![HT-2020-000448 - [2024] EWHC 1185 (TCC)](https://backend.juristeca.com/files/emisores/logo_yJUntHA.png){kind=logo}
CONTENTS
CONTENTS
B. Issues of Construction of the Agreement 8
Principles Applicable to Issues of Construction 8
The Defendant’s Obligations and Responsibilities 10
The Delay and Notice Provisions 21
Conditions Precedent: Clauses 5 and 6 26
Conditions Precedent: the authorities 27
The Delay Damages cap under Clause 52.2.5 44
Is TCS’ claim for loss of anticipated costs savings excluded by Clause 52? 44
C. Compliance with Clause 5.3, Agreement and Estoppel 48
D. The Parties’ Claims relating to Delay 58
Mr Britton’s First Analysis 60
Mr Britton’s Second Analysis 75
Conclusion on Mr Britton’s Analyses 78
TCS’s submission based upon Mr Jardine’s analysis 78
Responsibilities for Delay on the ‘Infrastructure’ Critical Path 81
The Relevant Period for Consideration 84
Compliance with Notice Provisions 85
From August 2017 to 19 September 2018 87
F. Delay/Partial termination Related Quantum 122
Summary of TCS’s Delay Claim Recovery 129
Disclosure Scotland Extension Costs – Item 1 of the Updated Schedule of Loss 135
Loss of Anticipated Savings – Item 3 of the Updated Schedule of Loss 138
Updated Schedule of Loss Item 2 147
R0 Hosting and Infrastructure Costs - Item 5 of the Updated Schedule of Loss 148
R0 Technology Refresh – Item 6 of the Updated Schedule of Loss 148
R0 N-1 Sustainment Costs – Item 7 of the Updated Schedule of Loss 149
R0 Maintenance Costs – Item 8 of the Updated Schedule of Loss 150
G. DBS’s Defects Counterclaims 151
Quality-related Obligations 153
Good Industry Practice and Defects 154
Design by Default Standards 156
Barring Portal: Loss of productivity - Item 11 of the Updated Schedule of Loss 180
Item 19 of the Updated Schedule of Loss 183
Document naming, bundle creation and performance 191
Document Storage (Item 21) 195
Other B1 Barring Quality Issues 196
Item 24 : Loss of Efficiency Claims arising out of R1 Barring Quality/Useability Issues 202
Item 15 of the Updated Schedule of Loss 204
Identification of all services (3.2.2) 213
Knowledge Transfer (3.2.6 and 3.2.7) 214
Providing all documentation to a replacement contractor (3.2.1 and 3.2.10); 219
I. The Charges Variation Dispute 228
Issue 4: How Clause 2.8.5 of Sch. 2-3 applied to Volume Based Service Charges in Service Year 5 237
Conclusion on Volume Based Service Charge 241
MR JUSTICE CONSTABLE:
- 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