“4.1.1 Authorised Use Under each licence, IBM authorises the customer to: a. use the ICA Program’s machine-readable portion on only the Designated Machine. If the Designated Machine is inoperable, the Customer may use another machine temporarily. If the Designated Machine cannot assemble or compile the ICA Program, the Customer may assemble or compile the ICA Program on another machine. If the Customer changes a Designated Machine previously identified to IBM, the Customer agrees to notify IBM of the change and its effective date; b. use the ICA Program to the extent of authorisations the Customer has obtained; c. make and install copies of the ICA Program, to support the level of use authorised, provided the Customer reproduces the copyright notices and any other legends of ownership on each copy or partial copy; and d. use any portion of the ICA Program IBM provides i) in source form, or ii) marks restricted (for example “Restricted materials of IBM”) only to: (1) resolve problems related to the use of the ICA Program, and (2) modify the ICA Program so that it will work together with other projects. 4.1.2 The Customer’s Additional Obligations For each ICA Program, the Customer agrees to: … b. ensure that anyone who uses it (accessed either locally or remotely) does so only for the Customer’s authorised use and complies with IBM's terms regarding ICA Programs; … 4.1.3 Actions The Customer May Not Take The Customer agrees not to: a. reverse assemble, reverse compile, otherwise translate, or reverse engineer the ICA Program unless expressly permitted by applicable law without the possibility of contractual waiver; or b. sublicence, assign, rent, or lease the ICA Program or transfer it outside the Customer’s Enterprise.”
“1. Subject to the provisions of Articles 5 and 6, the exclusive rights of the rightholder within the meaning of Article 2 shall include the right to do or to authorise: (a) the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole; in so far as loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, such acts shall be subject to authorisation by the rightholder; (b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program; (c) any form of distribution to the public, including the rental, of the original computer program or of copies thereof.”
“1. In the absence of specific contractual provisions, the acts referred to in points (a) and (b) of Article 4(1) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. 2. The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as it is necessary for that use. 3. The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.”
“1. The authorisation of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of points (a) and (b) of Article 4(1) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: (a) those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so; (b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); and (c) those acts are confined to the parts of the original program which are necessary in order to achieve interoperability. 2. The provisions of paragraph 1 shall not permit the information obtained through its application: (a) to be used for goals other than to achieve the interoperability of the independently created computer program; (b) to be given to others, except when necessary for the interoperability of the independently created computer program; or (c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright. 3. In accordance with the provisions of the Berne Convention for the protection of Literary and Artistic Works, the provisions of this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder's legitimate interests or conflicts with a normal exploitation of the computer program.”
“Further or alternatively, the Defendants are estopped from relying on clause 1.11.4 of the ICA because (i) the Defendants repeatedly impliedly represented to IBM UK that Winsopia was complying with the ICA by continuing to use the IBM mainframe software and to make payments to IBM while concealing its wrongdoing, (ii) IBM UK relied on those implied representations by not terminating the ICA and suing the Defendants forthwith, and (iii) it would be inequitable for Winsopia to be permitted to rely on clause 1.11.4 in those circumstances.”
“For the purposes of the Claimant’s claims against the Sixth Defendant: 11A.1 The Claimant does not pursue any claims in respect of which any time limit under theLimitation Act 1980 (subject to the operation ofsection 32 of the Limitation Act 1980 ) would have expired by the date on which the amendments contained in these Re-Re-Re-Amended Particulars are consented to or permitted by the court. 11A.2 The Claimant will not contend that such claims were issued or deemed to have been issued, for the purposes of limitation under theLimitation Act 1980 , prior to the date on which the amendments in these Re-Re-Re- Amended Particulars of Claim were consented to by the parties or were permitted by the court.”
“For the purposes of the Claimant’s claims against the Sixth Defendant, if and insofar as the time limit under clause 1.11.4 of the ICA may apply to any such claims: a. The Claimant does not pursue any claims in respect of which the time limit under clause 1.11.4 would have expired by the date on which the amendments contained in the Re-Re-Re- Amended Particulars are consented to or permitted by the court. b. The Claimant will not contend that such claims were issued (or deemed to have been issued), for the purposes of clause 1.11.4 of the ICA, prior to the date on which the amendments in the Re-Re-Re-Amended Particulars of Claim were consented to by the parties or were permitted by the court.”
“The Defendants bear the burden of proof on limitation and have not adequately set out a case. This request is an attempt to reverse the burden of proof. Without prejudice to that, the Claimant’s case is that it discovered the concealment shortly before starting this claim.”
“The Claimant responds to this Request and the Requests below without thereby waiving its own privilege in any privileged communications … the Claimant did not know of the relationship between the First Defendant and the Second Defendant (and accordingly of the possible involvement of the Second Defendant in the First Defendant’s activities and/or the possibility that the Second Defendant had thereby breached its contract with the Claimant) until25 August 2020 . Therefore, and in any event, the Claimant did not know that it had any potential cause of action against the Defendants or any of them prior to that date.”
“1. Please identify the basis for the Claimant's reliance on the date of25 August 2020 . 2. Without prejudice to the generality of the foregoing, please identify what the Claimant says caused it to learn of the relationship between the First Defendant and the Second Defendant on that date, who at the Claimant learned it and how it was learned.”
“Not entitled. This Request trespasses on communications which are privileged to the Claimant and/or IBM Corporation.”
“9. I am aware that one of the issues in these proceedings is the date on which IBM UK learnt of the link between the Second Defendant, Winsopia Limited (“Winsopia”), and the First Defendant, LzLabs GmbH (“LzLabs”). 10. As to this, to the best of my recollection, I confirm that I was not aware of any link between Winsopia and LzLabs until25 August 2020 . 11. I am also aware that IBM UK’s claims against the Defendants concern the Defendants’ development of the Software Defined Mainframe (“SDM”) product, which IBM UK alleges was developed by using and accessing IBM’s code, and IBM’s mainframe systems, in a way that breached relevant licence agreements. 12. Prior to25 August 2020 , to the best of my recollection, I had no knowledge of any of the Defendants in these proceedings. I was not considering, nor did I have any reason to consider, any claim in respect of the matters raised in these proceedings before that date. 13. Prior to25 August 2020 , I also do not recall having any knowledge of the existence of the SDM, or that any company was developing the SDM, such that I had no reason to think that the development of the SDM somehow constituted a breach of any party’s licence agreements with IBM UK. To the extent that kind of monitoring is carried out, it is done by parts of IBM UK’s business team and, as a matter of course, if the business had any concerns about competitors or issues which gave rise to potential claims, the business would consult the legal team about these concerns. In this regard, and strictly without waiving privilege, no one from IBM UK’s various business teams ever raised any issues with me about the Defendants or the development of the SDM until after I became aware of the link between Winsopia and LzLabs in August 2020. If they had notified anybody else in the IBM UK legal team about potential wrongdoing by Winsopia before that time, I am sure that I would have known about it. 14. In my role as IBM UK’s Litigation Counsel, I was responsible for ensuring that IBM UK’s relevant senior managers, including its Board of Directors, were appraised of potential litigation matters. Given my role, I consider it inconceivable that IBM UK’s senior or Board-level management would have been considering the matters raised in these proceedings without my knowledge.”
“Relevance is a necessary precondition for disclosure but it is not itself a sufficient condition for a finding of waiver. The position is the same even where the legal advice is highly relevant, rather than relevant to a lesser extent, and even where an investigation of the issue may be hampered by the absence of the privileged material.”
“The law of privilege protects communications. It does not, as a doctrine, protect an inquiry as to what a solicitor knows at any particular point of time. The question of what a solicitor knows is not, per se, a no-go area in litigation. By and large privilege will create a formidable obstacle to trying to prove it, because the communications (and resulting documents) will be privileged and the inquiring party will not be able to penetrate that privilege to get proof. However, if the knowledge can be proved another way then I cannot see a reason in principle why the inquiring party should not be able to seek to do that.”
“71. In my judgment following the July 2023 CMC, I decided that, in the light of the deletion of Mr Knight’s documents, the claimant should extract, process and search the .nsf files of Mr Roseblade, Mr Bates, Mr Wilson and Mr Ball. Unfortunately, it has since transpired that the documents of Mr Bates, Mr Wilson and Mr Ball have also been deleted. 72. Mr Pantlin has produced a twelfth witness statement dated15 August 2023 , identifying an alternative individual, Mr Ian Lyon, whose .nsf file would be available for extraction. He explains that Mr Lyon works in the claimant’s sales team and was the sales manager to whom Mr Knight reported. 73. The defendants are not satisfied that Mr Lyon is a satisfactory substitution for Messrs Bates, Wilson and Ball, who were themselves substitutes for Mr Knight. 74. In these circumstances, the court considers that it would be appropriate for the claimant to provide information to the defendants as to Mr Knight’s position and role in the company, his team, his line manager and any other relevant individuals, so that the defendants can consider appropriate individuals as substitute custodians.”
“a. During the relevant period, Mr Knight was part of a group of approximately 6-8 sellers at the Claimant who reported directly to Mr Lyon and either worked directly with end-user customers or through intermediary re-sellers or so-called Business Partners. b. The group of 6-8 sellers in which Mr Knight worked reported directly to Mr Lyon in his capacity as Sales Leader. c. Each of the sellers, including Mr Knight, worked individually on client opportunities and only stood to earn commission on their respective assigned accounts. It was not the practice of sellers to share responsibility for a particular customer because they would only be paid on their named accounts. It follows that, other than Mr Knight, no seller at the Claimant would have had day-to-day responsibility for engaging with, or in relation to, Winsopia. d. Mr Lyon recalls that the commercial arrangements with Winsopia were led by TES as the relevant Business Partner, with support from the Claimant via Mr Knight. To the extent that TES corresponded with Winsopia, such documents would already be in the Defendants’ position. They would not be in the possession of the Claimant unless the Claimant was copied or unless a particular communication was forwarded to it. For the above reasons, other than Mr Lyon, the Claimant has no reason to believe that there are any other individuals at the Claimant who should be added as additional custodians in place of Mr Bates, Mr Ball and/or Mr Wilson. Of course, if Winsopia is aware of any other individuals at the Claimant that it communicated with, it should identify them for our consideration. It has not offered any such names to date.”