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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> GSMA Ltd v Europa Technologies Ltd  EWHC 3451 (TCC) (12 November 2013)
Cite as:  EWHC 3451 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| GSMA LIMITED
|- and -
|EUROPA TECHNOLOGIES LIMITED
Thomas St Quintin (instructed by Gardner Leader LLP) for the Defendant
Hearing dates: 21-23 October 2013
Crown Copyright ©
Mr Justice Akenhead:
Background and History
"We put a charge on the account in January to cover the year. I'm happy to pro rata this to the termination date, but it's up to you whether you want any syncs [synchronisations] or map updates applied for the next 3 months."
Mr Costello did not respond one way or the other to this e-mail.
"Unfortunately our contract with GSMA comes to an end this month. I am writing to offer you a final opportunity to publish a new/updated map for your network(s) during our final update cycle. If you do not have a map published, or have an old map shown, now is a great time to make a submission…"
(a) Overcharging (£168,375), primarily relating to processing the same Overlay Data as had been previously provided and processed. Much of this claim involves processing done by Europa when all that it did was to update the Base Maps.
(b) Failure to account to GSMA for its share of payments for Optional Features for which the Contract requires the proceeds to be shared 50:50. This falls into three categories: (i) wrongful application of fixed exchange rates for payments receivable by Europa in US dollars or in Euros to its advantage (£52,001), (ii) the retention of sums received from Members which are said to be Optional Features (£66,385) and (iii) invoices not accounted for (£6,207).
(c) Europa's alleged continuing use of GSMA's data, particularly the Overlay Data provided by Members.
By the standards of the TCC, this is a modest claim, totalling just under £300,000. By way of belated concessions, this amount comes down substantially.
(i) Whether Europa overcharged GSMA in the course of the Agreement in respect of fees charged by Europa for updating Coverage Maps. A key part of this issue is whether or not, on a correct construction of the Contract, Europa was entitled to charge, once per year, for processing of previously processed Overlay Data to produce updated Coverage Maps when there had been changes to the information on the relevant part of the Base Map.
(ii) If the answer to (i) is in the negative, whether it can rely on defences of estoppel, waiver, failure to mitigate, limitation, and to what extent the Annexes to the Re-Amended Particulars of Claim are accurate.
(iii) Whether Europa failed to account to GSMA in full for 50% of the Network Insight licensing income to which GSMA was entitled pursuant to paragraphs 5.7 and 5.8 of Schedule 7A to the Agreement. Sub-issues are whether Europa was justified in its treatment of exchange rates, whether Aggregated Coverage Maps and various Ancillary Services fall within the Agreement and whether in any material respect GSMA is estopped from seeking recovery for overpayments in any of these respects.
(iv) Whether Europa misused the GSMA's Overlay Data after the termination of the Agreement for commercial gain, and whether Europa is to account to GSMA for the profits it has made by so doing.
(v) Whether GSMA is liable to pay Europa's final invoice dated 27 August 2010 either under the Contract or by way of quantum meruit.
(vi) Whether GSMA is to account to Europa for its share of income relating to the use of the Network Insight software by Members in respect of the remainder of 2010 after termination of the Agreement and whether Europa is entitled to any further sums from GSMA as a result of Europa's own audit of its own financial statements.
(vii) Whether GSMA used Europa's Network Insight software in an unlicensed manner following the termination of the Agreement and if so, what should be payable by GSMA in consequence thereof.
"Europa owns the copyright in a web-based software product called "Network Insight" which allows mobile telephone coverage to be displayed on a map.
GSMA has a website (www.gsmworld.com) which features an area containing Coverage Maps for various mobile network operators, detailing the geographic coverage of their respective networks.
GSMA requires a license for Network Insight and various services in connection with the roaming section of the GSMWorld website and Europa has agreed to provide such services."
The Assets shall have the meaning assigned to it Clause 26.
Base Map the 1:1,000,000 scale digital map of the world known as Global Insight Plus.
Coverage Maps a graphical map image consisting of both a Base Map and a Coverage Overlay.
Coverage Overlay a graphical map image of mobile network coverage generated from Overlay Data.
Coverage Services means the services as described in Schedule 1C.
Europa Services means the services to be performed by Europa as described in Schedule 1A.
"Initial Term" a term commencing from the Effective Date [2 July 2004] and expiring sixty (60) months thereafter [i.e. 2 July 2009]
Overlay Data the data provided by GSMA Members in regards to their mobile network coverage as defined in Schedule 1D.
Overlay System software and automatic/manual procedures for the conversion of Overlay Data into user-friendly web compatible formatted Coverage Maps
Renewal Term a term commencing from the date of expiry of the Initial Term and until this Agreement is terminated
Services means the Coverage Services and the Europa Services
Service Standard means in relation to the performance of any of the Services, carrying out those Services:
(a) In a good, safe and professional manner free from dishonesty and corruption;(b) Without material deviation from the normal practice of a reasonable and prudent information services company and with adherence to relevant standards;(c) In accordance with all relevant provisions of this Agreement, and in so far as is practicable, any rules, codes, policies, procedures and standards notified to the Parties, as revised from time to time during the Term in accordance with this Agreement;(d) In a manner which is not detrimental to the public image and reputation of the other party; and(e) In a manner not less professional than the manner in which each party would perform similar services for its own customers.
2 In interpreting this Agreement headings are for ease of reference only and shall not affect the construction of the Agreement…
3.1 Commencing from [2 July 2004] and for the term of this Agreement, Europa will provide the Europa Services.
3.2…Europa will provide the Coverage Services.
3.3 All Services will be provided to the Service Standard and in compliance with the Service Levels specified in Schedule 4.
8.1 Europa shall provide the Services to the Service Standard, in accordance with the Service Levels and otherwise in accordance with this Agreement…
8.3 The procedures [of Schedule 4] have been determined on the basis of the importance of providing and maintaining key elements of the Services to the specified level and in meeting the GSMA's objectives for the Services.
9.5 Any of the work undertaken by Europa…which has not been authorised in advance by a Change and which has not otherwise agreed in accordance with the Change Control Provisions shall (unless otherwise subsequently ratified in writing by GSMA) be undertaken entirely at the direct expense and liability of Europa.
11.1 Europa agrees that it will not…become involved in any business or venture that competes with the Coverage Services during the term of this Agreement without the written consent of the GSMA (which shall not be unreasonably withheld). This restriction, however, will not limit Europa's ability to service their clients in the normal course of provision of its business services existing as of the Effective Date. For the avoidance of doubt, this restriction applies to Europa's involvement in any business or venture that displays web or paper based aggregated network coverage information from multiple GSMA Members.
16.6 The Parties agree that the Intellectual Property Rights in respect of the Coverage Maps will be jointly owned and governed by the following:
16.6.1 Europa hereby provides the GSMA a royalty-free, worldwide, perpetual, irrevocable, sub-licenceable licence to all Coverage Maps which are more than twelve (12) months old from date of publication on GSMWorld;
16.6.2 Europa hereby provides the GSMA a royalty-free, worldwide, perpetual, irrevocable, sub-licenceable, licence to all Coverage Maps which are less than twelve (12) months old from date of publication on GSMWorld for as long as Europa continues to provide the Services; and
16.6.3 Europa shall not use the Coverage Maps for any purpose other than those provided for under this Agreement unless otherwise agreed by the GSMA in writing.
23.2.4 Europa will not (and shall procure that its Affiliates and Associated Undertakings will not) become involved in any business or venture that competes with the Coverage Services for a period of one (1) year following the Date of Termination without the written consent of the GSMA (which shall not be unreasonably withheld). This restriction, however, will not limit Europa's ability to service their clients in the normal course of provision of its business services existing as of the Effective Date. For the avoidance of doubt, this restriction applies to Europa's involvement in any business or venture that displays web or paper based aggregated network coverage information from multiple GSMA Members.
26.1 If this Agreement terminates (in whole or in part) for whatever reason the GSMA shall take full possession of the Assets not already in the GSMA's possession with effect from the Date of Termination.
26.3 On termination of this Agreement, upon the GSMA taking full possession of the Assets all Intellectual Property Rights in the Assets not already assigned to the GSMA (including future Intellectual Property Rights) shall hereby be automatically…assigned by Europa to the GSMA".
31.1 No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative
32.1 This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made in writing signed by a duly authorised representative of each of the parties…"
(a) Schedule 1A
"This Schedule describes the activities that Europa will perform for and on behalf of GSMA and its members in order to deliver Release 1 Coverage Services (services that apply to the Base Features and the Optional Features as defined in Schedule 1C…
2.1 Product Management - including, but not limited to, developing the system's design and building the required functionality to enable the delivery of the Base Features and Optional Features, and maintenance of user documentation to support the Coverage Services.
2.2 Providing ongoing service delivery and maintenance of the Coverage Services including, but not limited to:
2.2.1 the delivery of the Base features and the Optional Features to the agreed service design…
2.4 Customer Management - to include, but not limited to:
2.4.1 The collection and verification of Overlay Data from GSMA …
2.7 The storage and archiving of all Overlay Data, Coverage Overlays and Coverage Maps and to deliver an electronic copy of all such materials to the GSMA within four weeks of each primary Coverage Services update as described in Clause 2.5 of Schedule 1C.
3.1 Development of the Overlay System (this conversion will occur from a number of Overlay Data formats).
3.2 Converting the raw Overlay Data into user-friendly web-compatible Coverage Maps as described in Schedule 1C on an ongoing basis.
3.3. Maintaining updates to Coverage Maps and associated text based data (i.e. roaming partners, network codes, etc) on the agreed upon Update Schedule outlined in Schedule 1C.
(b) Schedule 1C
1.3 The Coverage Services offered to GSMA fall into two levels of presentation/functionality:
1.3.1 Base Features; and
1.3.2 Optional Features.
2.1 The Base Features will provide a single Coverage Overlay depicting strong and variable coverage for one technology (e.g. 2G, EDGE, 3G)...
2.3 In addition to Coverage Maps for individual GSMA members, Country Maps for all countries for which they GSM Member has admitted Overlay will also be provided.
2.4 Textual information such as network information and roaming partners for each GSMA Member will be provided with one update and.
2.5 Coverage Maps will be updated according to the following Update Schedule each year – the 15th day of March, June, September and December respectively, although as part of the Base Features, each GSMA Member will be provided with one update per annum.
3.1 Each map will have the following functionality:
…3.1.7 Search by place name,
3.1.8 Quick-finder with drop-down list of major cities and towns with an ability to change map display to the chosen location.
4.1 Subject to Clause 4.2 of this Schedule 1C the GSMA will have the right to set and change the pricing for all aspects of the Base Features described in Clause 3.1 and any time.
4.2 The GSMA will consult with Europa…
6.1 The following optional functionality will be offered…
6.1.5 Display of a GSMA member's own Coverage Maps in HTML/format on their own website (hosted on the GSMA server); and
6.1.6 Display of roaming partner Coverage Maps in HTML or Flash format on their own website (hosted on the GSMA server).
7.1 Subject to clause 7.2 of this Schedule 1C, the GSMA will have the right to set and change the pricing for all aspects of the Optional Features described in Clause [6.1] of this Schedule 1C at any time.
7.2 The GSMA will consult with Europa…
7.4 If GSMA desire further customisation, Europa can provide this service, and the GSMA will endorse it. This service is outside the scope of this Agreement.
(c) Schedule 1D identified four specified types of computerised formats for Overlay Data submissions by which the Members would submit that data. By later agreement, this was extended to a fifth type.
(d) Schedule 4
"The GSMA will require measurable Service Levels to ensure that the Coverage Services the quality is maintained to an acceptable standard
1.1 Europa warrants that all Coverage Maps, Overlay Maps and Overlay Data will meet the following levels of accuracy: 1.1.1: Standard coverage maps will be based on a 1:1,000,000 scale digital map of the world featuring general accepted and up-to-date political borders."
(e) Schedule 7A (entitled "Financial Arrangements")
"3.1 Europa will be paid for the design, build, delivery and maintenance of the Coverage Services.
3.2 The payments made to Europa will vary according to:
3.2.1 the various features and functionality provisioned as described in this Schedule 7A.
3.2.2 the various formats in which Overlay Data is provided as described in this Schedule 7A
3.3 The payments to Europa will consist of moneys both from the GSMA and from Customers as described in this Schedule 7A.
4. Base Features
4.1 Initial Overlay - subject to Clause 7, for the first submission of Overlay Data that is successfully processed for each GSMA Member (i.e. this is the first submission from each GSM a member which will be used for the creation of the Overlay System), the following payments will be made to Europa:
Initial Submission of Overlay Data
|Format of Overlay Data submission||GSMA Subsidy||GSMA Member contribution||Total fee to Europa|
|C- - Image/Scan||£320||£190||£510|
|D- Place List||£320||£445||£765|
4.2 Subsequent Overlay - Subject to Clause 7, for each subsequent processing of Overlay Data for a GSMA Member that falls under the description of Base Features as described in Schedule 1C (for the avoidance of doubt, this is up to a maximum of one subsequent processing of Overlay Data per GSMA Member), the following payments will be made to Europa:
Subsequent Submission of Overlay Data
|Format of Overlay Data submission||GSMA Subsidy||GSMA Member contribution||Total fee to Europa|
|C- - Image/Scan||£145||£85||£230|
|D- Place List||£145||£205||£350|
4.4 Country Maps – The GSMA will pay Europa a one time payment of…£4,950 for the provision and ongoing maintenance of aggregated country maps depicting strong/variable GSM coverage for all countries for which a GSMA Member has submitted Overlay Data as described in Clause 2.5 of Schedule 1C.
5.1 Subject to Clause 5.9 and Clause 7, Clauses 5.3 to 5.8 inclusive outline the payments that will be made to Europa for the successful provisioning of the Optional Features.
5.2 All payments made to Europa as described in Clauses 5.3 to 5.8 are GSMA Member Contributions
|Optional Feature||Fee paid to Europa|
|…5.7 Own Coverage Map display on customer's own site||The fee to Europa will be 50% of the fee charged to the GSMA Member. The remaining 50% is due to the GSMA.|
|5.8 Roaming partners Coverage Map display on customer's own site||The fee to Europa will be 50% of the fee charged to the GSMA Member. The remaining 50% is due to the GSMA.|
(f) Schedule 7B (entitled Payment Schedule)
3.1 On signing this Agreement the GSMA will pay Europa…£85,000 towards the development of the Base Features as described in Schedule 1C…
4.1 Pursuant to Section 1 of this Schedule 7B, Europa will credit the GSMA any monies due to it from the provision of the Optional features as described in…Schedule 7A on a quarterly basis
(g) Schedule 10 made provision for Termination Fees in certain circumstances. Paragraph 1.5 provided that there would be no Termination fee payable to Europa if GSMA terminated for convenience.
Discussion on the various issues
"Principles of construction
21 In construing the Appointment, the draft warranty and the Policy, I bear in mind the general principle of construction of agreements as set out in Investors Compensation Scheme Limited v West Bromwich Building Society  1 WLR 896 at 912 and Chartbrook Limited v Persimmon Homes Limited  1 AC 1101 .
22 As Lord Steyn said in Sirius International Insurance Company v FAI Insurance Company  1 WLR 3251 at 3257 to 3258:
"the enquiry is objective: the question is what a reasonable person, circumstanced as the actual parties were would have understood the parties to have meant by the use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene."
23 I was also referred to Rainy Sky SA v Kookmin Bank  UKSC 50 and to the passage in the judgment of Lord Clarke, with whom the other members of the Supreme Court agreed, at  when he said:
"The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other."
24 I was also referred to the judgment of Lord Mance in the Trigger Litigation  UKSC 14 at  with which, on this issue, the other members of the Supreme Court agreed. He said this:
"19. To resolve these questions it is necessary to avoid over-concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more broadly. As Lord Mustill observed in Charter Reinsurance Co Ltd v Fagan  AC 313, 384, all such words "must be set in the landscape of the instrument as a whole" and, at p 381, any "instinctive response" to their meaning "must be verified by studying the other terms of the contract, placed in the context of the factual and commercial background of the transaction". The present case has given rise to considerable argument about what constitutes and is admissible as part of the commercial background to the insurances, which may shape their meaning. But in my opinion, considerable insight into the scope, purpose and proper interpretation of each of these insurances is to be gained from a study of its language, read in its entirety. So, for the moment, I concentrate on the assistance to be gained in that connection."
25 Finally I was referred to a passage in MacGillivray on Insurance Law (11th Edition) at paragraph 11-007 where the authors state:
It is an accepted canon of construction that a commercial document, such as an insurance policy, should be construed in accordance with sound commercial principles and good business sense, so that its provisions receive a fair and sensible application. Several consequences flow from this principle. The literal meaning of words must not be permitted to prevail where it would produce an unrealistic and generally unanticipated result, as, for example, where it would unwarrantably reduce the cover which it was the purpose of the policy to afford."
"23. Where the parties have used unambiguous language, the court must apply it…
40… [Where] the language…is capable of two meanings it is appropriate for the court to have regard to considerations of commercial common sense in resolving the question what a reasonable person would have understood the parties to have meant.
43. As Hoffmann LJ put it, after quoting from Lord Diplock's speech in The Antaios  AC 191, if the language is capable of more than one construction, it is not necessary to conclude that a particular construction would produce an absurd or irrational result before having regard to the commercial purpose of the agreement. See, for example, per Hoffmann LJ quoted at para 23 above, where he said:
"But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement."
See also the quotation from Longmore LJ at para 29 above, where he said that, if a clause is capable of two meanings, it is quite possible that neither meaning will flout common sense, but that, in such a case, it is much more appropriate to adopt the more, rather than the less, commercial construction."
GSMA's Overcharging Claim
(a) It is important to appreciate that at numerous points in the Contract and Schedules a differentiation is made between the Overlay Data and the Base Maps. This is clear from the Definitions at Clause 1 where the Coverage Maps are a graphical image representing Base Maps and Coverage Overlays. The Coverage Overlay is a graphical image generated from the Overlay Data (it is like the perspex overlay referred to earlier). The Overlay Data is obviously provided by the Members. Separate intellectual property rights are agreed to exist in relation to Overlay Data and Coverage Overlays, (for instance) which must be returned to GSMA on termination. Schedule 1A requires Europa to store and archive all Overlay Data and Coverage Overlays.
(b) Schedule 7A makes it clear that it governs payments that are due. Although Paragraph 3.1 of this Schedule does say that Europa will be paid for the design, build, delivery and maintenance of the Coverage Services, it does not say that it is entitled to be paid sums in addition to those set out in the Schedule. It is clear that this Schedule was intended to cover all financial entitlements save for Changes (with which this case is not concerned).
(c) In accordance with normal principles, a party would not be entitled to be paid for services either which it was not contracted to provide or if it was contracted to provide them and there was no specific financial allowance expressly written into the contract. The fees or sums contractually payable would cover for the provision of all contractual services.
(d) There is, rightly, no dispute between the parties that the Initial Overlay payment referred to in Paragraph 4.1 of Schedule 7A was only triggered as, when and if a GSMA Member submitted for the first time Overlay Data, there being no obligation as such on the Member to make such a submission.
(e) I have set out the terms of Paragraph 4.2 of Schedule 7A above. The primary argument advanced by Europa's Counsel is that one must ignore the "headings" because Clause 2 of the Contract lays down that "headings for ease of reference only and shall not affect the construction" of the Contract. He argues that as well as the words in bold at the beginning ("4. Base Features") all the words in bold in Paragraph 4.2 are "headings" and must therefore be ignored.
(f) I would in any event have absolutely no doubt that, if one has regard to the words in bold in Paragraph 4.2, it is clear that the parties intended that the payments tabled in Paragraph 4.2 only fell due for payment upon the submission of Overlay Data by Members. That is because the paragraph is prefaced with the words "Subsequent Overlay", the body of the paragraph refers to "subsequent processing of Overlay Data for a GSMA Member", the table is entitled "Subsequent Submission of Overlay Data" and the body of the table relates fees payable to Europa by reference to four different types of format for the Overlay Data submissions. It is absolutely obvious on this wording that Europa only gets paid by reference to and in connection with submissions of Overlay Data from Members.
(g) In my view, the word "headings" in contracts such as this only covers the description of the Paragraph or Clause, invariably at the heading or top of the clause or paragraph. When one looks at the Contract terms, each Clause has a heading which supposedly but very broadly describes its contents (Clause 1 "Definitions", Clause 2 "Interpretation" and so on). That approach is repeated in the Schedules. The heading for Paragraph 4 is "Base Features" which, non-controversially as it happens, accurately describes what the "Financial Arrangements" (the heading for the whole Schedule) are to be for the Base Features services. They are "headings". What are not "headings" are the words at the beginning of, for instance, Paragraph 4.1 and 4.2 which are intended to explain to the reader in respect of what the paragraphs provide by way of payment. Even clearer is the description at the beginning of the table within Paragraph 4.2 which is clearly explaining that the fees payable are to be related to "Subsequent Submissions of Overlay Data". Even if the words "Subsequent Overlay" can be considered a" heading", it becomes verbally untenable to suggest that these words which follow "the following payments will be made to Europa" (themselves followed by a colon) can be considered to be a "heading".
(h) Even if one was to ignore all the supposed "headings" (said to be such by Europa), the wording is still sufficiently clear. The wording talks about "each subsequent processing of Overlay Data", highlighting the requirement (for payment purposes) for Overlay Data to be processed. It does not talk about the Coverage Maps being processed. Furthermore the payment table (upon which Europa has to rely) relates fees payable to it to a particular format of Overlay Data submission. If Members have not submitted Overlay Data in one of the four (ultimately changed to five) agreed formats, there is no entitlement to payment. There is not said to be any entitlement to payment if Overlay Data in itself does not have to be processed or if the only requirement for processing of the Coverage Maps arises because of some perceived need to change the geographical features on the Base Maps (which has nothing to do with Members submitting anything). Added to this, Paragraph 4.2 talks about processing "for a GSMA Member"; if the only perceived need for further processing is alterations to the Base Map, it is difficult to see that this is or necessarily would be "for" the Member, who may have little or no interest in any changes to the Base Map save possibly those which might in some way directly affect its business.
(j) There is nothing on analysis in the Contract which requires extensive changes to the Base Map. Schedule 4 which deals with the provision of measurable Service Levels only requires the Base Maps to be based on a 1:1,000,000 scale "featuring general accepted and up-to-date political borders"; thus the concentration is on the political borders and not for a cornucopia of other geographical data. Such borders are unlikely to change regularly or often. Although Schedule 1A calls for the provision of "ongoing… maintenance of the Coverage Services" and the provision of "improvements, enhancements…and other changes" to Network Insight, that relates to the underlying software and not as such to the Base Maps. Paragraph 3.3 refers to the maintenance of "updates to Coverage Maps on the agreed upon Update Schedule" referred to in Schedule 1C but Paragraph 2.5 of that talks about Coverage Maps being updated in mid March, June, September and December "although as part of the Base Features, each GSMA Member will be provided with one update per annum"; this however obviously cross refers to the times over a year when the updating will take place, tying in with Schedule 7A which permits one subsequent processing of Overlay Data for each Member in any one year.
(k) Even if the Contract could be construed as requiring Europa as a matter of absolute obligation to update the Base Maps as and when geographical changes have occurred in any given country, that does not mean that payment specifically for that service is to be made in some way separately from the occasions listed in Paragraph 4.2 of Schedule 7A.
(l) This is, commercially at least, not inconsistent with the parties' mutual expectations of the business that was likely to be generated which were that there would be 600 Initial Data provisions and some 1800 updated Data submissions from Members. That expectation, if fulfilled, would enable most of the interested Members to have the benefit of any alterations to Base Maps as part and parcel of the process of the processing of their Data submissions.
(a) There was nothing on the face of the very few invoices which suggests that Europa was claiming fees for such updates.
(b) Similarly, there was nothing on the face of the running accounts which explained that this was being claimed for. There are simply bland references to Type A or B (or equivalent) updates.
(c) There was nothing in the correspondence, e-mails, or other documentation passing between the parties or in the evidence which suggests that GSMA personnel were actually told by Europa that it was either simply updating the Coverage Maps only to reflect changes to the Base Maps or seeking to charge GSMA for this.
(d) I find on the facts that GSMA never knew before termination of the Contract that it was being charged for this updating. There are 1000s of entries on the running account, which was in any event only haphazardly provided in hard copy to GSMA by Europa. Europa never told GSMA about this.
(e) Neither estoppel by representation nor waiver in a case such as this can arise unless the representor or person waiving actually knows what it is representing or waiving (see e.g Matthews v Smallwood  1 Ch 777, 786). It is also wrong in law in case such as this to say that routine payment in itself can amount to a representation or waiver.
(a) The parties are agreed that £12,800 of this claim is barred by limitation.
(b) In respect of that part of this claim which sought to suggest that claims for "Initial Submissions" were not payable, GSMA accepts that £8,175 does represent genuine entitlements for Initial Submissions of Overlay Data which fell due for payment under Paragraph 4.1 of Schedule 7A to the Contract. Europa suggests that that figure should be £10,475 for two different reasons, first that the running account wrongly described the work done as "Initial" when an "Initial" submission had already been processed and secondly, where the account wrongly inferred that the work was "subsequent" and it was in fact the first processing and should have been billed as "Initial". My (summarily expressed) judgment on all disputed items in the submitted schedule is:
(i) 6/7/10 AT&T Mobility (USA) said by GSMA to be simply a Base Map update: this Member was previously paid for on 5/3/09 and GSMA has not proved an overcharge as this has not been paid and there is no overpayment. I am satisfied that this was not an "Initial" processing.(ii) 28/6/10 MTN (za) said now to be an Initial Processing; however, charges already sought and paid on 1/1/07,13/1/08, 28/2/08,3/6/10 and 8/6/10. The sum claimed is not due but as it has not been paid GSMA has no claim for repayment. It has not proved an overcharge. I am satisfied that this was not an "Initial" processing.(iii) 18/6/10 MTN (Nigeria) said to be Initial processing by Europa and Base Map update by GSMA. There is no previous invoicing for this Member. GSMA has not proved an overcharge. I am satisfied that this was an "Initial" processing.(iv) 17/6/10 Empresa (Nicaragua) said to be Initial processing by Europa and Base Map update by GSMA. No previous charge. GSMA has not proved the overcharge. I am satisfied that this was an "Initial" processing.(v) 16/6/10 Vodafone NZ said to be Initial processing by Europa and Base Map update by GSMA. Previous charges however (6/8/08, 21/12/06 (twice), 21/11/07 and 27/12/05). GSMA has not proved an overcharge as this has not been paid there is no overpayment. I am satisfied that this was not an "Initial" processing.(vi) 14/6/10 Mascom (Botswana) said by Europa to be Initial processing. No previous processing. GSMA has not proved an overcharge. I am satisfied that this was an "Initial" processing.(vii) 8/6/10 Gibtelecom (Gibraltar) said to be "removed from previous audited statement". It was charged however and is not due to Europa but has not been paid and there is no overcharge.(viii) 7/6/10 Telecom Vanuatu said to be Initial Processing of Overlay Data for the first time. There is no overcharge claim because this has not been paid. It is said to be a Base Map change but because there has been no previous invoicing in relation to this Member it can not have been a Base Map change. I am satisfied that this was an "Initial" processing.(ix) 4/6/10 Tele Greenland said to be Initial Processing of Overlay Data for the first time. There is no overcharge claim because this has not been paid. It is said to be a Base Map change but because there has been no previous invoicing in relation to this Member it can not have been a Base Map change. I am satisfied that this was an "Initial" processing.(x) 11/5/10 Libyana (Libya) said to be "removed from previous audited statement". It was charged however and is not due to Europa but has not been paid and there is no overcharge.(xi) 19/11/08 Partner (Israel) said by Europa to be "Initial" processing but Base map change by GSMA. It is not "Initial" because there were previous processings (4/2/08, 23/4/06 (twice) and 21/3/05). Overcharge established.(xii) 26/7/07 Digicel Jamaica said to involve an overcharge because, although claimed as an Initial processing, it was a subsequent processing. I accept this and there has been an overcharge of £225. Although this is noted as not agreed by Europa, its reasoning in the submitted schedule suggests otherwise.(xiii) 2/7/07 Iowa Wireless: although disagreed, Europa's comments in the schedule suggest that this item or part of it was removed from its audited statement due to a previous administrative error. I accept therefore that it can be treated as overcharging.(xiv) 1/1/07 MTN Uganda: GSMA says that the wrong format type is claimed for, which reduces the entitlement from £400 to £200 whilst Europa, although nominally challenging the item suggests that the proper amount is £200 for a different reason. I accept that on one basis or another there has been an overcharge of £200 therefore.(xv) 11/4/06 RS Telecommunications (Banja Luka): GSMA says that the wrong format type is claimed for which reduces the entitlement from £400 to £200 whilst Europa argues that was there has been an overcharge this was because it was not an Initial but a subsequent processing. I accept Europa's contention therefore accept that there has been an overcharge only of £100.
(c) Taking into account those items which I have found work did involve Initial Processing and was not simply a Base Map update, an additional sum of £1,325 falls to be added to the deduction of £8,175 accepted by GSMA, leaving a total of £9,500 to be deducted from the overcharge claim.
(d) The item relates to what the parties agree are largely "undisputed charges for Overlay Data-processing where submission was made in year 1 but is processed in the following year (where there was no other earlier Overlay Data-processing in year 1)". GSMA's reduction is £4,625 whilst Europa's is £5,775. I accept the broad thrust of Mr Vick's evidence that this arose particularly in the last few months of the Contract because by agreement Europa's work has been largely suspended and there was a backlog of processing delivered in the previous year. I therefore accept Europa's figure.
(e) The fourth reduction relates to largely undisputed charges for Updated Submission processing erroneously entered as Initial Submissions with GSMA's reduction being £875 and Europa's being £2,250. I accept GSMA's figure with the addition of £100 in respect of the 11/4/06 invoicing for RS Telecommunications (Banja Luka). A £975 reduction will be made.
(f) The fifth item relates to Overlay Data of submission processing previously categorised as being a Coverage Map update where only the Base Map had changed. GSMA says the figure should be £350 whilst Europa says it should be £275. Accordingly, the reduction should be exactly what GSMA says it should be, namely £350.
(g) The final item relates to the overlap between this claim and Europa's counterclaim for its invoice where only the Base Map had changed. GSMA says that should be £33,706.47 whilst Europa puts forward a figure of £34,006.47. I accept the latter figure.
Overcharging claim: £168,375
Sums barred by limitation £12,800
Initial Submissions £9,500
Following year processing £5,775
Updated submissions (not Initial) £975
Update of Coverage Map (only Base Map) £350
Overlap with Europa's invoice £34,006.47
GSMA's Claim Regarding Exchange Rates
Ancillary Charges Credits
Miscellaneous Invoices not Accounted for
(a) The Vodafone Portugal is admitted; the Sheba and Celtel invoices are no longer pursued.
(b) The other two Vodafone UK invoices cancel each other out as the second credits back to Vodafone the amount claimed in the earlier invoice; there is thus no evidence that Vodafone was charged or chargeable for the amount in question. The claim on the two invoices has not been proved.
(c) That leaves the T-Mobile invoice which does show a charge of $10,995; there is no credit note for this invoice and no suggestion that it was not charged and received by Europa. The Amended Defence accepts that revenue share applies to the sum invoiced because it actually features as such in some account prepared by Europa in March 2013. The amount due to GSMA in Sterling is £2,780.
|KDDI Corporation Purchase Order No. KDDI05102 dated 02/12/2005||This relates to services which Mr Vick says did not arise under the Contract, because KDDI was not then a Member; he said this under cross-examination as to why he was not allowing 50% of it to GSMA. If it did not arise under the Contract, Europa has no entitlement to any payment or repayment. Additionally, as any claim for this would have arisen more than 6 years before the Claim was issued, it would be barred by limitation. Claim disallowed.|
|Hutchison 3G Austria Purchase Order No. 381000427 dated 30/01/2008||This claim was raised by reference to an order confirmation from Europa ("Auftragsbestätigung") and an order ("Bestellung") from Hutchison 3G. Mr Vick says that this was cancelled. If so, there would be no claim against GSMA. If anything, if this order had gone ahead, Europa would have had to hand over 50% of it to GSMA. Mr Vick was unconvincing about whether this order was cancelled. One of these document suggests that an invoice was raised. Claim disallowed.|
|Vodafone Ltd Invoice No. 06-068||No issue that £590 should be disallowed|
|Radiomovil Dipsa Invoice No. 08-035||Mr Vick said that this relates to a set up fee which was not an Optional Feature but some special facility or feature on the application. This has not been proved by Europa. because, if that is right, it has no claim. He was also unconvincing in this regard; the invoice meant presumably what was intended and a credit was given for it presumably because Europa considered at the time that it was an Optional Feature to which the 50% credit applied. Claim disallowed.|
|T-Mobile Netherlands (with Orange) Invoice No. 08-077||No issue that £2,101.25 should be disallowed|
|AT&T Mobility Invoice No. 08-054||Mr Vick said that this relates to a set up fee which was not an Optional Feature but some special facility or feature on the application. This has not been proved by Europa because, if that is right, it has no claim. He was also unconvincing in this regard. The invoice meant presumably what was intended and a credit was given for it presumably because Europa considered at the time that it was an Optional Feature to which the 50% credit applied Claim disallowed.|
|Vodafone D2, Germany Invoice No. 09-027||Mr Vick's evidence does not begin to prove this claim. Claim disallowed|