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

TCS had a number of contractual obligations relating to redaction:

It is common ground that the Snowbound redaction pen did not work properly: TCS put positively to Dr Hunt that “the redaction pen wasn’t working properly” (Day19/178). As explained by Dr Hunt, this issue appears to have occurred because of a defect in Snowbound which meant that if certain characters, such as ‘£’, appeared in a document the document would not be properly saved after redaction. After various problems had emerged during SIT and UAT, which had seemingly been solved, they re-emerged after Go-Live. In July 2018, TCS indicated that the pen should no longer be used. Mr Kumar of TCS informed DBS:

This refers to TCS’s solution, which was to use a filled rectangle to cover text that needed to be redacted. Dr Hunt noted in her First Report, ‘Mr Britton and I observed that it is not possible to set the default colour to black so way and then rotated, for example because it is a landscape oriented page, the rectangle does not rotate leaving the redacted text exposed.’ Further, I accept Mr Sheahan’s evidence that a user could copy and paste the obscured text into a different programme which would expose it.

During cross-examination of Dr Hunt, TCS implied that the Snowbound manual made clear that ‘Redaction annotations are only considered redactions when they are burned in and saved as an image format file such as TIFF format’. In its Written Closing Submissions, TCS advanced the case the workaround which required the user to annotate a document with a blacked out rectangle and then ‘burn in’ the annotation by saving the document as a TIFF meant that TCS complied with its contractual obligation to product redaction functionality. I do not agree. I accept DBS’s submission, instead, that it is unreal to suggest that a method of redaction which would require each user to change the colour of default rectangle, place a rectangle over each intended redaction, save each document as a tiff image, and then convert each tiff image back to a pdf document could be a method of ‘redaction’ as envisaged by paragraph 2.21.8.18 to Schedule 2-2. The failure of the redaction pen and clunky workaround therefore amounted to breaches of the Agreement by TCS. Contrary to Clause 2.21.8.18 to Schedule 2-2, the Solution did not enable DBS to redact information, and contrary to Clauses1.2.4.2(a)(viii) and 1.2.4.2(a)(ix) to Schedule 3, DBS was not able to create bundles using redacted documents. As a matter of contractual analysis, it is irrelevant whether the root problem lay with Snowbound or the way it interacted with the rest of the system or whether TCS took reasonable care to test Snowbound properly when proposing it.

I also accept as obvious that the inability to use the as-intended redaction functionality made the process of redacting and bundling less efficient, to some extent, than it would have been had the redaction pen worked properly.