The Codemasters Software Company Ltd v Automobile Club De L'ouest [2009] EWHC 3194 (Ch) (25 November 2009)

The Codemasters Software Company Ltd v Automobile Club De L'ouest [2009] EWHC 3194 (Ch) (25 November 2009)

ACO may amend its Defence and Counterclaim to raise construction points regarding the scope of the indemnity, but not to raise mitigation as a defence. Expert evidence is admissible only to the limited extent that it is relevant to the reasonableness of the licence fees and loss of profit, but not to the robustness of negotiations or the cost of amending promotional materials. The law is settled that mitigation does not apply to contractual indemnities, but the construction of the Agreement may arguably allow consideration of reasonableness in a limited way.

Citation
[2009] EWHC 3194 (Ch)
Parties
Claimant/part 20 Defendant: THE CODEMASTERS SOFTWARE COMPANY LIMITED; Defendant/part 20 Claimant: AUTOMOBILE CLUB DE L'OUEST
Jurisdiction
England and Wales
Judgment Date
25 November 2009
Procedural Posture
Intellectual Property / Interlocutory Application Regarding Amendments to Pleadings and Admissibility of Expert Evidence Prior to Trial
Outcome
Application granted in part
Legal Topics
Indemnity, Mitigation of Loss, Reasonableness of Settlement, Expert Evidence, Damages, Warranties
Contract Law Intellectual Property Indemnity Mitigation of Loss Reasonableness of Settlement Expert Evidence Damages Warranties

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Parties

THE CODEMASTERS SOFTWARE COMPANY LIMITED

Claimant/part 20 Defendant

AUTOMOBILE CLUB DE L'OUEST

Defendant/part 20 Claimant

Procedural Posture

Intellectual Property / Interlocutory Application Regarding Amendments to Pleadings and Admissibility of Expert Evidence Prior to Trial

Legal Issues

  1. 1 Whether ACO can amend its Defence and Counterclaim to raise issues of mitigation, causation, remoteness, and construction under the Licence Agreement
  2. 2 Whether expert evidence on licensing and loss of profit is admissible and relevant to the issues at trial
  3. 3 Whether mitigation principles apply to contractual indemnities under the Agreement

Ratio Decidendi

ACO may amend its Defence and Counterclaim to raise construction points regarding the scope of the indemnity, but not to raise mitigation as a defence. Expert evidence is admissible only to the limited extent that it is relevant to the reasonableness of the licence fees and loss of profit, but not to the robustness of negotiations or the cost of amending promotional materials. The law is settled that mitigation does not apply to contractual indemnities, but the construction of the Agreement may arguably allow consideration of reasonableness in a limited way.

Court Disposition

Application granted in part

Orders

  • ACO is permitted to amend its Defence and Counterclaim to raise construction points regarding the indemnity.
  • ACO is permitted to adduce expert evidence only to the limited extent relevant to the reasonableness of licence fees and loss of profit.