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

The Updated Schedule of Loss states that these sums are ‘to be assessed, estimated at £15,517,357’. The costs relate to the work undertaken at DBS’s cost to refresh the legacy R0 systems, including making changes to the WAN, switches, virtualisation, internal networks and internet gateway. None of the costs, either external or internal, relate to the only period for which a claim would be valid.

I add that this element of the claim also demonstrates the difficulty with DBS’s approach at trial to paint these costs as ‘delay’ costs rather than costs attributable (as indeed its pleading describes) to non-delivery of R1-D. This is because, as a matter of causation, these costs were in fact incurred in an environment where DBS’s business strategy was to ensure the R0 infrastructure was maintained for a considerable period into the future, allowing it breathing space to find a new supplier and develop its bigger project of ‘disaggregation’ (i.e. to reduce dependence upon a single supplier). Implicit in the claim that these are costs caused by delayed delivery includes the necessary assumption that the same decisions in terms of what technology refresh to implement would have been made in circumstances where R1-D was going to be delivered, but merely delivered late, rather than not delivered at all. It is an entirely false assumption. Completely different decisions may have been made about what ‘investment’ was required in R0 if the only issue was ongoing delay to the delivery, rather than in the situation driven by DBS’s own strategy where R1-D was not to be delivered at all by TCS, and not delivered by anyone else to any foreseeable timetable. The pleading’s description of these costs – as relating to the non-delivery of R1-D – is therefore correct, and the characterisation in submission of these costs as caused by ‘delay’ is wrong. Even if, therefore, DBS is correct that (contrary to the factual reality) one should characterise the period beyond 19 September 2019 as ongoing delay to the delivery of R1-D (because its Partial Termination was legally ineffective), it would not follow that these costs could be characterised as ‘delay’ costs. Such a conclusion would involve a leap of both fact and logic.

This claim fails.