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

The factual evidence underlying the claim for non-manpower costs was given by Mr Banerjee and Ms Lalitha, neither of whom were called for cross-examination. The quantum experts agree that of the non-manpower costs claimed by TCS, £8,661,931 has been incurred and paid. The majority of these costs are costs which are said to have been incurred because R0 was not decommissioned on time, which could only occur once the entirety of R1 was delivered.

The balance of the claimed amount is £62,862. £58,500 of this relates to staff expenses (travel/visa costs) which is calculated on an average cost of £1,500 per person, supported by the unchallenged evidence of Ms Lalitha. I accept her evidence, and that of Mrs Wall who concludes based on her review of the evidence that these costs are likely to have been incurred and the amount is estimated on a reasonable basis. Whilst ‘unverified’ in the sense that the sums have not been tracked back to specific supporting invoices, I consider these sums should be included within the claim (particularly in circumstances where I have rejected the use of all in ‘rates’ for staff that would have included such additional costs). The remaining £4,362 relates to a small portion of the hardware and software renewal sums which both experts include in the estimates of sums reasonably incurred. I consider that the sum ought to be included in the overall assessment of non-manpower costs (which therefore totals £8,724,712), which claim spans the same 3 periods as considered in relation to the manpower costs claim, dealt with in the previous section.

The vast majority of the costs claimed (£7,137,646) relate to Vodafone costs. Vodafone provided network and connectivity services to TCS. Mr Banerjee explained, and I accept, that Vodafone hosted and managed the data centre, which hosted all of the servers operating for the Project to run the legacy R0 applications, and delivered network and connectivity for the legacy R0 system between the data centres and (i) the local network connection from two floors of TCS’s office premises; and (ii) public service networks where the data was consumed (e.g. the Police National Network). The claimed Vodafone services were specific to the legacy R0 estate which would have been replaced by the R1 Disclosure system – the same connections were not required once R1 Disclosure was live. Vodafone provided services to TCS for R0 support and R1 support but the services I refer to only relate to R0 support; in the absence of a delay to R1 Disclosure Go-Live these services would not have been needed. After Service Transfer on 27 March 2020, DBS took over the premises and the Vodafone contract was novated to them, so they continued to use the Vodafone services but TCS were invoiced for the full month until 31 March 2020.

There were, in addition, numerous other hardware and software renewal costs of much lower sums, aggregating to approximately £800,000 which represented extensions of fixed termed contracts which had to be renewed because R0 was not decommissioned. DBS correctly point out that, if the first extension date would have been reached without R0 being decommissioned due to delay for which DBS is not liable, the extension would have been required in any event (and the same applies to any further extensions).

On the basis of my analysis of delays as set out above, (a) TCS has established an entitlement to loss and expense for 98 days, and (b) but for the wrongful de-scoping, TCS would have delivered R1-D by 19 September 2019. It is usual that claims for prolongation costs are calculated by references to the expenses incurred during the period of relevant critical delay. However, in the circumstances of the present case, I consider that the fairest method of analysis which gives effect to the factual findings above, and takes DBS’s point about the timing of renewals into account, is that I should assess TCS’s entitlement by allowing all non-manpower costs incurred after 98 days prior to 19 September 2018, i.e. after 13 June 2018. I therefore allow all of the sums claimed for the months of July 2019 to the end, together with 17/30 of the sum claimed for June 2019 (£206,733). That comes to £1,615,841 plus £117,148.70 (Footnote: ⁴), making £1,732,989.70.