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

STP v0.9 identified TCS’s proposed approach:

It then included information about Document Types, TCS’s ‘Document Strategy’ (essentially where and how documents were stored), the information which would be captured on the Master Document List, how documentation would be transferred (if it was not already in the possession of the Authority) and how, if relevant, documents would be destroyed.

There were a number of comments on the Clause 3.2.1 provision. I do not reproduce them all here. DBS’s central criticism advanced in its Written Closing Submissions was that the STP did not contain proposals, but rather statements of future intent. On the basis that TCS indicated that ‘TCS’s PMO already maintains a list of up to date assured and shared Documentation’, it contended that a comprehensive proposal should have included TCS identifying this documentation specifically.

This criticism is not justified on the basis of TCS’s contractual requirements. The STP was to provide ‘proposals for the identification and transfer of documentation…’. The very reference to identification makes clear that the proposal itself was not required to identify the documentation which would be transferred. Moreover, it is plain that DBS itself did not at the time think that the STP was deficient because it did not contain the document master list. The comment and response within the v0.9 spreadsheet relevant to this particular complaint is set out below:

The suggestion that the list would be subject to due diligence and updating as part of the service transfer itself was entirely reasonable, and in accordance with TCS’s obligations. The substance of this was agreed, to the extent relevant, by Ms Wooller in cross-examination (Day 14/81):

The consequence of this is that DBS’s complaint is really limited to the fact that the TCS response was not, potentially, brought forward to a further version of the STP, as fairly accepted by Ms Wooller in the following exchange (Day 14/82):

I reject the submission that a failure to have provided the actual list of documents to DBS prior to the initiation of service transfer and the necessary due diligence to be undertaken at that time constitutes a breach of Clause 3.2.1 of Schedule 2-11. Although it may have been better for the clarifications provided within the TCS responses to have made their way into the next revision, I consider that, in the particular respect complained of, v0.9 STP taken with the comments and responses was sufficient to comply substantively with Clause 3.2.1 of Schedule 2-11. No loss is claimed, in any event, on the basis that a (valid) clarification was included only in the spreadsheet and not in the STP itself.

It is not clear (whether from the pleadings, factual or expert evidence) what particular complaint arising from Clause 3.10 is advanced. The only comment within the v0.9 comment spreadsheet relates to how workarounds in place at the point of transfer will be identified, documented and provided. TCS indicated that this would be covered as part of the work under 3.2.2 (considered above). I do not consider that DBS have established any breach by TCS in respect of 3.10 of Schedule 2-11.