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Express Agreement
Express Agreement
DBS contend that there is no pleaded case based upon express agreement. DBS is correct. The only pleaded case is based upon what is alleged to be a shared and communicated common assumption arising in the circumstances at paragraph 20.5.6 of the Reply.
In any event, there is no evidence of the alleged express agreement. When asked to articulate precisely what the agreement was, Mr Cogley said it was, ‘We agree with your request’.
The request referred to was that set out in TCS’ letter of 25 July 2016, contained within its notice pursuant to Clause 5.1. This stated:
In accordance with clause 5.1 of the Agreement, which requires TCS to provide DBS with notice where it will not, or is unlikely to, Achieve any Milestone by the relevant Milestone Date, please accept this letter as confirmation of a Delay. This means that the contractual Milestones for Release 1, as presented at Project Board on 25th November 2015, which we have been jointly delivering to, will not be Achieved on time.
The most significant reasons for this Delay are:
Delay in delivery of internet connectivity
Delay in delivery of content inspection
Delay in on-boarding to Verify
TCS will provide DBS with a draft Exception Report, which will contain additional information pertaining to the Delay, in accordance with clause 5.2 of the Agreement. However, as we are still in the process of re-planning, and still awaiting additional information from DBS to allow this to complete, TCS is currently unable to determine the detailed consequences of the Delay. Accordingly, TCS is unable to provide a draft Exception Report within the stated 5 Working Days from the date of this letter and requests DBS’ permission for an extension.
As discussed at R1 Project Board on 21st July 2016, please can you confirm by when DBS will be in a position to provide the information required by TCS to allow it to complete the re-planning, which includes the baselined HPE plan, confirmation of Verify stage completion dates, and the dates by which all other external dependencies will be met (e.g. those we have for Vodafone and HOT).
TCS will, in due course, and following receipt of the additional information that is required from DBS, confirm to DBS when it is possible to provide a draft Exception Report.
Colette Owen responded to this letter on 2 August 2016, which was beyond the 5 Working Days required by Clause 5.2. The email recited elements of TCS’s letter and then said:
‘Current situation is:
Updated HPE Delivery Plan I believe TCS received this yesterday and Paul Martin is working on plugging it in to the TCS plan.
Decision on Verify / Post Office Contingency TCS has been informed that Verify is the solution.
Confirmation of Verify stage completion dates Planning session this week.
Dates by which all other external dependencies will be met. We will need to plan on the basis of assumptions (e.g. those we have for Vodafone and HOT)’
TCS contends that looked at objectively, the response from Ms Owen is only consistent with her communicating DBS’s agreement to the request made by TCS. It is therefore said that this amended the 5 day period for the purposes of Clause 5.2 itself, which states:
“(or such other period as the AUTHORITY may permit and notify to the CONTRACTOR in writing)”
Ms Owen’s communication was not in my judgment a communication capable of satisfying these words of Clause 5.2 or constituting an unambiguous agreement to the request for permission to serve the exception report outside the stated 5 Working Days so as to constitute an agreement (or, indeed, an unambiguous waiver in writing for the purposes of Clause 62). Ms Owen engaged in the question of when information sought may be available, and did so in the context of the requested permission for an extension to serve the draft Exception Report, but the response was not sufficient to be a notification of some further period.
It is clear that TCS themselves did not read this communication as a formal agreement to their request for an extension. In the draft Exception Report which was eventually provided in March 2017, TCS wrote:
‘I note that you never formally responded to our request in that letter for an extension within which to submit an Exception Report.’
No other written communication is relied upon giving rise to an agreement. It may well be because of the difficulties of this argument that the point was not pleaded.
- 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