HT-2020-000448 - [2024] EWHC 1185 (TCC)

For the reasons set out in in respect of Updated Schedule of Loss item 3, I have concluded that the quantification of DBS’s loss of productivity claim is flawed and the claimed losses irrecoverable. In the circumstances, item 11 also fails.

However, even if the WFPM was a reliable basis for starting to assess a loss of productivity in general terms, there is absolutely no proper attempt by DBS to provide a sound evidential link between the specific useability breaches established in respect of the Barring Portal and loss of productivity caused to DBS staff. DBS merely takes an overall sum as the aggregated effect of all Barring related complaints, and suggest in it Written Closing Submissions that it be reduced it by 50% to account for inefficiencies ‘caused by performance issues and other matters which do not form part of DBS’s claim’. DBS allocate 40% to the portal issues and 60% to other barring claims on the basis of the evidence of Ms Clare Graves, who whilst accepting that ‘I am not in a position to comment directly (from any personal knowledge) about the impact’ states ‘following consultation with my colleagues, I believe it is fair to estimate that about 40% of the 78.75 excess staff are needed because of Barring Portal Problems’.

There is no credible evidential basis for the suggested percentage reduction of 50% at all: DBS’s own witness evidence does not engage with the question of assessing the performance issues for which DBS itself was responsible or other matters which do not form part of DBS’s claim. Other than Ms Graves’s belief that it is a ‘fair estimate’ on the basis of her discussion with others, there is no explanation as to how the 40/60 percentage has been arrived at so as to allow even the most superficial interrogation. I also note that whilst Ms Graves said (in February 2023) that ‘when the Barring Portal is replaced (in the coming months), it will be easier for us to form a more certain view about this and look at the impact on the workforce by reference to current statistics and models’, DBS did not in fact seek to update its evidence for trial on the basis of the efficiencies in fact gained by the introduction of their new portal.

DBS’s approach cannot be equated with the Court ‘making the best estimate possible’ urged upon the Court by DBS, who relies upon the judgment of Toulson LJ (as he then was) in Parabola Investments Ltd v Browallia Cal Ltd [2010] EWCA Civ 486, [2011] QB 477 per Toulson LJ (as he then was) at [22] – [23]:

DBS is correct that the loss of anticipated savings claim is by definition a hypothetical exercise, and this places the claim in a different category to global delay or disruption claims which are claims which seek to measure the effect of something which in fact happened in the past, and to which a standard balance of probabilities causation test applies. However, the ability for the Court, once an actionable head of loss is established which head involves a hypothetical exercise, to disapply the usual balance of probabilities approach to evaluate chances is not to be equated with asking the Court effectively to guess or make arbitrary and unsubstantiated percentage adjustments to claimed amounts in order to take account of matters which need to be excluded from a globally calculated sum. There must be an evidential basis justifying the figures used and the Court must be astute to considering critically whether the method of assessment advanced really is the ‘best’ estimate available. If there are different and more obviously evidentially rigorous approaches to assessing of loss which the claiming party has not advanced, the Court may simply conclude that it is not in a position to assess the ‘best’ estimate.

In the present case, the causal link between the breaches established and lost inefficiencies was, in relation to this part of the DBS’s case, principally the lack of take up of the digital system by applicant. It would have been entirely possible to present an evidence-based quantum analysis that (for example) identified the number of applications which would have been handled digitally, had the take-up target been met, and the number of digital applications in fact made, both based upon the actual numbers of applications made. The delta is the number (on DBS’s case) which would have caused, in each case, additional work for DBS which would not otherwise have been required (the multiplier). Analysis would have been able to establish, on the basis of factual evidence of what actually happened, an approximate difference in the amount of time, and therefore cost, between handling an application on paper versus digitally (the multiplicand). The multiplier applied to the multiplicand would have been a rational and reasonably robust approximation of the hypothetical loss. In circumstances where, as I have found, there were other reasons not due to TCS which caused the take up to be lower than targeted, it may be that the multiplier would be adjusted downwards on the basis of a percentage adjustment to estimate the effect of the difference causes, but this sort of adjustment would be applied to a significantly more evidentially rigorous starting point. It is this type of ‘best estimate’ which Toulson LJ was observing is permissible in assessments of the hypothetical.

I do not consider that, even if the WFPM was itself a reliable document, and allowing for the type of approach permitted in the context of a claim which is assessing a hypothetical situation, the Court is able to conclude that the anticipated loss of savings claim advanced by DBS represents the best estimate of the losses which would actually have been caused to it by the established breaches.