HT-2020-000448 - [2024] EWHC 2025 (TCC)

Fecha: 01-Ago-2024

DBS’s contended error

The underlying contractual regime in respect of the entitlement to loss and expense in the face of AUTHORITY Cause was that if TCS would not have achieved a Milestone by the Milestone Date in any event (even where its own delays were sub-critical) it would not get relief or compensation for the period during which it would have been in delay in any event (see [57]).

10.

At [258] I found:

“…for the purposes of the Clause 7 analysis, TCS were never going to achieve the R1-D Milestone until between July and September 2018, if one assumes a period of around 9-12 months from Final SIT to Go-Live. (9 months is not an unreasonable planned period: for example, the 4 October 2017 Microsoft update plan showed a period of 9 months from the start of Final SIT to Go-Live; the 12 December 2017; the February 2018 POAP showed a duration for this period 8.5 months; Dr Hunt’s evidence referred to further below suggests 12 months).”

11.

At [346(1)], I found:

“As at 7 September 2017, but for the following delays, TCS would have, with no other interference, achieved the Go-Live Milestone for R1-D within about 1 year (I will assume a Go-Live Date of 7 September 2018, insofar as it may be relevant). The delays accrued to R1-D at this point were driven by preceding R1-B&B delays and were not matters for which TCS is entitled to relief or damages for the reasons set out in relation to R1-B&B”

12.

The one year reflects the upper end of the 9-12 month period referred to in paragraph 258. Whilst completion in 9 months was ‘possible’ using accelerative measures, using 12 months was a conscious acknowledgment that this was the more realistic timeframe. This was also reflected in the one-year period I referred to at paragraph 397.

“On the basis of my analysis of delays as set out above, (a) TCS has established an entitlement to loss and expense for 98 days, and (b) but for the wrongful de-

scoping, TCS would have delivered R1-D by 19 September 2019.”

13.

At [346(4)] I found:

“(4)

14.

In light of my finding at [346(1)], and the proper construction of the Agreement as set out at [57], DBS is correct that this contains an internal inconsistency. My specific finding that the assumed Go-Live Date of 7 September 2018 makes clear the factual basis upon which the legal analysis should follow. It is consistent with the factual findings/observations at both paragraphs 258 and 397.

15.

Based on this factual finding, DBS is correct that the proper application of the contract means that TCS should not be entitled to loss and expense for the period during which it would otherwise have been working to complete the Milestone due to its own prior delays.

16.

As a result, the Judgment should stand corrected. Paragraph 346(4) should properly read:

(4)

For the period from 14 June 2018 to 19 September 2018, TCS has established that the further accrued critical delays (day for day) were caused by ‘AUTHORITY Cause’. This is a period of 3 months and 5 days (98 days). However, for period through to 7 September 2018, TCS would not have, in any event, achieved the Milestone Date and loss and expense is therefore irrecoverable. The relevant period is limited to 12 days from 8 September 2018 to 19 September 2018.”

17.

As a consequence:

(1)

paragraph 378 should then read:

‘Doing the best I can by a pro-rata of the days, the claimed sum for the period 13 June 20188 September to 19 September 2018 would be a total of £1,640,562£119,381.20 (constituting £666,7352£50,279.60 verified costs and £69,101.60£973,8273 unverified as to amount).’

(2)

footnote 2 should be replaced with:

‘The total of the September top line (£125,699) multiplied by 12/30 (number of recoverable days 8 September-19 Sept/total number of days in September)’.

(3)

the first sentence in paragraph 388 should read:

‘In the circumstances, the claim for Period 2 succeeds in the sum of £666,735£50,279.60.’

(4)

paragraph 397 should read (also correcting a typographical error in relation to a reference to 2018 which should be 2019):

‘On the basis of my analysis of delays as set out above, (a) TCS has established an entitlement to loss and expense for 12 98 days, and (b) but for the wrongful de-scoping, TCS would have delivered R1-D by 19 September 2019. It is usual that claims for prolongation costs are calculated by references to the expenses incurred during the period of relevant critical delay. However, in the circumstances of the present case, I consider that the fairest method of analysis which gives effect to the factual findings above, and takes DBS’s point about the timing of renewals into account, is that I should assess TCS’s entitlement by allowing all non-manpower costs incurred after 12 98 days prior to 19 September 20189, i.e. after 13 June7 September 20189. I therefore allow all of the sums claimed for the months of JulyOctober 2019 to the end, together with 1724/30 of the sum claimed for June September 2019 (£206,733£173,831). That comes to £1,615,841£1,083,652 plus £117,148.70 £139,064.80, making £1,732,989.70£1,222,716.80.’

(5)

footnote 4 should read:

‘£173,831 x 24/30’

(6)

Paragraph 821(1) (a) and (b) should read:

‘(a) Manpower costs (R1-D): £666,735.00£50,279.60

(b)

Non-Manpower costs (R1-D): £1,732,989.70£1,222,716.80’

(7)

Paragraph 823 should read:

‘The net sum payable by DBS to TCS is therefore £4,808,752.70£3,682,024.40 (subject to the remaining issue of applicable VAT).’