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Good Industry Practice and Defects
Good Industry Practice and Defects
DBS also rely upon Clause 9.3 by which TCS was required to perform the Services in accordance with, amongst other things, Good Industry Practice (Clause 9.3.1). “Good Industry Practice” (‘GIP’) was defined in Schedule 2-1 as
‘the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector’.
DBS sought to draw a distinction between the requirement of GIP which is, contractually, pegged to that which would be expected from a ‘leading’ company within the sector and the test applied by Mr Britton on the basis of the following exchange (Day 19/94):
MR JUSTICE CONSTABLE: Can I just ask a question therefore which has a slightly broader application. When you answer questions about Good Industry Practice, and you answered the question then using the word "typical" --
A. Mm.
MR JUSTICE CONSTABLE: -- when looking at what you mean by "Good Industry Practice", do you mean as in fact is generally or typically done by the industry, or do you imbue with the word "good" any objective nature to mean something that, even if, in fact, quite a lot of people don't in fact do it, it would nevertheless be something good for them to do?
A. No --
MR JUSTICE CONSTABLE: I think that's a bit of a lawyers' question.
A. I think that latter interpretation implies that you're expecting people to go further, and I'm not -- that's not how I'm using the term. I'm using the term in terms of what can be expected if you employ a large systems integrator or a large development house to develop software.
The distinction between what a ‘large systems integrator or large development house’ and a ‘leading company’ was not explored further, and it is not obvious whether the distinction, in the present case, means much. Notwithstanding, when considering Mr Britton’s evidence in context, I have been acute to the possible application of a slightly less demanding obligation when he has considered the question of his views on compliance with GIP.
By way of generality, TCS is correct that, to the extent that DBS’s case equates the existence of defects in the software without more to a failure to adhere to GIP, either in design or testing, this would not be correct. This was confirmed by Dr Hunt, in cross-examination, whose evidence I accept in this regard (Day 19/138 -140):
Q. … Software almost invariably has defects?
A. Yes.
Q. Ideally, you try and minimise the number of defects in a system by testing them?
A. Well, you try and design them out as well. So you ideally try to drive them out throughout the whole software development life-cycle, and testing is the final chance to get rid of them.
Q. Yes, and the various stages of testing?
A. Yes.
Q. In the real world, you're unlikely to catch all defects that way?
A. Yes, that's correct.
Q. And there are a number of reasons for that, but one is that there are some defects that only arise in pretty obscure circumstances that you might not think to test?
A. Yes, that's true.
Q. And that can include some serious defects, by which I mean defects with serious consequences?
A. Yes, there's a difference between -- yeah, serious consequences may arise from things that you couldn't possibly have foreseen, that's absolutely true.
…
Q. Now, you agree, I think -- well, in fact, I know, because you've said so, the presence of defects in a live environment is not in itself evidence of a failure by a contractor to develop using Good Industry Practice?
A. That's correct.
Q. And neither is it in itself evidence of a failure by either party to test properly?
A. No, it's -- it's -- defects will always get through.
This broadly accorded with the evidence given by the experts jointly in their statement that ‘the simple existence of defects or problems in a design is not in itself evidence of a failure to meet Good Industry Practice, but that poor practice makes it likely there will be more such problems in more areas of the system’.
This was also accepted, specifically in relation to the delivery of the portals, by Ms Keenaghan (a DBS Project Manager at the time) in cross examination (Day 12/103).
- 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