![HT-2020-000448 - [2024] EWHC 1185 (TCC)](https://backend.juristeca.com/files/emisores/logo_yJUntHA.png){kind=logo}
Introduction
Introduction
The parties’ positions on delay to the R1 Project are polarised, and may broadly be summarised as follows:
TCS contends the predominant cause of delay to R1-B&B was inadequacy of the technical infrastructure services that DBS procured from HPE: they were immature, unstable and poorly documented; that provisioning, configuring and troubleshooting on infrastructure consistently proceeded at an unpredictable (and thus unplannable) but generally glacial pace. Although its pleaded case maintained that DBS failed to manage HPE adequately so as to resolve these issues, this case was not advanced with any enthusiasm either in examination of witnesses or in submissions. The case essentially rested upon HPE’s failures (either systemic or in execution).
DBS rejects that difficulties with the technical infrastructure were responsible for any of the critical delay to the R1 Project; rather, it contends the delay was caused by problems with the development and testing by TCS of the application software.
Each party brings a financial claim arising out of the delays. TCS brings a claim for relief from liquidated and unliquidated damages, and its own claim for losses said to arise out of the delay, pursuant to Clause 7 of the Agreement. DBS brings its counterclaim for liquidated damages and unliquidated damages, pursuant to Clause 6 of the Agreement. TCS also contends that the Court can, should it need to, apportion responsibility for delay pursuant to Clause 8. DBS denies that Clause 8 is a pleaded issue, and (in any event) that the clause is relevant, or that any rights under the clause have been triggered in any event. I have dealt with the Clause 8 point, above.
Before considering the parties’ respective contentions as to the causes of delay, I set out the context in which the evidence sits following my determinations as to the meaning of the liability and delay related provisions I have set out above:
DBS’s claim for liquidated damages is excluded by reason of its failure to have served a Non-conformance Report at all;
DBS nevertheless has a claim for unliquidated damages (in excess of Delay Damages it would have been entitled to but for its failure to serve a Non-conformance Report) it may prove were caused by Delay as a result of Contractor Default in excess of 6 months;
Delay is caused by CONTRACTOR Default unless TCS establishes that it is entitled to relief pursuant to Clause 7. TCS is entitled to relief irrespective of compliance with any condition precedent;
TCS is entitled to relief from Delay Damages and to recover loss and expense to the extent that it can establish that it would have been able to Achieve the Milestone by its Milestone Date but has failed to do so as a result of an AUTHORITY Cause;
it is therefore necessary for TCS to establish the date by which it would have been able to Achieve the Milestone but for AUTHORITY Cause;
an AUTHORITY Cause requires establishing a breach by DBS of an express or implied obligation (whether by itself, one of its other contractors, or servants or agents) under the Agreement.
- 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