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

The contractually agreed Predicted Volumes figure for Basics in Service Year 4 was originally 1,000,000, but DBS’s case is that figure was subject to later contractual amendment whereby it was revised to 320,374. In response to an RFI raised by TCS as to how and when such amendment was alleged to have been made, DBS responded as follows:

TCS contends that the issue was not the subject of any further particulars and was not addressed at all in DBS’s witness evidence. It says that it is for DBS to establish that the contractually agreed Predicted Volumes were amended as alleged and that, in the absence of evidence on the point, it cannot do so.

DBS contends the change to the predicted transaction volume for Basic Disclosure in SY4 (1 April 2017 – 31 March 2017) can be seen from : ‘Sheet H.2 Cell [D9] in VW1- H {C3/9/1}, Cell E21 of the Method Tab {F/3286/1}; {B2/7/14}’.

I cannot from these documents find the agreement DBS alleges. The first document referred to is a non-contemporaneous document created by DBS’ expert. The second document [F/3286] is a spreadsheet created in 2018. It is correct that at Cell E21 in the two tabs marked ‘TCS Method’ and ‘DBS Method’ there can be seen the number 320,374. There is a comment for each cell which states: ‘Reset as per Clause 2.8.6’. This could suggest that at this time the parties were aligned. Interestingly, this number appears to have been ‘hard’ inserted into the spreadsheet rather than the result of cross-reference to other parts of the spreadsheet (like other predicted documents). The spreadsheet appears to be a TCS document. It was provided to Ms Graves of DBS. Ms Graves was called to give evidence by DBS, but gave no evidence about any such agreement even though her evidence did touch on matters relating to the methodology of varying the transaction charges. The third document referred to by DBS [B2/7/14] is an exhibit to the second witness statement of Ms Graves. Page 14 of this document is referenced at paragraph 7 of her evidence which states that ‘The enclosure to that email (at pages 9-14) explains DBS's interpretation in more detail, and also includes details of the amounts which DBS considered would be due to TCS, including in respect of the Update Service for Service Year 5.’ It does not provide any evidence relating to an agreement (or absence of agreement) related to predicted volumes. In fact page 14 contains an extract from what appears to be a document stating that it is without prejudice and subject to contract.

Mr Croall had no instructions on why Ms Graves gave no relevant evidence. There is therefore no factual evidence at all called by DBS explaining the meaning of the document, or the fact of any agreement it is said to represent. Equally importantly, the individuals named in the document as the author (Subramanian Sankaranarayanan) and the person who last modified the document in 2019 (Kamala C L) both gave witness statements for TCS and were available for questioning on this matter: neither was questioned and the substance of DBS’ case – that this document evidences an underlying agreement – was not put to them.

Whilst it might be that the documents referenced in submissions by DBS were capable of substantiating its case about an amendment, they are not so clear on their face that the fact of such an agreement is inescapable (or even prima facie). Factual evidence from a relevant witness is needed to explain the content of the two contemporaneous documents relied upon; alternatively, DBS could have put its case as to the import of the documents to the relevant TCS witnesses and it did not do so. In these circumstances I do not find, on balance of convenience, that the agreement alleged has been established.