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

It is clear that in neither of its responses was TCS suggesting that knowledge transfer would not take place, but rather that planning in detail at that point would be subject to charges, on the basis that Clause 3.2.7 expressly entitled TCS to charge at rates agreed between the parties in respect of the provision of planning. At that time, on any view, the comment made placed the ball firmly in DBS’s court and, pursuant to Clause 3.1 of Schedule 2-11, it was for the parties together to resolve the comment.

Mr Padannayi’s evidence in cross-examination was consistent with this. He accepted that the sort of knowledge transfer plan ultimately produced in October 2019, after the notice of intended transfer had been given and when DBS had provided their document ‘TCS Exit Services Requirements’ had been issued, could have been produced earlier, but that DBS did not request this. Indeed, it is clear from the comments DBS themselves advanced that they were not at this point seeking the sort of comprehensive training programme ultimately included in v0.18. The comments at 3.2.7 suggested that DBS was anticipating that (for example) the STP record that TCS would in the future undertake an analysis of training needs with DBS and/or replacement contractor i.e. during the transition stage when the replacement contractor had been identified. When questioned about the ability to have produced his comprehensive plan sooner, he accepted that this was technically feasible, but he gave the following evidence, which I accept (Day 5/9):

The reality lies somewhere in the middle of both parties’ positions. The sort of details of how knowledge transfer would take place identifying a minimum level of provision, as suggested in the type of relatively high level comments on v0.9, would be required if the STP was to be regarded as compliant with Schedule 2-11. As accepted by Mr Britton in cross-examination, most of the additional detail in v0.18 in respect of knowledge transfer (and other matters) was not reliant on selection of a replacement contractor. To this extent, I regard the STP as having fallen short of contractual requirements. I reject the submission, however, that the detailed planning undertaken by Mr Padannayi (and alluded to in the first general comment within the v0.9 comment spreadsheet), which was a very significant piece of work detailing 253 sessions and delivery metrics, was something which ought to have been provided as part of the STP, unless DBS were prepared to pay for it pursuant to Clause 3.2.7 at that point. There is no suggestion that DBS responded to TCS in this regard. I also accept Mr Britton’s evidence that it is difficult to see how this level of detailed planning in respect of knowledge transfer (rather than in general principles) would be important to know in advance of the identification of the replacement contractor(s) and nature of the transfer. Finally, it does not follow that TCS should simply have adopted all the suggestions of DBS in respect of Clause 3.2.7 identified in the extract above, even though it gives an indication of the relatively high level information to be provided. I can understand, for example, the reticence of providing an STP which said barely, ‘Delivery of training to suit the needs of DBS’, even if that training was to be on a paid basis.

I conclude, therefore, that v0.9 did not comply with Clause 3.2.7 of Schedule 2-11, although TCS would not have had to produce something significantly different to the high level ‘outline’ identified by DBS’s own comments in relation to 3.2.7 in order for the document to be contractually compliant. That would be significantly less detail that that which TCS was ultimately able to include in v0.18 which followed Mr Padannayi’s comprehensive planning exercise once notice of transfer had been given.