England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2013

 


Mr Justice Akenhead:

Introduction

1. These proceedings relate to the provision and maintenance of specialist software and, ultimately primarily to the state of the final accounting between the parties following the termination of the underlying contract after some six years of operation. I should say that I found the three witnesses honest but as will be seen not wholly reliable.

Background and History

2. GSMA Ltd ("GSMA"), the Claimant, is a subsidiary of the GSM Association ("the Association"), a trade body which promotes the use of GSM mobile telephone systems and technologies world-wide: its members, whose interests it represents, are mobile network operators such as, for example, Vodafone and O2 in the UK. "GSM" is an acronym for Global System for Mobile communications.
3. Europa Technologies Ltd ("Europa"), the Defendant, is a small British company which supplies software and related services in the field of digital cartography for a range of industries, some of which software is used to create maps showing the network coverage provided by different mobile network operators. It has licensed its mapping products to some leading on-line mapping providers, such as Google and previously to "streetmap" and "multimap". Mr Warren Vick is the owner of Europa and is highly experienced in software design and operation.
4. In 2002, Mr Vick created and began to market software which could map mobile telephone network coverage around the world. This was originally called Global NetAtlas, but later renamed Network Insight. Essentially, this involved producing recognisable maps of each country in the world upon which could be superimposed in relation to each mobile network operator what coverage each had in each country. This would assist them in identifying what the competition was but would also assist ordinary members of the public travelling to particular countries to find out what coverage existed and where in individual countries as well as by whom the coverage was being provided.
5. The Association and Europa entered into a "Software Licence, Professional Services, Maintenance and Support Agreement" dated 2 July 2004 ("the Contract"). The Contract was later novated twice, once in December 2004 and once in July 2007 such that GSMA replaced the Association as a party to the Contract.
6. A primary object of the Contract was the production and maintenance of what were called "Coverage Maps" which, simply explained, involved the maps ("Base Maps") of each country (prepared and provided by Europa) being overlaid by data ("Overlay Data") provided by the Members of the Association which showed the location and extent of mobile telephone coverage in that country. One can, in non-technological terms, equate this to a map of a country from an atlas being overlaid with a perspex sheet which has on it a series of "blobs" which represent where a particular mobile telephone operator has coverage in that country; these "blobs" were represented in two shades showing strong and variable strength coverage. These maps would then be accessible on the Association's website.
7. The parties had before them during the contract negotiations a spreadsheet which identified the working assumptions which the parties mutually had in relation both to the likely requirements for initial processing and updates from members and to the anticipated or hoped for income. This makes no reference to income from any source other than initial processing submissions and update submissions (except one-off development and software licensing fees). These assumptions were predicated on the basis that the project would be largely self funded out of proceeds receivable from Members.
8. There were a number of meetings before the Contract, mainly between Mr Vick for Europa and Mr Zaidifard and Mr Pedro of GSMA; these involved amongst other things demonstrations and Mr Vick explained that he considered it important that the underlying map data needed to be maintained. For instance, if a place name changed such as Peking to Beijing or a country like Czechoslovakia divided into two countries (Slovakia and the Czech Republic), and, if the maps to be used were not updated, viewers could lose confidence in the maps.
9. The software was relatively well developed by the time that the Contract was entered into and, in accordance with the Contract, Europa provided an "Interim Solution" which provided a web-based mapping solution between the cessation of services provided to GSMA by its former provider until Europa had the permanent solution finalised.
10. £85,000 was paid on account to Europa and from time to time substantial fees came in from Members to Europa (to be shared with or paid to GSMA), but because Europa was providing what the Contract called the "Base Features" and the "Optional Features" services and was entitled to be paid for them by the Members, a detailed running account was maintained by Europa which was not regularly provided to GSMA, although hard copies were provided from time to time by Mr Vick for meetings with representatives of GSMA. In fact, very few invoices were provided by Europa during the life of the Contract after one dated 2 July 2004 for the £85,000 down payment. Bar one for £500 on 5 November 2009 (which is immaterial to the current dispute), only two other invoices were submitted during the Contract, one on 31 January 2006 for £73,150 and another for £39,256 on 30 January 2010, these only arising when the running account went into debit and Mr Vick and Mr Costello of GSMA agreed that further sums should be provided by GSMA. A final invoice post-termination was also provided.
11. There were several occasions during the course of the project which ran until July 2010 when Mr Vick expressed concern about the level of income. For instance on 3 November 2005 he e-mailed Mr Costello reminding him that income up to that point had been predicted to be over £230,000: the assumption had been that 600 Members would call for initial processing but only 327 had done so and Europa had only earned £95,680. He e-mailed Mr Costello again on 15 January 2007 expressing concern that the number of new (or initial) and update submissions from members each year was still "much less than anticipated". It is clear that Europa made extensive requests to GSMA Members to provide new or updated Overlay Data with limited success. Mr Vick wanted to discuss the restructuring of the revenue element of the agreement "to address the poor performance in operator response plus reflect the significant fixed costs that are not covered by the scaling performance nature of the current agreement". No changes were made to the Contract or the financial arrangements.
12. During the course of the Contract, Europa produced for the Members various versions of the document entitled "Coverage Data Submission Guide. An example was the sixth version issued in September 2006. It gave contact details and explained at Paragraph 2.1 that Europa would "process coverage data with a standard frequency four times a year in March, June, September and December" with network operators being asked to provide coverage data submissions in the various formats. Whilst the Guide showed a map of north-western France by way of example to explain that the coverage would be overlaid on such a map; there is nothing in the Guide which suggests that the Coverage Maps would be processed even if no new data was provided by the members. The Guide provide information about costs and charges in three different currencies: sterling, Euros and US dollars; mathematically, as against sterling, the charges were set as if there was an exchange rate of US$2 to £1 and €1.5 to £1. This reflected the fact that there would be customers who would find it easier to pay in Euros and US dollars.
13. Mr Vick and Mr Costello met in August and September 2009 and Mr Vick said that he wanted to change the relationship between the parties and the commercial framework in which Europa was operating because Europa was not making as much money as it had hoped and he considered that the current position was not viable. On 8 September 2009, Mr Vick sent Mr Costello a much better itemised spreadsheet of the running account which showed that Europa was in debit to the tune of some £39,000. The spreadsheet showed the individual debits and credits which had accrued since July 2004; it identified by name the payees and the category of work or payment against each payee and finally in the right-hand column it shows the running balance. In the Category column, there is an indication of the Overlay Data format which each individual payee has provided including where appropriate whether the processing was the initial processing called for in the Contract; where the word "Initial" does not appear but the "Type" of format is identified, the inference at least might have been that further processing of some other sort had been carried out. Many of the credits equate to sums otherwise due to GSMA for its share of Optional Feature payments secured by Europa.
14. On 9 September 2009, Mr Vick and Mr Costello met. They agreed to suspend work on the project, although Europa could process urgent coverage data which was pending at no cost to GSMA; the outstanding balance did not need to be paid in the interim. Mr Costello agreed to this in part because Mr Vick had indicated a resources problem. Various proposals were made to increase Europa's share of the income but this was not agreed to. Mr Costello was not averse to changes being made which might improve Europa's returns and further discussions through e-mail went on in October and November 2009. A further meeting was fixed for 12 November and Mr Vick sent by e-mail various thoughts on ways in which Europa's income might be improved so as to yield at least £100,000 per annum in revenues. The meeting was not unfriendly and Mr Costello indicated that he would see if he could make matters work better from a financial perspective. There were further e-mail exchanges towards the end of November 2009 but Mr Costello's standpoint was to ensure that the Contract had to function on the basis of at or close to zero cost to GSMA. Later in February 2010 GSMA in fact paid the £39,256 sum invoiced as due by Europa in its invoice dated 30 January 2010. At this stage, Mr Vick continued to seek revenue of £100,000 per year and had suggested that GSMA pay a flat rate in that sum but Mr Costello knew that he simply did not have a budget for that.
15. From about this time onwards, it is clear that there began to be a strain in the relationship. Mr Vick indicated in early February 2010 to Mr Costello that he was demoralised. Mr Costello indicated that GSMA would put a substantial effort into increasing the income, for instance by encouraging Members particularly new ones to provide Overlay Data for processing. Mr Vick had been telling some Members that the "coverage map project has been put on hold", for instance on 5 February 2010 in an e-mail to GT Estrada. By early March 2010, GSMA began to consider whether to use an alternative software provider or possibly carry out the function in-house. It is not unfair to say that from latter half of 2009 of the project was in limbo.
16. Following a review internally at GSMA, Mr Costello e-mailed Mr Vick on 19 April 2010 saying that it could not make any budget available to cover a proposed £100,000 per annum cost. Mr Vick's reaction was disappointment but it was not "totally unexpected" and he suggested termination of the Contract. Following some discussion as to the terms of any termination notice, GSMA sent Europa a letter of termination on 29 April 2010 which was acknowledged and concurred with by Europa. This set a termination date of 29 July 2010.
17. On 5 May 2010, Europa was unable to log on to the GSM website, its credentials to log in to the server having been removed. Mr Vick wrote to Mr Costello by e-mail that Europa was therefore unable to perform the updates which it believed it was still contracted to provide going on: "if you are releasing us from this obligation, please let me know." Somewhat enigmatically Mr Costello replied the following day saying: "…there was an assumption that with a lack of funds Europa would not be undertaking this any more". Mr Vick replied an hour later saying:

"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.

18. Mr Costello (and GSMA's Legal Counsel Mr Loch) and Mr Vick met on 7 June 2010. It was an unhappy meeting, which Mr Costello described in evidence as being very heated and Mr Vick as being very confrontational with Mr Vick describing Mr Loch as becoming "quite hostile" and himself as being "disappointed by the tone and outcome of the meeting". I accept Mr Costello's evidence that at the end of this meeting Mr Vick said that he was going to update as many Coverage Maps as he possibly could before the termination date before he "stormed out of GSMA's offices".
19. What is clear, and I find, that Mr Vick consciously and deliberately did embark upon updating as many of the Coverage Maps as he could, although he had started this exercise a few days before the meeting of 7 June 2010 and his primary purpose was to generate as much income as possible to seek to recoup money from what had been, as he had constantly being saying, a financially unsatisfactory project for a number of years. Europa over the last nine weeks leading up to the termination date updated over 400 Coverage Maps mostly by reason of a perceived need to update the underlying Base Maps and notwithstanding that relatively few Members provided either initial or new Overlay Data. He contacted numerous Members without reference to or the knowledge or consent of GSMA to curry business. An example is in the trial bundle on 15 July 2010 when he wrote to a Mr El Masmari in "round robin" form:

"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…"

20. Over the next few weeks there was an increasing loss of goodwill between the parties. Europa amended certain Coverage Map files from GSMA's servers which had the effect of removing the actual maps. GSMA sought to reinstate them from a back up file. Mr Vick wrote to GSMA on 14 June 2010 complaining about this and GSMA then removed what they had reinstated. On 16 June 2010, GSMA's solicitors wrote to Europa complaining about what Europa had done, suggesting that what had been done probably was a criminal offence and calling for the delivery up of the Assets (as defined under the Contract) on termination.
21. There was delay by Europa in handing over the Assets as its access to the GSMA server was denied. On 6 August 2010 Mr Costello called upon Mr Vick to provide them on a portable hard disk, which he did on 13 August 2013.
22. Over the following seven or eight months, claim and counterclaim were made in relation to alleged breaches of copyright or continued use of the other's intellectual property rights which I will address in relation to the individual claims below.
23. On 27 August 2010, Mr Vick sent in Europa's Statement of account and an invoice in the net sum of £67,906.47 due to it. This shows that from 19 May to 29 July 2010 441 updates of which only 16 were described as "Initial" suggesting that those Members had sent in Overlay Data for the first time. By late September 2010, Europa had instructed solicitors. The lines of the current litigation began to be drawn and defined.

The Proceedings

24. GSMA issued the proceedings on 18 July 2012 to recover sums said to have been overpaid and relief for unlawful use of data. The claims following various amendments are:

(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.

25. The Defence, finally re-amended during the trial, takes issue with the claims for reasons which will be covered in the judgment but they include various pleas of estoppel by representation and convention. Europa counterclaims: (i) £67,906.47 in respect of its outstanding invoice, (ii) £5,995 for alleged unlicensed use by GSMA of its data, (iii) £24,525.01 for credits due for annual allowances credited to GSMA in January 2010 following the termination of the Contract in July 2010 and (iv) £9,693.76 for other sums not previously invoiced.
26. The generic issues can be summarised as follows:

(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.

The Contract

27. The Contract was a relatively sophisticated document, much of which emanated from the Association's lawyers albeit that much of the Schedules must have been the subject of individual negotiation. The preamble is as follows:

"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."

28. Relevant terms of the Contract (as opposed to the Schedules) were as follows:

"1. Definitions

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…"

29. Key terms of the Schedules were:

(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 15^th 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
A- GIS-Vector	£255	£0	£255
B- GIS-Raster	£385	£0	£385
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
A- GIS-Vector	£115	£0	£115
B- GIS-Raster	£175	£0	£175
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

30. I will address the issues in the order set out in Paragraph 26 above. Whilst I will address the arguments raised by Counsel in what follows, I will not set out all the arguments.
31. Many of the issues raise issues of contractual interpretation. The principles of contract construction are well known and there are no real differences of approach as between Counsel. Very recently Mr Justice Ramsey in this Court (Oakapple Homes v DTR [2013] EWHC 2394 (TCC)xe "Oakapple Homes v DTR [2013] EWHC 2394 (TCC)") summarised the relevant references and requirements:

"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 [1998] 1 WLR 896 at 912 and Chartbrook Limited v Persimmon Homes Limited [2009] 1 AC 1101 .

22 As Lord Steyn said in Sirius International Insurance Company v FAI Insurance Company [2004] 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 [2011] UKSC 50 and to the passage in the judgment of Lord Clarke, with whom the other members of the Supreme Court agreed, at [21] 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 [2012] UKSC 14 at [19] 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 [1977] 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:

"Businesslike interpretation.

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."

32. I would add in the context of the current case the following parts of Lord Clarke's judgment in Rainy Sky SA v Kookmin Bank [2011] UKSC 50:

"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 [1985] 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."

33.  I will consider other legal aspects as they arise on the individual issues.

GSMA's Overcharging Claim

34. The main issue here revolves around whether or not Europa is entitled to be paid by GSMA for the work which it did on the Coverage Maps in respect of individual Members, following the provision of the initial Overlay Data, when no new Overlay Data was provided by any given Member. Both parties deploy commercial common sense arguments to support their respective interpretations.
35. So far as material background facts are concerned, there is nothing to suggest that both parties were aware or mutually believed prior to the Contract that money would be payable for Europa reprocessing the software when all that was changing was geographical-type information on the Base Map. If anything, the financial projections tabled at meetings prior to the contract suggested that the parties mutually anticipated that income would derive from processing initial Overlay Data and further iterations of it provided by Members (See Paragraph 7 above). There is no doubt that Mr Vick did, necessarily, demonstrate his software to representatives of GSMA prior to the Contract; however, little importance can be attached to that as an aid to interpretation of the Contract because the Contract itself envisaged that there would be some development after the Contract was entered into; for instance Schedule 1A (Paragraph 3.1) requires Europa to develop the Overlay System. There is also no doubt, and I accept, that he did tell Mr Zaidifard of GSMA before the contract that the Base Maps would need to be updated at least in relation to major place names (such as Czechoslovakia changing from one country into two, Slovakia and the Czech Republic). There is no evidence however that there was any mutual discussion or understanding as to either the scope of change to the Base Maps or the way, if at all, it was separately to be paid for.
36. One therefore comes to the wording. I have formed the clear view that, from the wording used, properly and indeed commercially interpreted, Europa is not entitled to separate or additional payment for processing software simply to bring on board geographical type changes to the Base Maps. My reasoning is as follows:

(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.

37. Part of the argument has revolved around how the software was actually finally developed. Thus, Europa argues that the Coverage Map became an integral whole comprising the Coverage Overlay generated from the Overlay Data and the Base Maps and one could not "process" the Base Map in effect without processing the Overlay Data (although the latter would not change in any way). However, the Overlay Data does not itself provide for changes to the Base Maps; it is something which is intended to be overlaid on the Base Maps. The Contract, while envisaging a melding of the Base Map and the Overlay Data so that viewers could see where in any given country the Member's coverage was, also provided for separate elements, as described above. Another example is Paragraph 2.1 of Schedule 1C which states that the "Base Features will provide a single Coverage Overlay depicting strong variable coverage for one technology (e.g. 2G, EDGE, 3G)"; this points to there being only one Coverage Overlay and is inconsistent with an argument in effect that a new Coverage Overlay should be created every time Europa felt it necessary or desirable to change the Base Map.
38. It is clear from the pricing mechanism that an important commercial reason for the Agreement was that GSMA Members would have either a free or a largely subsidised update based on its other Overlay Data Submission. It becomes commercially odd if not unrealistic (if Europa's submissions are correct) that the Members get an update even if they do not want it or can not be bothered to ask for one and can be forced to contribute financially in those circumstances (where for formats C and D Members have to contribute £85 and £205 respectively).
39. If Europa was right, it could be paid, albeit only once a year, for any geographical-type changes even if it was a matter of complete indifference to the Members whether such changes were incorporated or not. Examples, albeit post-Contract can be found in some of the changes later made by Europa which include "thousands of minor updates", "additional population statistics" and the addition of hundreds of thousands of "named places" referred to in a press release of 25 July 2006. Europa responds to this by saying that some of the contractual warranties might disentitle it from any right to payment if it incorporated unnecessary changes; however, the Contract does not obviously limit changes. If anything, it only envisages changes to political borders (see Scheduled 4).
40. In the light of the above, the Contract does not entitle Europa to payment for processing simply to update the Base Maps part of the Coverage Maps.
41. Europa then seek to deploy estoppel by representation and waiver by reason of the payments made by GSMA in effect by saying that GSMA made representations by making full payments against the presented invoices, that the representations were of fact that the invoices were properly rendered and justified and that it relied upon these "representations" by continuing to update the Coverage Maps where only changes to the Base Maps were being made. This is a wholly unrealistic plea on the facts and the law:

(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 [1910] 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.

42. Europa also plead that in some way by continuing to pay GSMA failed to mitigate its damage, given that GSMA puts its case for overpayment on the basis of breach of contract for Europa charging sums to which it was not entitled. This must also fail because GSMA did not know that it had been overcharged until after termination.
43. A limitation defence is pleaded and it is accepted that it is a valid defence to the extent that the payments were made more than 6 years before the issue of proceedings.
44. So far as quantification is concerned, it was belatedly welcome that in the 9 days following the trial the parties reached a measure of agreement but also explained their areas of disagreement. This has resulted in a Summary of Revised Calculations submitted on 1 November 2013 which lists the parties' agreements and disagreements. I will address the reductions to be made from the overcharging claim (pleaded at £168,375), taking into account the burden of proof:

(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.

45. The overcharge claim has been established in the following amount:

Overcharging claim: £168,375

Less

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

Total £105,268.53

GSMA's Claim Regarding Exchange Rates

46. Payment for Optional Features (in relation to Items 5.7 and 5.8 in Schedule 7A) is on the basis that the "fee to Europa will be 50% of the fee charged to the GSMA Member" with the "remaining 50%...due to the GSMA". Whilst Europa would invoice and be paid the full amount by the Member, it had to account to GSMA therefore for 50%. Paragraph 4.1 of Schedule 7B provided for accounting on a quarterly basis in this regard. The dispute which has arisen between the parties relates to the fact that from an early stage Europa based its accounting to GSMA in relation to its credits in this regard on fixed exchange rates ($2: £1 and €1.5: £1) in circumstances in which historically the value of the pound against those two currencies has gone down markedly.
47. I should therefore first determine what the Contract means. The Contract throughout talks of payments based in Sterling and no express provision is made for what is to happen if sums receivable from Members by Europa (but to be credited to GSMA) happened to be paid to Europa in some other currency. I have no doubt that the accounting between the parties was mutually intended to be in Sterling. One must therefore analyse what the payment provision in Schedule 7A means in this context. Clearly, Europa must pursuant to Paragraph 4.1 of Schedule 7B credit to GSMA in Sterling 50% of the fees charged to the Members for the particular Optional Features. To do that, the credit must be translated into a Sterling figure. That must on any count be done by reference to the exchange rates applicable at the time that the credit is due (quarterly).
48. I have formed the view that one must have regard to the fact that the dollars or Euros received or receivable by Europa would have to be sold and Sterling purchased by Europa to achieve the credit or payment provisions in Paragraph 4.1 of Schedule 7B. This is because, in my judgment, Europa should be entitled to its reasonable costs of effecting the credit or payment of the 50% receivable. The parties agreed a 50-50 split so far as the proceeds were concerned for these Optional Features and the 50-50 arrangement would also apply, so to speak, to the unavoidable cost or charge involved in converting the foreign currency into Sterling. I would therefore construe Paragraphs 5.7 and 5.8 as meaning the net proceeds after allowing for conversion into Sterling.
49. It then simply becomes a matter of quantification as to how that is to be done. Both parties have used buy and sell data from a website (www.oanda.com) but have applied different factors with GSMA using a midpoint between the buy and sell rates or alternatively three quarters of a point towards the sell rate whilst Europa takes 3% alternatively 1.5% above the midpoint. It is therefore necessary to assess on the evidence what is probably the appropriate point between the buy and sell rates to take. The onus of proof is, for this claim, on GSMA and it has produced little or no evidence about this whilst Mr Vick explained in evidence which was not seriously challenged that 3% above the midpoint representing what the likely cost to Europa would have been. I accept his evidence and accordingly, subject to issues of estoppel, GSMA's entitlement to recover is limited to the figure of £42,405.68. This figure has been taken from the Summary recently provided to the Court; it is agreed that £3,870.19 should be deducted from that figure to reflect Europa's limitation defence, leaving a total of £38,535.49.
50. The primary defence to this claim however arises from a meeting said to have taken place in August or September 2004 between Mr Vick of Europa and Messrs Zaidifard and Unsworth of GSMA at which it was said to have been agreed or instructed that the fixed exchange rates referred to above should be applied. GSMA did not call either of these people as witnesses. Mr Vick provided written and oral evidence about this and there is no doubt that what was said or agreed at this meeting was never recorded or communicated in writing at any time by either side. He dated the meeting by reference to two versions of the Guide to Members issued on 19 August and 13 September 2004 because in the latter there was reference to changes in the euro and the dollar rates chargeable for the various services. In oral evidence, not referred to in his witness statements, he also timed the meeting by reference to the purchase of a necklace for his wife for their wedding anniversary later in September. I felt strongly that when he gave his oral evidence that he was over-embellishing the story. His written evidence was in one respect inconsistent with the pleaded case, which talked about either instruction from GSMA or agreement; in his evidence, he said only that there was agreement. Mr Vick had signed the Statement of Truth for the Re-amended Defence and Counterclaim which therefore suggested that over the nine years since this alleged agreement his recollection has changed.
51. I found his evidence about this "agreement" unconvincing. I can readily accept that there may well have been a meeting at GSMA's offices in Bond Street in or about September 2004 and that there may well been discussions about the charges to be made to Members, referred to in the later version of the Guide which emerged later in September. However, the fact that absolutely nothing was recorded let alone noted in writing by anyone suggests that there was no agreement at all or one which was in any way intended to bind the parties. The Sterling to dollar and euro relationship must have been known or anticipated to be relatively volatile, certainly over the likely life of the Contract (5 years plus). It is unlikely that the parties would want to commit themselves to a fixed arrangement which could either in the short or the long-term be harmful financially to one side or the other (or from time to time to both). If they were committing themselves in that way, I am confident that Mr Vick who was not simply a computer boffin but clearly a well-organised and very commercially minded person would want to have ensured that there was some record in writing. There was no such record. What is more likely than not however is that Mr Vick, who accepted orally in evidence that everything discussed in this regard was subject to review, discussed and agreed the prices in Euros and dollars which were to be charged to Members for the Optional Features and these were recorded in the Guide issued later in September. The dollar and euro rates in the Guide do translate at €1.5 and $2 to £1 but this simply reflects rounded up conversion rates at the time, which would be probably unexceptionable at that time to Members who wanted to pay in Euros and dollars.
52. I am therefore satisfied that there was no agreement or instruction as pleaded and therefore this claim fails. The fact that the running account identified credits to GSMA from time to time did not bring the exchange conversion factors to the surface because simply Sterling amounts are credited; in any event only two material lump sum invoices were issued during the Contract itself.
53. By way of a 12^th hour re-amendment, estoppel by convention or acquiescence is pleaded in relation to this claim. This is untenable in circumstances where (as here) there was no relevant onvention or agreement established in fact. Reliance is placed on the fact also that GSMA paid out on two invoices during the course of the project. However, I am satisfied that GSMA did not know about the fact that Europa was converting dollar and euro receipts by way of fixed rates; it was certainly not clear either on the invoices, which simply showed a total said to be due, or the running account occasionally provided to GSMA which simply showed the credits to GSMA in Sterling; GSMA would not necessarily know in what currency Europa was receiving payments. Some knowledge must be required on the part of GSMA and it had no such knowledge. Europa would have had an added difficulty raised by Clause 32.1 which provides that no "addition to or modification of any provision of this Agreement shall be binding upon the parties unless maybe in writing and signed by" duly authorised representatives of each party. There can be no doubt in my judgment that, if the people in question had agreed what Mr Vick says they agreed, this would have amounted to a modification of the Contract because it would apply until further review at least fixed exchange rate conversion factors to payments which have otherwise been agreed in the Contract. Therefore, such agreement would not have been binding in any event.
54. It follows from the above that there has been further overcharging in the sum of £38,535.49 recoverable by GSMA from Europa.

Ancillary Charges Credits

55. GSMA claims for the payment of credits arising under Paragraphs 5.7 and 5.8 Schedule 7A. The credits are said to arise in relation to "aggregated coverage maps" which are said to be "roaming partners coverage maps" within the meaning of Paragraph 5.7 of Schedule 7A. Additional items (thumbnail map images, fax maps and high use surcharges) were provided to Members and are said also to give rise to sums due under Paragraphs 5.7 and/or 5.8. Europa argues that the aggregated coverage maps provided to Members did not fall within the meaning of Paragraph 5.8 because they were not a collection of individual coverage maps and they were not hosted on the GSMA server. It also argues that the other ancillary items do not fall within Paragraphs 5.7 or 5.8.
56. The burden of proof is with regard to these claims is on GSMA. The reality is that GSMA has provided no evidence of its own that these charges which were made by Europa to members fall within Paragraphs 5.7 and 5.8. Mr Costello simply refers (at paragraph 118 and 119) that GSMA's solicitors noticed some of Europa's invoices which invoiced Members for "Aggregated Coverage Maps" for display on individual Members' websites and raised issues about the additional items which were for display on that Member's website. Some references are made to invoices or quotations to Members referring to "aggregated maps (combined partner coverage each country)", "Thumbnail images (small images of top-level maps)", "High Usage Surcharge (+ 1 million maps)" and "provision of fax map images".
57. Essentially, GSMA has to rely on an admission in the Amended Defence (Para. 40L, that the aggregated coverage maps show for any particular network operator the combined coverage of its various roaming partners in a particular foreign country) and on what Mr Vick says in his second witness statement. However, Mr Vick explained in his evidence why the aggregated maps charged for were a special type of coverage map, not dependent on the Coverage Maps called for by the Contract, but they were effectively specifically customised and bespoke and could not be used by Europa for any other purpose. The fact that they contain some information, possibly even a substantial amount of information, which was also in one form or another on the Coverage Maps which were to be put on the GSMA Members' website does not mean that they fall necessarily within Paragraphs 5.7 or 5.8 of Schedule 7A. It is worthy of note that he gave unchallenged evidence that, although GSMA knew throughout that Europa was producing these aggregated coverage maps for individual Members it never suggested that it was entitled to any share of the revenue for them. Schedule 1C (Paragraph 7.4) makes it clear that, where GSMA Members desired from Europa customisation beyond the Optional Features as specified, the provision of such a service is outside the scope of the Contract and in effect Europa was entitled to charge and keep the revenue in relation thereto.
58. Mr Vick gave similar evidence in respect of thumbnail maps to the effect that, although a reduced size version of Network Insight coverage maps, different software was used to create a map which was to a size and specification defined by each Member, specifically styled in different brand colours and effectively involved customisation. With regard to fax maps, these were styled in black-and-white with the specification suitable for fax transmission and were not displayed on any websites. In connection with high use surcharge, Mr Vick explains that this involved particularly high use clients who were willing to pay for the addition of additional servers from Europa, over and above what was available from GSMA; each Member who paid was given these additional server resources and, although GSMA knew about this, it never suggested there should be a revenue share in respect of this.
59. There has been no effort to present to the Court any visual representation of what it was that Europa provided to these Members in relation to aggregated coverage maps or the other additional services. In the light of Mr Vick's evidence, I am not satisfied on a balance of probabilities that as a matter of fact GSMA has established its case in this regard in any respect. Accordingly its claim which totalled just over £66,000 has not been proved.

Miscellaneous Invoices not Accounted for

60. GSMA asserts that there are six invoices which have not been accounted for, Vodafone UK (2), Sheba Telecom, Celtel Uganda, Vodafone Portugal and T Mobile USA, in that they involve additional services which are Optional Features, credits which are due to it in the total sum of £6,207. The Amended Defence admits liability in relation to Vodafone Portugal, accepting that there is a credit due of £2,828 but denies liability for the rest. Mr Vick was not asked questions about these invoices. Furthermore, in opening Mr Crangle accepted that GSMA's claim should be reduced to £5,608 because it accepted the explanation is given about Sheba and Celtel.
61. This claim can be addressed in short order:

(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.

62. The amount due to GSMA under this head is therefore £5,608.

Other Claims

63. Although the above almost entirely addresses the claims made by GSMA, it also argues that Europa acted wrongfully by generating a very large amount of processing work in the last 9 weeks of the Contract. As I have held that the update work relating only to the Base Maps is irrecoverable, that takes out the large bulk of this complaint. I do consider however that the Contract required Europa to provide the requisite services (as called for by the Contract) until termination and there is therefore no room for claims based on implied terms or on Clause 23.4 of the Contract (non-competition after termination) that could bar Europa from doing what it was contractually obliged to do in terms of service provision.
64. Finally, GSMA maintained a complaint that post-termination Europa used Overlay Data, which (there is no issue) it was not entitled to do. However, Mr Costello accepted under cross-examination that, based on the examples which he had based his evidence in this regard upon, he could not factually justify this complaint. When one couples that with Mr Vick's largely unchallenged evidence to the effect that Europa did not use Overlay Data post-termination but new information obtained thereafter from GSM operators, there is no factual basis for this claim. That complaint is therefore dismissed.

Europa's Counterclaims

65. These claims are: (i) the invoice claim (£67,906.47), (ii) unlicensed use of Network Insight (£5,995), (iii) reclaim of credit (£24,525.01) and (iv) sums not previously claimed (£9,693.76).
66. The parties unwittingly at least have confused matters, not least since the post- trial submission of lists of what was agreed and disagreed. So far as I can ascertain, they produced a 17 page schedule of every previously itemised charge for processing work which then goes to explain the GSMA overcharge claim but necessarily having addressed that earlier in this judgment I have addressed those parts of the invoice counterclaim which deal with processing-type claims. As I understand the position, my decision that there has been an overcharge of £105,268.53 takes into account those items which should not have been charged for and reduce the invoice claim by £34,006.47. However, by examining the Counterclaim and Annex 2 upon which it is based, that leaves only the reclaim of credit and the sums not previously claimed ((£24,525.01 + £9,693.76 = £34,488.77). These numbers do not tie up exactly with Annex 2. They become more complicated because Mr Vick gives evidence that the reclaim of credit claim should be £27,474.57 but no application to amend this figure was made.
67. I will proceed on the assumption that there is nothing separately left in Europa's invoice claim.
68. In relation to the complaint in relation to the unlicensed use of Network Insight, I find this proved on the facts. Mr Skinner gave evidence that although he had deleted some of the Europa files post-termination in August 2010, he accepted that some files were missed and that files were not finally removed until the end of October 2010. However, Europa put in evidence a Google Analytics analysis which showed recorded use at least until the end of October 2010; although there were some challenges to that by GSMA's Counsel, the extent and numbers of occasions on which access is recorded satisfies me that use of Network Insight continued after termination. Mr Vick says that he saw map images on GSMA's website until February 2011. Complaints continued to be made about this activity until the end of December 2010 by Europa's solicitors. I find that the unlawful use continued until February 2011. The basis of quantum is not challenged being based on a yearly licence fee of £5,995; compensation is therefore 7/12ths of this figure, £3,497.
69. Turning to the reclaim of credit claim, this relates to the fact that Europa credited to GSMA £2,750 for each of 21 customers in January 2010 for them using the Network Insight software, this being an annual charge. It is said that because termination, not having been contemplated at that time, occurred in July 2010, the customers did not receive the service from the end of July to December 2010 and GSMA should pay back the proportion of these credits for the post-termination period. This was put originally on the basis of mistake but by re-amendment on the basis of unjust enrichment. The case in mistake was not pursued with any vigour if at all because on the facts there was no mistake of fact as such; there was merely an expectation (or "misprediction") that the Contract would continue for a year.
70. One needs to bear in mind that these sums were never actually paid to or received by GSMA: they were simply credited to the account which at that stage (January 2010) was substantially in debit. They only emerged as a counterclaim item after termination. I accept Mr Vick's evidence that, post-termination, he contacted each of the 21 customers who had procured a licence to use the software for the calendar year and they and he agreed that the licences should continue until the end of the year.
71. The starting point is the Contract. These fees were due in relation to Optional Feature 5.7 in Schedule 7A: thus 50% of the fee charged by Europa to the Member is due to GSMA. Paragraph 4.1 of Schedule 7B calls for Europa to credit GSMA "any moneys due to it" quarterly. The invoices to the Members were expressly for the provision of the Network Insight service from 1 January to 31 December 2010.
72. One can test the issue by asking what would happen if the Contract was terminated on the day after both the invoice was delivered and the credit entered in the running account for GSMA (in January 2010). Optional Feature 5 involves the provision of a licence to the Member to utilise the Network Insight element of the Coverage Map for a year. In truth, the Coverage Map will not be useable as such at least following termination well after the end of the original "Initial Term" (July 2009). The Member as between Europa and it would then surely be entitled to the return of 11/12ths of the licence fee, all things being equal to reflect the fact that it was only to receive one twelfth of the value of the licence (i.e. for January 2010). This is not a question of mistake but partial (near total) failure of consideration or breach of contract for failing to continue the licence for the last 11 months of the year. By one legal means or another, 11/12ths would be returnable to the Member. Of course, if a new agreement was entered into as between Europa and the Member, that would dictate what was payable.
73. I do not see what is different in this case. GSMA has, as agreed, been given a credit for the securing by Europa of a contract for an Optional Feature with a member which is expressly predicated upon the granting by Europa of a 12 month licence to that Member. By reason of the termination in July 2010, the licence in that form could no longer be given and maintained by Europa; the Coverage Map could no longer be provided as such and maintained by Europa on the member's own website because all the Assets under the Contract would have to be returned. Thus, absent the intervention of the doctrine of unjust enrichment, GSMA keeps a benefit, the credit now translated into money by way of the judgment in this case, which was predicated upon the maintenance of a 12 month licence to the Members in question when only 7 months' worth has been provided, through no fault of Europa or indeed of GSMA. Those Members would have been entitled to a credit from Europa for the 155 days' worth of licence period which could not be used after termination. GSMA is obliged to return that element because in effect it is only entitled to 50% of the fee which can properly be charged to those Members through the umbrella of the Contract. Otherwise, it would be unjustly enriched. It is no answer to say that Europa has not had to pay anything back to these Members because Mr Vick entered into new agreements with them and provided them with the benefits thereof for the rest of the year.
74. The sum returnable by GSMA to Europa is £24,523.97 (21 customers x £2,750 ÷ 365 x 155).
75. A corollary of this claim is that GSMA's exchange rate claim is overstated because it was partly related to the credits due in early 2010 which were credited as due to GSMA in effect for the whole year. Arithmetically, it follows that, if parts of these credits are repayable to Europa, then the amount which I have allowed above (£38,535.49) needs to be further reduced to reflect the exchange rate allowances which would not otherwise be due on the credits justifiably reclaimed. The appropriate sum is £4,664.29.
76. Finally, I turn to the sums not previously claimed. This relates to 7 items overlooked and therefore not invoiced by Europa or credits given which it is suggested should not have been given prior to termination. Two of these (Vodafone Invoice 06-068 - £590 and T-Mobile Netherlands Invoice 08-035 - £2,101.25) are no longer pursued. I will in summary form address the contentions by reference to the table latterly provided by the parties:

Item	Findings
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

77. There was no evidence in Mr Vick's statements about the claims which made up this claim pleaded as oversights in GSMA's favour. The only real evidence which he gave was under cross-examination and he was very unconvincing about this claim. It is rejected as unproved.
78. The Counterclaim is established in the total sum of £28,020.97.

Overall Decision

79. There will be judgment on the Claim in favour of GSMA for £144,747.73 and judgment on the Counterclaim in favour of Europa for £28,020.97. The net sum due to GSMA is £116,726.76..