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

It can be seen that users were in fact either satisfied or very happy with most of the portal,but were unhappy with three areas. These were registration, upload/file type restrictions and the third was submit form.

As to the first, ‘user registration’ was not a matter criticised by Dr Hunt. Moreover, the need for any registration as part of the overall business solution required of TCS has now been scrapped by DBS. Dr Hunt also did not criticise the upload limits. In her first report Dr Hunt stated merely that it is common for there to be limits on the size of files to be uploaded to a website (the second reason for user unhappiness), and a reasonable approach would have been for TCS to provide a 10MB limit to start with but to consider extending that if it proved problematic. Dr Hunt also stated, and I accept, that making a change to the website to allow a different limit would have been a relatively small change.

In relation to ‘Review and Submit Form’ (the third red dot), the first issue (in the ‘Experience’ box) was ‘Timeout issues while submitting’, and this aligned with item 10 of Dr Hunt’s Appendix E, regarded as ‘low’ impact. Dr Hunt accepted that there was a ‘very simple fix’ (Day 20/173). The second issue related to saving referrals, which is not a problem that Dr Hunt had encountered or was included in her list of problems. In cross-examination, Dr Hunt said that she was not entirely sure what the complaint was.

Against the background where the actual issues identified by DBS, whether in 2019 and 2020, were in theory capable of easy technical solutions, the issue of a causal link between the breaches established and the decision to ditch the solution altogether and build a new one again arises, as it did for the Basics Portal.

There are, in my judgment, a number of clear indicators within DBS’s 2020 presentation. The first is that in considering the potential for a new solution the ‘Principles’ included, ‘Agile’ and ‘Aligned with the GDS Standard’. Neither of these were requirements imposed on TCS, as found in relation to Basics. Similarly, Slide 21 made clear that ‘as dictated by the DBS Technology Roadmap, the Barring Portal is to be hosted on UK Cloud based infrastructure’: again, this a fundamentally different from the product required from TCS. When considering options, option 1 was ‘Do nothing and fix current incidents’, and option 2 was, ‘review existing offering’, which identified that it would need ‘reverse engineering …due to inaccessibility of current code’.

Whilst it is correct that DBS considered replacing the Barring Portal sooner than 2020, ultimately it is simply not possible to link the easily resolvable and specific useability issues that were in fact the source of contemporaneous complaint (or, indeed, the further items of complaint identified by Dr Hunt) with the decision a number of years later to replace the Barring referral part of the portal (other parts of it are still in place). The principal justification given, fairly, by DBS in its Written Closing Submissions relates back to the same reasons the Basics Portal was replaced, which it is said apply with equal force. ‘In other words,’ DBS contends, ‘it was a significant task to bring the Portal into compliance with DbD Standards and there was no reason to consider that an incremental approach would be cheaper or more efficient’. The claim in respect of the costs to replace the Barring Portal fails for same reasons that the Basics Portal failed: compliance with DbD Standards was not part of TCS’s scope of work. The only loss caused by the specific breaches established in terms of discrete useability problems would be the cost (if any, to DBS) of rectifying those specific issues, which would have been relatively technically straight forward. In addition, as with Basics, whilst the solution in fact built may have covered the same scope as the Barring Portal, it was fundamentally a different solution, in line with DBS’s own broader strategy.

DBS’s Counterclaims in respect of items 9 and 10 in the Updated Schedule of Loss therefore fail.