HT-2020-000448 - [2024] EWHC 1185 (TCC)

The remainder of DBS’s Counterclaim relates to alleged quality or contractual non-compliance issues by TCS. The categorisation within the Updated Schedule of Loss is as follows:

None of the individual item claimed amounts exceeded £10m. It can be seen that, as grouped within the pleading, however, R1 Basics Portal Quality Issues together exceeded £10m. The DBS Re-Amended Rejoinder did not engage with how (on DBS’s case) the multiple £10m caps applied, other than to plead generically to the construction point, asserting that it limited the liability for each and every claim ‘i.e. cause of action’. It might be implied (given its denial that, on its construction, the cap applied) that DBS was contending that none of its claims were capped and that, notwithstanding its grouping, each item (or, effectively, head of loss) was treated as recoverable individually and below the cap.

The categorisation summarised in the Spigelman Schedule provided by DBS in Closing adopted the following categorisation and quantum (and numbering by reference to row):

I make no criticism whatsoever about a recategorization of the claims within the structure of the Spigelman Schedule. I also emphasise that this comparison of presentations formed no part of my consideration of the proper construction of Clause 52.26, dealt with above. However, the different groupings and application (/non-application) of the cap does neatly demonstrate how DBS’s construction seems unworkable. DBS’s own application of caps is in no way tied to ‘causes of action’. The losses claimed derive from numerous separate alleged breaches, some one off, and some continuing, each of which (when sounding in damages) would give rise to separate causes of action. The workability of the clause, as advanced by DBS, depends upon undefined and somewhat arbitrary grouping of breaches into themes – which could be done in a myriad of different ways, as demonstrated by DBS’s own differing approaches. It gives comfort to my conclusion that, whilst the language of Clause 52.2.6 was generally infelicitous, TCS’s construction is preferable. DBS’s construction leads to the question: how does the cap apply in practice? DBS’s own application(s) of the cap does not appear to present a robust answer to that question.

The ‘Basics Portal’ refers to the functionality that would allow a citizen to apply for a Basics disclosure certificate This was a limited set of screens that was to be provided by TCS as part of the overall Web Portal, which would also include the ‘Barring Portal’. The Barring Portal was intended to support organisations who needed to refer individuals to DBS.

The IT experts agreed that there were improvements that could have been made to the useability of the initial release of the portals. They disagree on whether the need for such improvements represented a failure by TCS.