Thanks for your response. The 'act' or 'conduct' the pursuer is arguing is a indication of acceptance, is the fact they they disclosed 'confidential information'.
However, the NDA clearly mentions that 'confidential information' is disclosed both before and after the date of the contract.
Since the NDA so clearly acknowledges a possible disclosures or 'confidential information' both before and after the date of the NDA, then disclosure by itself cannot be considered a significant change of 'conduct'.
The NDA allows for confidential information to be disclosed prior to signing the agreement, not as a step to be taken after the signing of the agreement.
Here is the exact wording of the contract:
"Confidential lnformation" means confidential commercial, financial, ...[redacted for brevity].. which is
disclosed before or after the date of this Agreement or which is produced from such information
(including any evaluations);
I think that Rei Interventus would not apply, as the contract allows disclosure both before and after the date of the agreement. Meaning disclosure is not a change in behavior.
Forgive any repetitiveness here, as it's quite difficult for me to explain.
As for a Note of Arguments, we have not yet reached this stage. A closed record will be filed tomorrow and we have agreed to appoint the cause to a procedure roll. The pursuers arguments were made outside of court, to persuade me to drop my defence. (Which I am not).
To wrap up this question a little more speedily than waiting for notes of argument, can I ask for the following?:
Are there any reference or instructions you can point me to on the procedure of making a 'tender', by which I mean the Scottish equivalent of a Part 36 offer. Which will give the associated cost benefits it makes possible.