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

In light of the foregoing conclusion, it is not necessary to consider whether TCS has established that all of the delays to the infrastructure workstream were AUTHORITY Cause (on the assumption that it was critical throughout, which I have concluded has not been established). Nevertheless, for the sake of completeness I deal briefly with the three key elements of this part of TCS’s case.

Mr Britton identified 52 individual infrastructure delays, the majority of which are delays set out in Schedule 1 to TCS’s RFI Response dated 5 February 2021. Dr Hunt’s view as set out in her second report was that TCS bore sole responsibility for 5 of these, HPE bore sole responsibility for 10 of them, and that TCS and HPE shared responsibility for 18 of them. Of the rest, Dr Hunt’s view was that either there was no delay caused, because HPE responded within its published turnaround times, or that Dr Hunt was unable to reach a view as to responsibility. TCS submit that Dr Hunt’s view took insufficient account of the practical reality of trying to run a complex, multi-faceted IT project to a timetable.

Although in relation to some specific examples, Dr Hunt revisited her opinion and her conclusion that TCS was wholly or partly responsible, on the whole her evidence remained that to a very large degree delays, such as they were, could not be laid wholly at the door of HPE and that TCS’s own approach contributed to the lack of timely progress. I accept that evidence as a realistic technical analysis of the underlying evidence. A key element of Dr Hunt’s analysis involved consideration of the published timescales in which HPE would respond, a point which Mr Britton largely dismissed as relevant in light of his overarching point that the infrastructure development should have been based wholly on a cloud-based service with minimal turnaround times. This is an unrealistic argument, in light of TCS’s involvement in the procurement exercise which led to CCN 023 through which the move to HPE infrastructure was agreed (and in respect of which TCS were paid £8,044,788). CCN 023 stated:

“The Agreement was awarded on the basis that physical hosting of the CONTACTOR’s solution would be provided via an existing Home Office contract. Prior to contract award, the AUTHORITY was directed by Cabinet Office to market test virtual offerings from the Cloud.

This resulted in award of a contract for hosting to Skyscape. However, because of technical constraints later identified with the Skyscape solution, a further procurement was undertaken and the CONTRACTOR provided support to that procurement exercise to ensure its technical requirements were met.

Consequently, to ensure the deployment of a more resilient infrastructure in support of Release 1 (R1), the AUTHORITY awarded a contract to [HPE] on 29^th August 2014. This solution is a mix of physical and virtual, rather than pure physical, as envisaged by the Agreement.

[…]

The CONTRACTOR shall undertake its roles and responsibilities in relation to implementation and delivery of service management activities and operation of the technical interfaces required to enable hosting of the CONTRACTOR’s System on the Hosting Platform procured by the AUHTORITY from [HPE] in accordance with Application Management responsibility Matrix ver1 and Schedule 2-6 of the Agreement, as amended for the purposes of this CCN.

[…]

IT IS AGREED that with effect from the CCN Effective Date the Agreement shall be amended as set out in this CCN, and save as herein amended, all other terms and conditions of the Agreement inclusive of any previous CCNs shall remain in full force and effect.”

By this CCN, the proper construction of the Agreement is that the HPE infrastructure became part of the Authority System in respect of which TCS had obligations relating to integration under Clause 9.5 of the Agreement.

It these circumstances, Mr Britton’s generalised complaints stemming from the fact it was not a fully-cloud based infrastructure are unsustainable. This is not what TCS were entitled, contractually, to expect. I accept, in broad terms, Dr Hunt’s evidence that, in large part either ‘delays’ were caused by a combination of responsibility or were not true ‘delays’ at all, because they were a reflection of the timescales embedded within the HPE ‘system’, however cumbersome that turned out to be in practice. It is not necessary to analyse each of Mr Britton’s 52 delays item by item, in circumstances where it is clear, on the basis of Dr Hunt’s analysis, that TCS’s own contribution or responsibility for some of the delays which occurred on the infrastructure workstream is sufficient to dispose of TCS’s primary case that all delays on the infrastructure workstream were HPE’s responsibility.

Moreover, for the reasons set out within the contractual analysis above, I have rejected the contention that a delay caused by HPE is, of itself, an ‘AUTHORITY Cause’. It may well be that particular identifiable delays could qualify as ‘AUTHORITY Cause’ if they arose out of a specific failure or failures on the part of HPE to have provided something which DBS was itself contractually responsible for providing to TCS, but the complaints made do not arise out of the pleaded express breaches (Clauses 15.4 and 15.6 of Schedule 2-6). The generalised and unspecific case advanced by TCS, which does not properly tie the complaints made to an express obligation which has been breached by DBS, cannot succeed on liability.

Finally, for the reasons set out in my consideration of Clause 8, it is not open to the Court generally to ‘apportion’ responsibility for delay where, as I find, delays were caused (at least to some material degree) by a combination of TCS and HPE (and assuming that the latter amounted to ‘AUTHORITY Cause’). Even if it were permissible, it is simply not on the material provided, as a matter of fact, possible to carry out such an exercise reliably. No such analysis was pleaded, or advanced by way of expert analysis. There may be many ways of undertaking such an apportionment, and it was not open to TCS to introduce a suggested apportionment methodology in its Closing Submissions for the first time.

In the circumstances, TCS’s claim for relief and/or damages arising out of delays to R1-B&B fails. In principle, DBS would have been entitled to Delay Damages but for its failures to have complied with the provisions of Clause 6. The extent to which it is entitled to damages pursuant to Clause 6.3.2 is considered further below.