CL-2024-000308 - [2025] EWHC 1332 (Comm)

This issue has peripheral relevance. The primary case of SoS is that the indexing is to be effected using actual costs. They say they cannot do the calculation now because they do not have the information as to Airwave’s actual costs. Airwave says this could never have been the proper way of calculating indexation because (among other reasons) SoS have no right under the Framework Agreement to information as to Airwave’s actual costs.

If Airwave is correct on access rights, this seems to me merely one pointer in favour of Airwave and no more than that. If the Framework Agreement on its proper construction made clear that the basis of indexation was Airwave’s actual costs, it would be necessary to fashion a means for the actual costs to be determined, whatever the rights of access under Schedule 12. Calling this point a Key Issue flatters it.

Clause 23 provides that the parties shall comply with Schedule 12. Schedule 12 sets out the Home Office’s entitlement to inspect Airwave’s documents:

“1.1

The CONTRACTOR [Airwave] shall keep full and accurate Relevant Records relating to its performance of the Services (including but not limited to records relating to its compliance or otherwise with the Service Levels but excluding information regarding the composition of the Contract Charges: i.e., financial information relating to research and development costs, overheads and profits). This obligation shall subsist throughout the term of this Framework Arrangement and, in any event, for a period of 7 (seven) years after the date of creation of each Relevant Record. The CONTRACTOR shall require all Sub-contractors to comply with the obligations under this Schedule 12.

1.2

In this Framework Arrangement, the term "Relevant Records" means information, data, service performance records, records relating to the CONTRACTOR'S provision of the Services and use of the Spectrum, supporting documents and materials held, controlled or available for access by the CONTRACTOR relating to the supply of the Services by the CONTRACTOR and the use of materials and sites in connection therewith. "Relevant Records" includes:

1.2.1

the CONTRACTOR'S "Service Records", meaning: (a) documents reasonably necessary to evidence the CONTRACTOR'S entitlement to be paid any out-of-pocket expenditure outside the scope of the Contract Charges which is required by this Framework Arrangement to be reimbursed to the CONTRACTOR by the AUTHORITY; (b) information, data and service performance records relating to the provision and level of performance of the Services by the CONTRACTOR and the achievement (or otherwise) of Service Levels, and the CONTRACTOR'S billing records; and (c) any other documents and information necessary to substantiate the CONTRACTOR'S invoices to the Customers and which is of a type which is sufficient to demonstrate the correct basis of calculation of the Contract Charges based upon the Charging Structure;

1.2.2

information sufficient to identify the allocation of the Contract Charges to the various component resource types comprising or necessary to delivery the Network Services but without demonstrating the allocation of cost and profit within those component resource types.

2.1

Subject to the provisions of paragraphs 2.3, 2.4 and 3.2, the CONTRACTOR grants to the AUTHORITY, and to any statutory or regulatory auditors of the AUTHORITY, the right of reasonable access to (and, if necessary, to copy) the Relevant Records during normal business hours solely for the purposes set out in this Schedule 12.

…

2.4

The AUTHORITY'S rights of access and inspection under this Schedule 12 shall not apply to any "Financial Records", being any parts of the Relevant Records which identify the financial cost to the CONTRACTOR of the materials, sites and resources used by the CONTRACTOR in the provision of the Services.

…

3.1

The AUTHORITY shall be entitled to inspect the Relevant Records and obtain from the CONTRACTOR such other information as is reasonably necessary to fulfil the AUTHORITY’s obligations to supply information for parliamentary, governmental judicial or other administrative purposes.”

Airwave drew attention to the exclusion in the obligation to keep Relevant Records in 1.1 and the limitation on access in 2.4. The SoS relied on the right of access for “other administrative purposes” under 3.1 but submitted that even if I was against SoS on Key Issue 4 it did not undermine SoS’ submissions as to the appropriate construction of the indexation provisions.

I was not persuaded that this issue took matters any further.