![HT-2020-000448 - [2024] EWHC 1185 (TCC)](https://backend.juristeca.com/files/emisores/logo_yJUntHA.png){kind=logo}
Compliance with Clause 5.3, Agreement and Estoppel Introduction
Compliance with Clause 5.3, Agreement and Estoppel
Introduction
As set out above, Clause 5.1 requires TCS to notify DBS as soon as reasonably practicable of the fact of Delay or potential delay and summarise the reasons for it. TCS must then, pursuant to Clause 5.2, submit a draft Exception Report to DBS within 5 Working Days after the initial notification. Clause 5.3. sets out what the draft Exception Report must contain. Clause 5.6 makes compliance with Clauses 5.1, 5.2 and 5.3 a condition precedent to claiming compensation.
It is common ground that no draft Exception Report was served by TCS within 5 Working Days.
In its pleading, a number of arguments were raised including (a) prevention; (b) TCS did comply in that it did what was possible; (c) an implied term that compliance was not required where it was not practicable to comply and (d) an implied term that compliance was not required where DBS was aware of the matters it would address.
None of these arguments was advanced in TCS’s written or oral Closing Submissions. Insofar as necessary, had they been I would have found that these arguments were without merit. Briefly: (a) TCS was not in fact prevented from complying. Whilst TCS had limited information in respect of the consequences, it could have provided the information they had. Any difficulty in providing information may have been relevant to arguments about the adequacy of the draft Exception Report; (b) TCS did not comply with the timing obligation, as a matter of fact; (c) it was not impractical to comply (as per (a)), even if the implied term existed; and (d) the implied term alleged is neither necessary nor obvious.
In written and Closing submissions, TCS’s focus narrowed to two arguments, namely (a) there existed an express agreement to TCS’ request for an extension to the 5 day requirement (such that the condition precedent fell away); and/or (b) there was a shared and communicated common assumption on which TCS and DBS were proceeding that there was no requirement to serve an Exception Report within 5 Working Days in respect of the relevant delays, giving rise to an estoppel by convention or acquiescence or conduct.
- Heading
- CONTENTS
- IntroductiON
- The Factual Witnesses
- Expert Evidence
- Programming Experts
- Forensic Accounts
- The Parties Submissions
- Principles Applicable to Issues of Construction
- The Defendant’s Obligations and Responsibilities
- Clause 15
- Clause 9.5 which states
- Clause 14.5 of Schedule 2-6 which states
- The Delay and Notice Provisions
- Clause 7
- Conditions Precedent: Clauses 5 and 6
- Conditions Precedent: the authorities
- Clause 5.6
- Clause 6
- Clause 8
- Limitations of Liability
- A single or multiple caps?
- The Delay Damages cap under Clause 52.2.5
- Is TCS’s claim for loss of anticipated costs savings excluded by Clause 52?
- Compliance with Clause 5.3, Agreement and Estoppel Introduction
- Express Agreement
- Estoppel
- Introduction
- R1 B&B Delays
- Mr Britton’s First Analysis
- Mr Britton’s Second Analysis
- Conclusion on Mr Britton’s Analyses
- TCS’s submission based upon Mr Jardine’s analysis
- Responsibilities for Delay on the ‘Infrastructure’ Critical Path
- R1-D
- Compliance with Notice Provisions
- Analysis of Delays
- Up to August 2017
- From August 2017 to 19 September 2018
- Analysis
- Failed to confirm its desired functional scope of R1 Disclosure in relation to the Customer-to-Business portal and Accountable Officer’s Update Service functionality. Such confirmation was a prerequis
- Failed to make available an end-to-end test environment for the Interactive Voice Response system
- Failed to agree upon a data migration approach, without which the Claimant could not complete the build of a data migration environment so that anonymised data could be made available for testing
- Failed to ensure that relevant external stakeholders were available to participate in Final Systems Integration Testing
- Partial Termination
- TCS’s Claims
- Non-Manpower Costs
- Anticipated Cost Savings
- Summary of TCS’s Delay Claim Recovery
- DBS’s Claims
- Delay Payments
- R1-B&B Delay
- Disclosure Scotland Extension Costs – Item 1 of the Updated Schedule of Loss
- Loss of Anticipated Savings – Item 3 of the Updated Schedule of Loss
- R1-D Delay
- R0 Licence Costs – Item 4 of the Updated Schedule of Loss
- R0 Hosting and Infrastructure Costs - Item 5 of the Updated Schedule of Loss
- R0 Technology Refresh – Item 6 of the Updated Schedule of Loss
- R0 N-1 Sustainment Costs – Item 7 of the Updated Schedule of Loss
- R0 Maintenance Costs – Item 8 of the Updated Schedule of Loss
- Savings
- Introduction
- Quality-related Obligations
- Good Industry Practice and Defects
- Digital by Default Standards
- Section 71
- The Basics Portal
- Section 73
- The Barring Portal
- Section 75
- Section 76
- Barring Portal: Loss of productivity - Item 11 of the Updated Schedule of Loss
- LPF Portal
- Siebel Useability Issues
- Redaction
- Document naming, bundle creation and performance
- Adobe Licence (Item 20)
- Document Storage (Item 21)
- Other B1 Barring Quality Issues
- Scan on Demand
- Special Characters
- Letters
- Item 24 : Loss of Efficiency Claims arising out of R1 Barring Quality/Useability Issues
- N-1 Sustainment Costs
- Causation and Loss
- Exit/Service Transfer
- Identification of all services (3.2.2)
- Knowledge Transfer (3.2.6 and 3.2.7)
- Section 95
- Providing all documentation to a replacement contractor (3.2.1 and 3.2.10)
- The identification of all leases, maintenance agreement and support agreements in connection with the provision of the services (3.2.3)
- Providing any other information or assistance reasonably required by a replacement contractor (3.2.14)
- Causation and Loss
- The Security Incidents
- The Charges Variation Dispute Introduction
- Issue 1: How the amount of an ‘over-recovery of the Forecast Revenue’ (Clause 2.8.4) or ‘under-recovery of the Forecast Revenue’ (Clause 2.8.5) is to be measured
- Section 104
- Issue 4: How Clause 2.8.5 of Schedule 2-3 applied to Volume Based Service Charges in Service Year 5
- Issue 2: Whether the Predicted Volumes for Basics in Service Year 4 were 1,000,000 (TCS’s case) or 320,374 (DBS’s case)
- Conclusion on Volume Based Service Charge
- Conclusions