is required for inspection by the Ministry of Defence, because they need to approve the QA documentation before the jetty piles are installed. d). There is a ‘window’ for the jetty piles to be installed in May 2009. If they are not installed at that time then, because of the changing tides, the jetty piles cannot be installed until October 2009. e). In order for the piles to be installed in the May window, the Ministry of Defence require the QA documentation by no later than 1st April 2009.[24]It was against that background that I granted the ex parte injunction and subsequently varied that injunction in the manner referred to in paragraph 1 above. The issue now is whether the injunction should be varied so that the QA documentation currently held by Pinsent Masons can be released to AMEC or whether, conversely, the injunction should be discharged altogether and the documents returned to USSL.

THE ISSUE BETWEEN THE PARTIES

[25]The issue between the parties that has arisen in these proceedings is this: Was there a binding agreement between the parties, reached at the meeting on 29th August 2008, that: a). AMEC would waive their claims against USSL; b). AMEC would pay all the outstanding sums to USSL before USSL provided the QA documentation.[26]If there was such a binding agreement, then AMEC were not entitled to the QA documentation because, at least on USSL’s case, they have not paid all the outstanding sums due to USSL. If there was no such agreement then, pursuant to the terms of the contract, AMEC are entitled to the QA documentation forthwith. In that event, USSL’s claims for the sums it claims to be owed, and AMEC’s cross-claims for damages, could then be resolved by the court or by an arbitrator in the usual way.

SERIOUS ISSUE TO BE TRIED?

[27]It is plain that the issue identified in Section D above constitutes a serious issue to be tried; indeed, USSL did not and could not suggest otherwise. However, it is necessary for me to consider in a little more detail the parties’ respective cases on the merits of that issue because, given that this is a claim for a mandatory injunction, and given that this Judgment may be determinative of the parties’ underlying rights, I must have a high degree of assurance that, in relation to that serious issue to be tried, AMEC are likely to succeed at trial. For the reasons set out below, I have that high degree of assurance; indeed, my impression is that some parts at least of USSL’s case on the issue are so weak as to be fairly described as hopeless.[28]The first important matter to note is that, although Mr Inglis’s statement suggested that there was a binding agreement reached on 29th August, in which the two key elements were agreed (the waiver of AMEC’s cross-claims and their agreement to pay USSL prior to release of the QA documents), Mr Jinadu’s submissions realistically accepted that such a case was not borne out by USSL’s own documents. In my view, Mr Jinadu was bound to make that concession given that, on Mr Inglis’s own documents of 5th September 2008 (paragraphs 17 and 18 above), all that ever happened on 29th August was an agreement “in principle”. That shift represented a significant weakening of USSL’s position, as Mr Hargreaves pointed out.[29]In truth, I can see no obvious way in which USSL can maintain that they reached a binding agreement of the sort canvassed in Mr Inglis’s statement, when it is now accepted that this was simply an agreement in principle, or more accurately, ‘an agreement to agree’. Of course, I bear in mind that this is not a final determination of the issue, but I am in no doubt that this change of case, and the USSL documents of 5th September, make it much more likely than not that, should this issue ever come to trial, AMEC will successfully demonstrate that all that was achieved on 29th August was a non-binding agreement to agree.[30]Secondly, it is plain from the notes of the parties who attended the meeting that no payment figures were ever agreed. The notes prepared by the participants referred to the three payments by way of ‘£x, £y and £z’. Mr Inglis’s documents of 5th September appear to accept that no figures were agreed at the meeting, because those very documents show that he was trying to get AMEC to agree the figures which he was proposing. The absence of agreed figures is important because, once the figures were agreed and inserted into the amendments to the Letter of Credit, USSL would be entitled to those sums without further ado. But in the absence of any agreed figures - and it appears likely that no figures ever were agreed - and therefore in the absence of agreed amendments to the Letter of Credit, my view is strengthened that this was simply an agreement to agree.[31]Thirdly, and related to the previous point, Mr Inglis’s proposed amendments to the Letter of Credit make clear that the figures to go into the amendments would be based on ‘substantiated costs’, and that these would be provided by USSL. That is what is referred to in the extract from the proposal at clause c, set out at paragraph 18 above. These substantiated costs have never been provided. In addition, the Inglis documents contradict any suggestion that, on 29th August 2008, AMEC were agreeing that figures based on unsubstantiated costs would go into the Letter of Credit, and therefore become payable on demand to USSL. There is nothing in any of the contemporaneous material to suggest that AMEC agreed to such an unusual (and commercially risky) provision.[32]Fourthly, there is the alleged agreement as to AMEC’s waiver of its own cross-claims against USSL. On the material I have seen, I find it impossible to see how USSL could establish any such agreement on 29th August. No such agreement is referred to in any of the contemporaneous notes. No such agreement is alleged by Mr Inglis in his documents of 5th September 2008. Moreover, Mr Inglis’s subsequent notes, of the meeting on 18th November 2008 in particular, make plain that he was proposing then that AMEC withdraw their counter-claim. If he was proposing that in November, it can hardly have been agreed 4 months earlier in August.[33]In addition, no reason or explanation as to why AMEC should have agreed to such a waiver has ever been provided. After all, it is common ground that the delays were USSL’s responsibility under the contract and that AMEC had repeatedly asserted their right to claim in consequence of USSL’s breaches of contract. AMEC would have had no reason at all suddenly to waive all such accrued rights.[34]For these two reasons, I consider that, on the material that I have seen, the suggestion that AMEC agreed to waive their rights to make any cross-claims against USSL to be hopeless.[35]Fifthly, as I have already pointed out, at no time in the subsequent correspondence did USSL assert that there was a binding agreement of the kind suggested in Mr Inglis’s witness statement, or allege that, in some way, AMEC had failed to comply with such an agreement. Mr Hargreaves rightly submitted that USSL had done nothing since 29th August to assert, let alone enforce, its alleged right to have a Letter of Credit in place. It seems to me that this wholesale omission again points to the conclusion that there was simply no such binding agreement.[36]For those reasons, therefore, I have the necessary high assurance that AMEC are likely to succeed on this issue at trial and will be able to demonstrate that there was no agreement on 29th August of the kind suggested by Mr Inglis in his witness statement.

WOULD DAMAGES BE AN ADEQUATE REMEDY?

[37]I do not think that it is seriously disputed that, if I discharge the current injunction, so that the QA documentation is not provided to AMEC, damages would not be an adequate remedy for AMEC if it subsequently transpires that I was ‘wrong’ to have done so. There are two reasons why, on any view, damages are not an adequate remedy for AMEC in such circumstances. First, the QA documentation cannot be reproduced by another company, and some aspects of the QA approval could only be replicated if parts of the individual piles were destroyed so that some of the original welding, painting and the like could be rechecked. That would obviously be wholly impractical.[38]Secondly, it is clear that, if the piles are not installed in May, they cannot be installed again until October. AMEC would plainly suffer serious financial loss in consequence of such delay, and may well also be liable up the contractual chain to the Ministry of Defence. They would not be able to recover such losses against USSL. USSL are an extremely modest company without any significant assets and would be wholly unable to meet any sort of significant judgment ordered against them. That point is not disputed; indeed, as we shall see, Mr Jinadu seeks to rely on USSL’s impecuniosity for other purposes.[39]Would damages be an adequate remedy for USSL if I grant the injunction and it subsequently transpires that I should not have done so? On the face of it, the answer is obviously Yes. If I order that the documents be provided to AMEC, and it turns out at a trial that I was ‘wrong’ to do so, then it would be because, despite my serious scepticism about their case as expressed above, USSL would have persuaded the trial judge that the agreement in August 2008 was a binding agreement containing the terms which they allege. In those circumstances, they would be entitled to their £350,000 and they would also be entitled to interest for being kept out of that money. There is no doubt that AMEC are able to pay any sums awarded. In that way, USSL would be fully compensated for the ‘wrong’ decision having been made. Accordingly, so it seems to me, damages would be an adequate remedy for USSL. That is a further significant factor which militates in favour of varying the terms of the current order so as to allow AMEC to have the QA documents.[40]It was Mr Jinadu’s submission that, because of USSL’s financial position, damages would not, after all, be an adequate remedy. He said that USSL would not be able to afford to attend a trial at which these matters were tested and that therefore they would never get the opportunity to prove that the interlocutory injunction had been wrongly granted.[41]There were a number of difficulties with this argument. First, there was no evidence to that effect, and Mr Jinadu made it plain on at least one occasion that he did not have any instructions on this part of his case. Secondly, I pointed out to him that such a position did not seem to be logically consistent with USSL’s other contention, which was that there should be an expedited trial of the issue at Section D above, with oral evidence, as soon as possible. As I put it to Mr Jinadu, it was difficult to see how USSL could afford to fund a trial of the issue, say next month, but could not afford to fund a trial in May or June.[42]Mr Jinadu’s explanation suggested that the trials would be different. He said that, if the court concluded that the injunction should be varied such that the QA documentation was handed over to AMEC, the court would have decided that USSL’s case on the agreement in August 2008 was wrong and had failed. Thus, he said, any subsequent trial would not be in relation to that alleged agreement, but would instead be concerned with the detail of USSL’s claim and AMEC’s cross-claim. Such a full-blown trial, he submitted, would be much more expensive than a trial on the existence or otherwise of the August agreement.[43]It seemed to me that, with respect to Mr. Jinadu, there was a fundamental fallacy at the heart of this comparison. If I concluded that, in accordance with the legal principles set out in Section B above, the injunction should be granted, I am would not be deciding that there was no agreement in August 2008. I have considered that issue in detail in order to satisfy myself that I have the necessary high degree of assurance that AMEC are likely to succeed on it at trial. But I have made plain that I have not and cannot finally decide that issue: that must await a trial with oral evidence. Thus, the trial on the issue identified at Section D above, which Mr Jinadu said USSL were willing and able to attend in the next few weeks, would be precisely the same trial, even if it took place in May or June.[44]In those circumstances, so it seems to me, USSL’s financial position is nothing to the point. It is a matter for them whether they take part in a trial on the issue identified in Section D, whether that trial happens sooner or slightly later. That cannot affect whether damages are an adequate remedy if I grant the injunction, and it subsequently turns out that I should not have done so. Accordingly, for those reasons, I am in no doubt that damages are an adequate remedy for USSL.

BALANCE OF CONVENIENCE

[45]Since I have a high degree of assurance that AMEC will be successful on the relevant issue at trial, and since I have also concluded that damages will not be an adequate remedy if I do not grant the injunction in favour of AMEC, but would be an adequate remedy if I granted the injunction, then, on one view, AMEC have made out their case for the interlocutory injunction and it is unnecessary for the court to go on to consider the balance of convenience. However, in deference to counsel’s careful submissions, I consider that I should do so. I undertake that exercise by reference to the seven guidelines on the general topic of the balance of convenience identified by Browne LJ in Fellowes and Son v Fisher [1976] I QB 122. They are set out at page 2525 (paragraph 15-10) of Volume 2 of the White Book 2008.[46](1) For the reasons set out above, damages are not an adequate remedy for AMEC. (2). Damages are an adequate remedy for USSL, again for the reasons set out above. There is no doubt that AMEC would be in a position to pay such damages. (3). If (which I doubt) the question of the balance of convenience arises at all, then, having regard to all the matters set out above, I conclude that the balance of convenience favours the granting of the injunction. In this respect, I place particular emphasis upon the strength of AMEC’s case on the underlying issue, and the weakness of USSL’s case on that same issue. (4). The factors are not evenly balanced. This is not a case where the status quo has any real relevance. On the contrary, I consider that the balance of justice is very much in AMEC’s favour. (5). For the reasons set out above, AMEC’s disadvantages are not capable of being compensated in damages, whereas USSL’s disadvantages are capable of being compensated in damages. (6). If there is any need to take into account the relative strengths of the parties’ respective positions then, for the reasons I have given, AMEC are in a much stronger position than USSL. (7). The special factors are those outlined in Nottingham. Those favour AMEC because I have a high degree of assurance that AMEC will be successful on the underlying issue at trial.[47]I ought to deal briefly with two separate arguments put forward by Mr Jinadu on the balance of convenience.[48]First, he submitted that it would be wrong to grant the injunction because, if I did so, I would be depriving USSL of a trial before ordering the release of the documents, and therefore depriving them of the opportunity of testing the existence of the alleged agreement in August 2008 by way of cross-examination. Mr Jinadu said that it was a fundamental right of a party to cross-examine the other side’s witnesses on an argument such as this.[49]There are three separate reasons why I reject that argument. First, simply as a matter of practical logistics, there cannot be a trial, with oral evidence and so forth, before the deadline of 1st April 2009. It was not easy to fit in the half day appointment (and the subsequent judgment-writing time) to deal with this interlocutory injunction. Thus, if the decision on the QA documentation had to await a full oral hearing, then AMEC’s May installation window would have been lost. That is a point in favour of granting the injunction.[50]Secondly, to the extent that it is relevant to the balance of convenience, then, as I put to Mr Jinadu in argument, I would be weighing the alleged advantage to USSL of having an oral hearing before the documentation issue is decided, against the delay and financial loss to AMEC that would eventuate if the May window was lost, for which they could never be compensated. I am bound to say that, in any such balancing exercise, the need for the piles to be installed during the May window is overwhelmingly more important than the desirability of an oral hearing before the QA documentation issue is decided.[51]Thirdly, for the reasons that I have already indicated, it is wrong to say that a decision granting the injunction would deprive USSL of their right to test their case as to the existence of the August 2008 agreement at an oral hearing. This Judgment does not replace such a hearing and, at a trial, USSL may be able to persuade the court that there was such an agreement. Accordingly, USSL are not deprived of any such rights.[52]What USSL are deprived of, if the injunction is granted, goes to Mr Jinadu’s second point. He makes the case that, in the current circumstances, USSL are entitled to seek to take commercial advantage of the fact that they still hold the QA documentation. Up to a point, of course, I accept that there is such a commercial advantage, which USSL would be deprived of if the injunction is granted. But if I have a high degree of assurance, which I do, that USSL are not entitled to retain the documents, then what they are doing is merely seeking to exploit their physical possession of the documents for financial gain. That nudges them close to a position in which they are seeking to take advantage of their own wrong (failing to provide the QA documentation). In my judgment, I should be reluctant to assist a party to achieve such an end if, as here, I have concluded that their position on the facts is so weak.

CONCLUSIONS

[53]For the reasons that I have set out above, I conclude that AMEC have made out an overwhelming case that the injunction presently in force should be maintained, and should be varied so that these QA documents can be released to them as soon as possible. There is a serious issue to be tried on which, for the reasons set out in Section E above, I have a high degree of assurance that AMEC are likely to succeed at trial. I regard USSL’s case on that issue as weak, also for the reasons set out in Section E.[54]For the reasons set out in Section F above, it is plain to me that damages would not be an adequate remedy for AMEC if I did not grant the injunction, and it turns out that I should have done; and that, conversely, damages would be an adequate remedy for USSL if it transpires that the injunction should not have been granted.[55]For the reasons set out in Section G above, I have no doubt that the balance of convenience favours granting the injunction. For all those reasons, therefore, I vary the injunction originally granted so that the QA documents can be provided to AMEC as soon as possible.[56]I am very grateful to counsel for their clear written and oral submissions in this case. I will deal with any all subsidiary matters, such as costs, following the handing down of this Judgment.