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

The case advanced by TCS, as it had developed by Closing Submissions, relied largely, if not wholly, on failures by HPE which TCS did not say had themselves been caused by any particular failure on the part of DBS itself (in, for example, failing to co-ordinate or manage HPE), but either because (a) the infrastructure and service provided by HPE were systemically inadequate and/or (b) the way in which HPE carried out its obligations (to DBS) was inadequate. TCS argues that both types of act/omission by HPE constituted breaches of express or implied obligations upon DBS within the Agreement, or were, in any event, ‘Authority Causes’ for the purposes of Clause 7 of the Agreement. By contrast, DBS contend that failures on the part of HPE do not amount to any breach of contract by DBS and do not, moreover, amount to ‘AUTHORITY Cause’. If DBS is right about this, this is sufficient to dispose of TCS’ R1 Barring and Basics delay claim, which is based entirely on alleged failures on the part of HPE reflecting onto DBS.

Paragraphs 10-15 of the Amended Particulars of Claim summarise what TCS alleges were the services it was required to provide and, equally important in the context of this case, those services which it says it was not required to provide. It relies upon paragraphs 2.33 and 2.34 of Schedule 2-2 of the Agreement. These run to about 10 pages, and TCS contends that their obligations were limited to development and management of application software for the Solution, and did not extend to design and/or providing the technical infrastructure on which the Solution was to be deployed. DBS disputes this, and in light of the requirement upon TCS to specify within the appropriate Service Description how the Technical Infrastructure meets each of the standards and constraints set out in Schedule 2-12 to the Agreement (see Clause 2.1.2.2 of Schedule 2-12), I accept that this does appear to be at least an over simplification of TCS’s role.

TCS also contends that its obligations did not extend to providing systems integration services, ‘such as managing dependencies between the Defendant’s various suppliers, ensuring compatibility between the Solution and the technical architecture, or ensuring that suppliers and stakeholders all performed their responsibilities in accordance with a plan that permitted the project to proceed on schedule’. The nature and extent of each party’s responsibilities to act as ‘systems integrator’ features large in the pleadings, in the factual and expert evidence and indeed in the written and oral openings, but the extent that particular periods of delay as ultimately advanced at trial in fact turned on the precise definition of, or the parties’ respective responsibilities in respect of, ‘systems integration’ was in reality considerably less. Nevertheless, it is a matter I consider further below.

The clauses specifically pleaded at paragraph 25 of the Amended Particulars of Claim and relied upon for establishing express breaches were Clauses 5.1, 5.2 of Schedule 2-6 of the Agreement (in relation to R1-Dand 15.4 and 15.6 of Schedule 2-6 of the Agreement (in relation R1 Barring and Basics).

The relevant parts of Clause 5 and 15 of Schedule 2-6 of the Agreement state: