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

It its Closing Submissions, TCS deals first with the suggestion advanced in Oral Opening by DBS that its pleaded claim, for Delay Damages calculated from 28 November 2017 to 19 September 2018, the date of Partial Termination (295 days @ £10,000 per day giving rise to a claim for £2,950,000) was a mistake and that it should be entitled to Delay Damages from November 2016.

DBS’s pleading had expressly averred that [paragraphs 65 and 70]:

This was effectively repeated within DBS’s Written Opening. DBS’s Quantum had been calculated, and assessed by its expert, Mr Hain, in his First Report, to value the claim for general damages calculated from 28 November 2017 by reference to the pleadings.

The underlying documents do, indeed, suggest that the date required following the 2015 revision (linked to CCN041) for R1-Dwas 28 November 2016 rather than 2017 (e.g. the Board presentation referred to at F/626 referred to at footnote 16 of DBS’s Written Opening, TCS’s draft Exception Report dated 21 November 2016).

DBS did not seek to amend its pleadings, and in its Written Closing Submissions expressly maintained its claim for Delay Damages calculated as 295 days from 28 November 2017 to the date of alleged Partial Termination. It did so, curiously, on the basis that Delay Damages were claimed from one year from the ‘Revised Go-Live Date of 28 November 2016’. No explanation was given as to the basis for claiming Delay Damages from a year beyond the 2016 date – e.g. whether the date had gone back by further agreement, or that DBS were unilaterally waiving its entitlement or otherwise. One possible explanation is found, again curiously, in Mr Hain’s Second Report in which he notes the difference between November 2016 (referred to by Mrs Wall, TCS’s forensic accountant) and his use of November 2017, which traces back to the pleadings. He then comments: ‘I am instructed that between 29 June 2016 and 19 December 2016, DBS agreed that TCS would focus on Barring and Basics, with Disclosure to be delivered afterwards. DBS's claim is on the basis of an envisaged Go-Live date of 28 November 2017.’ This would suggest that DBS considered that a year’s slippage was agreed in respect of R1-D.

The case advanced by DBS in its Written Closing Submissions (but not pleaded or opened), however, still asserted that TCS were required to establish a claim for relief from 28 November 2016 to 28 November 2017 in order to obtain relief from Delay Damages, even though damages were only claimed from 28 November 2017.

This does not work. DBS’s claim (pleaded, opened and closed) is for Delay Damages calculated for a period of 295 days starting 28 November 2017. TCS does not need to seek relief in respect of a claim which has not been brought against it.

Clearly, notwithstanding the relevant period for the purposes of obtaining relief, to the extent TCS advances a claim for delay losses, it would have to establish its entitlement for the whole period.