[2024] EWHC 2329 (TCC)

For those reasons, I decline to give summary judgment, or to strike out the Particulars of Claim, on ground 1 of the application.

JLR urged me to “grasp the nettle” by making a final decision on some of the issues of interpretation discussed above (although presumably in the hope that I would take a more favourable view of its arguments than I have). Kyndryl was more cautious, suggesting that I should simply dispose of the application by reference to the summary judgment test.

The issues on the validity of any assignment depend entirely on the interpretation and application of clause 1.11.7. They were argued in detail, both in writing and orally, and I consider that a future trial judge will be in no better position than I am to resolve them. Given that I prefer Kyndryl’s case on clause 1.11.7, the only reason to defer a final decision would be to allow JLR to adduce any further relevant evidence or to develop its arguments in the light of the facts as may be found at trial. However, as I have said, JLR urged me to make a final decision now; it did not suggest that there might be any disputed factual or contextual issues that might result in a different outcome at trial. I will therefore grasp the nettle to the extent of deciding that, if there was an assignment of any of Kyndryl’s claims by the SPA, then that assignment was not avoided by clause 1.11.7 through lack of consent by JLR. To be clear, however, I grasp it no further, and the prior question of whether there was an assignment will be a matter for further consideration at trial in the light of the evidence at that time.

JLR argues that Kyndryl acquired no right to vary the DCHA because:

Under this ground, JLR also argues that Kyndryl’s secondary case, that IBM was entitled to a variation pursuant to an express or implied term of the DCHA, fails because there was no such term.

It is convenient to address first the debate about uncertainty.

The terms of the Variation Agreement, and the breach of those terms, are pleaded as follows:

The starting point for the law on uncertainty is Viscount Dunedin’s statement in May & Butcher Ltd v R [1934] 2 KB 17 at p21 that “to be a good contract there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement”.

In RTS Flexible Systems v Molkerei Alios Müller [2010] UKSC 14, [2010] 1 WLR 753 at [49], the Supreme Court set out the principles, of which the following are particularly relevant to the present case:

I was also referred to Mamidoil-Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD [2001] EWCA Civ 406, where Rix LJ said at [69]:

JLR argues that the Variation Agreement was uncertain or incomplete in three respects: first, no agreement is pleaded or had been made as to the date on which CCN050 was to come into effect; second, the draft schedule A (services) and schedule C (charges) had not been agreed; third, those schedules differed from the documents produced as part of Project Defender.

Kyndryl explained in its written and oral arguments that its case is that the agreement reached was that CCN050 would “cover all additional services since JLR’s failure to take the steps necessary to migrate to Flex”, i.e. since January 2017. It is fair for JLR to complain that such a term is not pleaded, or not with any clarity, but that complaint could properly and easily be addressed through a request for further information or a short further amendment. It would not be right to dismiss the claim in its entirety until Kyndryl has had an opportunity of responding to such a request.

JLR also disputes that there was in fact any such agreement about the effective date. It points to internal inconsistencies in the documentation about the date: draft CCN050 refers (in exhibit C-1 to schedule C) to charges being applicable from 1 April 2020 and the Project Defender materials refer to charges starting in July 2020. However, that is a dispute that will turn on the evidence at trial about what was in fact agreed; it is plainly unsuitable for summary determination. I note that Kyndryl’s case on the amount payable by JLR appear to assume that the increase in charges contemplated by CCN050 was to take effect retrospectively. However, there is no reason why the parties could not or would not have agreed that.

JLR argues that the charges to be paid under the Variation Agreement were never agreed and that the pleaded entitlement to a “difference in price reflecting the Services Delta” is insufficiently certain to found a contract.

Kyndryl’s position is that the charges could be calculated “mechanically” from the parameters already agreed under the DCHA. It relies on evidence from Ms Karen Berry, who at the relevant time was global account director for IBM with overall responsibility for the agreements and services the subject of the dispute. She explains what had been discussed and agreed between IBM and JLR about pricing. She says that “the price had not been fully calculated in the sense that a precise pounds and pence figure had not been quantified prior to the issue of CCN050”. However, “the process of calculating the price was clear… [it] would involve calculating the additional cost associated with the additional work which IBM had been, and would be, providing through the Services Delta”. She says the calculation of the final price was “simply a mechanical exercise” and not a “negotiation where JLR could choose the price that it would pay”.

In oral argument, Mr Charlton took me at some length through some of the contemporaneous documents referred to by Ms Berry in her statement in an attempt to demonstrate that her account should not be accepted. Mr Pilling criticised that exercise as akin to a cross-examination of Ms Berry in her absence. While I am not bound to accept the written evidence at face value, I agree with Mr Pilling that points of detail of the kind taken by JLR are indeed only suitable for determination after cross-examination rather than on a summary basis. Nothing I was shown persuaded me that there was no real prospect of the trial judge accepting Ms Berry’s evidence. I would also expect that at trial there will be further and more detailed evidence from the parties about their discussions.

In any case, as the Court of Appeal held in Mamidoil, it is not fatal to the enforcement of a contract that the parties may not have reached a complete and express agreement on the price or other terms. In an appropriate case, the court can imply a term, such as a term to pay a reasonable price. Whether this is such a case, and whether there was sufficient agreement between the parties on the essential aspects of the price to make the Variation Agreement workable, are matters for trial.

For completeness, I note that Kyndryl also argues that, if any terms of CCN050 remained uncertain or not agreed, then they could be ascertained through the dispute resolution procedure in schedule G of the DCHA. Paragraph 5.1(f) of the DCHA provides:

JLR argues that the Red Schedule, which recorded the services being provided and to be provided by IBM, was not agreed. It relies on internal inconsistencies in the Particulars of Claim about the date on which the Red Schedule was finalised. It also relies on passages in the statement of Ms Berry where she says that the Red Schedule was only partially agreed by 21 April 2020 and (only) 95% complete by 16 June 2020. Again, I do not see that arguments of that kind are anywhere near sufficient to justify dismissing the contractual claims on grounds of uncertainty. It is not necessary for the parties to have reached express agreement on every detail. Kyndryl’s position is that there was at least substantial agreement on the services to be provided and that any outstanding points were non-substantive. That position is supported by Ms Berry’s evidence, including her account of the “near-daily in-person and telephone meetings” to discuss the Red Schedule. Whether at the end of those meetings there remained essential matters to be agreed sufficient to make the Variation Agreement unworkable is, again, a matter for trial.

JLR argues that schedules A and C attached to the draft CCN050 differ materially from the Red Schedule and the other documents prepared as part of Project Defender. The differences between the Red Schedule and schedule A were identified in a comparison document that accompanied the draft CCN050. Examples of differences in the charges were given in JLR’s witness evidence on the application.

Kyndryl disputes that there were any material differences. It says that they are either minimal or reflect the different context in which the Red Schedule and schedule A were used. It says that the agreement was that CCN050 would reflect the Red Schedule rather than reproduce it precisely.

Any determination of materiality would require the court to consider the differences in the context of the project as a whole, an exercise not suitable for a summary procedure. Moreover, as Kyndryl argues, even if there were material differences, that would not necessarily lead to the conclusion that the parties were not in agreement; an alternative possible conclusion would be that the schedules had been incorrectly drafted and should have been adjusted to reflect the true agreement.

If the Variation Agreement would otherwise be enforceable, JLR argues that it is nevertheless invalid because it was not made in accordance with the contractual change control procedure. The relevant provisions of the DCHA addressing change control are as follows:

JLR relies on Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24, [2019] AC 119 as authority that the court will uphold contractual provisions denying validity to variations or changes that are not agreed in accordance with a contractually mandated process. Rock concerned a licence agreement containing a “no oral modification” clause, that is, a contractual term that the licence agreement could not be amended other than in writing signed on behalf of the parties. The issue before the court was whether that clause rendered contractually ineffective a purported oral agreement to vary the licence. Lord Sumption JSC (with whom the majority of the court agreed) said, at [10], that “the law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation”. He continued, at [15]:

The Variation Agreement was not the subject of any CCN. Therefore, JLR argues, it was contractually ineffective. Indeed, IBM acknowledged that a CCN was a precondition to any variation by preparing and sending CCN050 for acceptance by JLR.

Kyndryl argues that there is a material distinction between the present case and the situation in Rock. By entering into the Variation Agreement, the parties were not agreeing to dispense with the formal change procedure but, rather, were agreeing that it should be operated. JLR’s obligation was to execute a CCN in a form that reflected the changes that had been informally agreed in the Variation Agreement. The draft CCN50 prepared by IBM did reflect those changes and so JLR was contractually bound to accept it.

I was not shown any authorities in which there had been consideration of that distinction, i.e. between, on the one hand, an informal agreement for variation without compliance with the prescribed formalities and, on the other, an informal agreement to take the prescribed formal steps. It might be forcefully argued that, at least in some cases, the distinction is too fine to make any difference and, perhaps, would have the effect of allowing a party to circumvent the decision and reasoning in Rock and negate the purpose of a “no oral modification” or similar clause. That said, absent authority, I do not see why as a matter of principle the court could not in an appropriate case enforce an informal agreement to take a formal step. In Rock, Lord Sumption said that the natural inference from the parties’ failure to observe the formalities was that they had overlooked them rather than that they had agreed to dispense with them (or, if they had the formalities in mind, that they were “courting invalidity”). However, the position in the present case may be different. On Kyndryl’s case, the parties neither overlooked the need for a CCN nor agreed to dispense with one; instead, they recognised the need for a CCN and agreed to prepare and execute one. I cannot say that an argument along those lines is certain to fail or that the rule in Rock is necessarily an answer to it. Moreover, the precise ambit and application of that rule seems to me to raise precisely the kind of question in a developing area of law that ought to be answered by reference to the complete facts at trial, particularly as the rival arguments may depend on the details of what was agreed between the parties.

Kyndryl has another potential answer to the preclusionary rule in Rock based on estoppel. I return to that below when discussing ground 3 of the application.

For those reasons, I consider that Kyndryl has at least a real prospect of proving that there was an enforceable Variation Agreement as pleaded.

As an alternative to its claim under the Variation Agreement, Kyndryl contends that IBM had a right to a variation under the DCHA itself. It pleads that case as follows:

It is unnecessary for present purposes to dwell on the first proposed term, because no claim is made for breach of it. As for the second term, Kyndryl says in its skeleton that it is express “not in the sense that the pleaded words appear in the contract, but in the sense that on the true construction of the contract it is the legal effect of [other] express terms”. I understand that to mean that the pleaded term is said to be derived by a process of interpretation from existing express terms.

Kyndryl relied on the following terms of the DCHA as giving rise to the proposed term:

However, none of those terms says anything at all about the contractual consequences of JLR failing to carry out the (alleged) agreed transformation or migration, or of JLR requesting IBM to provide additional services in relation to the legacy estate. Certainly there is nothing in any of them to suggest that either of those events would trigger a mandatory variation of the DCHA.

As Sir Thomas Bingham MR said in Philips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472, 481, “the courts’ usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract”. I find it impossible to see how that kind of process applied to the existing terms of the DCHA could produce an express term in the form pleaded.

More generally, and contrary to Kyndryl’s position, I cannot see that the DCHA provides for any circumstances (or any circumstances relevant to the present case) in which JLR would be obliged to vary the DCHA by approving a CCN submitted by IBM through the change control process. On the contrary, paragraph 5.1.c.xi of schedule G to the DCHA expressly gives JLR the right to reject a CCN if it wishes. Although that paragraph is expressed in mandatory terms (“[JLR] shall… either reject… require… request… or accept the CCN”), that means, in my view, that JLR is obliged to take one of the specified actions but has a free choice as to which one. The furthest the DCHA goes in imposing any relevant obligation is, in schedule C paragraph 3 above, to “agree to discuss in good faith” any changes to charges via the Change Control Procedure.

It is not surprising that the DCHA does not provide for a mandatory variation if JLR requests additional services. IBM was not obliged to provide additional services beyond those specified in the DCHA. If there was such a request then IBM had a choice: it could have refused to provide the services or it could have proposed a variation through the Change Control Procedure, including any variation to charges. JLR could then have either accepted or rejected the change. If IBM chose to provide additional services without a formal change and without any other agreement, then its right to be paid for those services, if any, would be expected to lie in restitution rather than contract.

Kyndryl relies on the change control dispute resolution procedure in support of its argument that JLR can in principle be obliged to accept a CCN. I refer to that procedure in paragraph 71 above. As I have already said, I do not think that the effect of the procedure is that the court can impose upon the parties contractual terms or changes to which they have not agreed. In particular, IBM cannot be obliged to provide additional services absent agreement, nor can JLR be obliged to pay for them.

Kyndryl argues that there is a relevant comparison to be made with construction contracts where an engineer has the power to certify variations. The cases, including Henry Boot v Alstom [2005] EWCA Civ 813, [2005] 1 WLR 3850 and Grove v S&T [2018] EWHC 123, [2018] BLR 173 show that the court can decide the true value of a certificate and if appropriate open it up. However, that is a different situation from the present where Kyndryl is seeking (in this part of the case) to impose on JLR a variation that JLR has not accepted.

As for the implication of the proposed term, the principles are well known and were set out in Marks & Spencer plc v BNP Paribas Securities Services [2015] UKSC 72; 2016 AC 742. For present purposes, I focus on the requirements that a term can only be implied if it is necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it, or so obvious as to go without saying.

JLR argues that the proposed term is unnecessary. In summary, if JLR was obliged to migrate its systems, as Kyndryl alleges, but failed to do so, then there were other contractual rights and remedies available to IBM. First, IBM could claim damages for breach of that obligation. Second, since IBM was not obliged to provide services outside those specified in CCN025, it could have refused to continue supporting legacy systems. Third, if JLR requested additional services and IBM was prepared to provide them, then any required change to the contract could be effected through the change control procedure (and JLR adds that the implication of the proposed term would be inconsistent with that procedure).

Kyndryl responds that the parties should not be thrown into a position where one has to claim damages against the other, and it would be more sensible and practical, and also necessary, to imply the proposed term. It says that the argument that IBM could have refused to provide services outside the contract until JLR agreed a variation fails to take any account of the realities of a long-term IT contract and does not reflect the way in which any commercial party in a long-term business relationship would be expect to behave, particularly where critical systems were involved. It says that the existence of the change control procedure does not mean that there cannot also be an implied term providing that a change should be agreed if certain conditions are satisfied.

I do not consider this to be an adequate answer to JLR’s argument on necessity. In a large, long-term IT contract it is not unusual for requirements to change and for the customer to request service changes. That is what the change control procedure is for. I appreciate that IBM may have been reluctant for commercial or relationship reasons to take too firm a line on what services it was obliged to provide or to press its customer for another formal change. However, as a contractual matter, IBM was entitled to refuse to provide additional services until a change had been agreed. That being so, the contract was fully efficacious without the need for the additional proposed term.

Kyndryl relies on Davy Offshore and Davy Offshore v Emerald Field (1991) 55 BLR 1, in which Judge Forbes QC held (pages 61, 62) that an engineer or employer who has a permissive power to order a variation may be required to exercise it if the contractor would otherwise be unable to perform the contract or where the contract would not otherwise work. I do not agree that that has any application to the present case. First, JLR did not have a power to order variations, rather it had the right to accept or reject CCNs proposed by IBM. Second, there is no question of the contract being unworkable or incapable of performance. As I have already said, IBM could have refused to provide additional services unless and until a formal change was agreed.

Kyndryl argues that the question of implication should not be decided now because it would be informed by the circumstances in which CCN025 came to be negotiated, and they were not fully in evidence. However, it did not identify any particular circumstances, beyond those discussed above, that might make the proposed term necessary.

JLR also argues that the term should not be implied because it is incapable of clear expression. For completeness, I should say that, if I had regarded the term as necessary or obvious, then I would not have regarded that further objection as sufficient in itself to reject the claim summarily.

I conclude that Kyndryl has no real prospect of establishing that there was an express or implied term of the DCHA as pleaded in paragraph 15.2 of the Particulars of Claim.

In the alternative to its primary case that IBM had a contractual right to a variation, Kyndryl pleads, at paragraph 46 of the Particulars of Claim, estoppels in the following terms:

“…[JLR] is estopped by convention or representation or promissory estoppel from denying that that [IBM] was entitled to a variation of the contract reflecting the cost of the Services Delta because… [JLR] represented to [IBM], expressly and/or by its conduct in the meetings and communications set out above) that if a re-solutioning was not agreed in Project Defender then it would agree a Change which compensated [IBM] for the additional work it had carried out constituting the Services Delta. There was also a convention at all material times between [IBM] and [JLR] to the same effect.”

The conventions, representations and promises are pleaded in paragraphs 29, 31 and 34 and JLR accepts for present purposes that Kyndryl will prove them. JLR argues, however, that that they are not sufficiently clear or unequivocal to found the pleaded estoppels. It argues that they “suffer from the same uncertainty as the Variation [Agreement] and the entitlements to variations: they are all species of agreement-to-agree”.

JLR also argues that the estoppels do not properly address the need for compliance with the contractual change process. In Rock, Lord Sumption said, at [16], that a person could in principle be estopped from relying on non-compliance with formalities as a reason to invalidate a variation, but “the scope of estoppel cannot be so broad as to destroy the whole advantage of certainty for which the parties stipulated… [a]t the very least, (i) there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality; and (ii) something more would be required for this purpose than the informal promise itself”.

As is apparent from the way they are framed, JLR’s complaints about the uncertainty of the estoppels overlap significantly with those already discussed above about whether the Variation Agreement is unenforceable for uncertainty or as an agreement to agree. The same conduct and communications are relied on by Kyndryl both to prove the Variation Agreement and, in the alternative, to prove the estoppels. As I see it, contract-by-conduct and estoppel are presented as different legal analyses of the same facts, either one leading to the conclusion that JLR was obliged to execute a CCN. In those circumstances, I do not think that it would be right to entertain an application for strike-out or summary judgment on the estoppel case as an issue separate from the contractual case, even if there might be some difference in the applicable test. Unless JLR can dispose summarily of both the contract and estoppel cases, the matter will anyway proceed to trial. As Bacon J said in the passage quoted at paragraph 21 above, summary determination of an issue is not appropriate if it would have no consequences except that there would be one fewer issue for trial.

I have already held that Kyndryl has a real prospect of success on its primary case to enforce the Variation Agreement. That will go to trial; and Kyndryl should therefore be permitted to pursue its alternative case on estoppel on the same facts.

In reaching that decision, I take into account that the test for proving an estoppel is not quite the same as that for proving the terms of a contract. As Lord Denning MR explained in Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 (page 61), once a contract is made, it is the duty of the court to give effect to it if it possibly can, and it does so by resolving ambiguities, no matter how difficult that may be. “But when a man is estopped, he has not agreed to anything. Quite the reverse. He is stopped from telling the truth. He should not be stopped on an ambiguity. To work an estoppel, the representation must be clear and equivocal.” It is therefore possible, as JLR argues, that, even if the Variation Agreement is enforceable, the estoppel case could still fail for lack of certainty (although it is hard to see in that case why the estoppel case would be relevant). However, in order to draw that distinction for the purposes of a summary determination, I would need to be persuaded that there are particular, clearly identified, aspects in which the estoppel case is defective or objectionable, over and the above the complaints about the uncertainty in the Variation Agreement that I have already discussed. None was identified by JLR in its written argument or oral arguments.

Kyndryl’s unjust enrichment claim is pleaded at paragraph 50 of the Particulars of Claim:

Kyndryl seeks to introduce the underlined words by amendment in order to pursue an unjust enrichment claim based on the principle of free acceptance. That principle is set out in Goff & Jones on Unjust Enrichment, 10th edition, paragraph 17–03 as follows:

JLR consents to that amendment and does not seek summary dismissal of the unjust enrichment claim insofar as it is based on free acceptance. However, insofar as the claim is also based on requests by JLR for additional services, JLR objects that no requests have been pleaded and none was made.

In response, Kyndryl applies to amend the Legacy Environment Claim to introduce the following paragraphs:

JLR opposes those amendments. It argues that they are inadequate, and do not answer its objection, because they do not properly particularise the requests, contrary to the requirements of CPR 16.4(1)(a), 16PD7 paragraphs 7.4 and 7.5, and the overriding objective. It says that Kyndryl should at least identify when the alleged requests were made, by whom, and in what terms. There is force to this complaint. Kyndryl says that its case is that there was a consistent course of conduct giving rise to the requests, and that to plead every individual request would be burdensome and unnecessary. But in my view, although the amendments set out the general nature of the case, JLR is at least entitled to know whether Kyndryl relies on any specific requests or whether its case is confined to an implication from a course of conduct. If the former, then JLR is entitled to particulars of the requests; if the latter, it is entitled to confirmation that the case is limited in that way and to an explanation of how the implication nevertheless arises. To say only that Kyndryl will rely on the course of conduct over many years and on the entirety of interactions between the parties is not satisfactory.

I am not persuaded, however, that JLR’s criticisms of the existing pleading and the proposed amendments, are such that it would be right to refuse permission to amend and to dismiss the claim summarily now, as JLR asks. As JLR accepted in argument, this is a pure pleading point—whether there were in fact requests for additional services sufficient to give rise to an unjust enrichment claim is an evidential matter for trial. I therefore have in mind what Tugendhat J said in Kim v Park [2011] EWHC 1781 (QB) at [40]:

I am fortified in my view that that is the correct approach in the present case by the consideration that Kyndryl’s unjust enrichment claim will proceed to trial in any event on the basis of free acceptance, so the court will in any event have to examine the parties’ conduct in order to decide whether JLR was unjustly enriched by accepting services provided by IBM outside the contract.

JLR objects to the amendments on the further ground that they are inconsistent with the existing pleading. It says that the existing case (at paragraphs 1.1, 9.3, 23.1, 23.2 and appendix 3 of the Particulars of Claim) is that IBM suffered loss by failing to achieve expected savings on the migration to Flex, whereas the proposed amendments advance the case that IBM incurred additional costs by performing additional requested services. I do not think that that objection takes matters any further for present purposes. There is no reason in principle why Kyndryl could not pursue both claims together or in the alternative.

I will therefore permit the amendments to paragraphs 42A, 42B, 69A and 69B. JLR may make a request for further information, if so advised, and is at liberty to seek further appropriate relief if it considers that the request has not been properly answered or that the claims remain insufficiently particularised.

Clause 1.11.5 of the DCHA provides:

JLR’s position when the application was issued was that all Kyndryl’s claims were barred by that clause because the relevant causes of action arose, or Kyndryl (or IBM) was aware or ought reasonable to have been aware of the breach, before 20 July 2020, three years before proceedings were issued. However, at the hearing, JLR confined its application to the claim under the DCHA, that is, the claim for breach of the express or implied term pleaded in paragraph 15.2 of the Particulars of Claim. Since I have decided that that claim has no real prospect of success, the question of limitation does not arise, but I consider it for completeness.

In paragraph 45 of the Particulars of Claim, Kyndryl pleads that JLR breached the DCHA by failing “to execute CCN050 or to pay the sums due in respect of the Services Delta”. That cause of action could not arise until the draft CCN050 was presented to JLR for approval, which was after 20 July 2020. Paragraph 49 of the Particulars of Claim pleads a further unspecified breach of the DCHA “which entitled IBM to a variation”. It was initially unclear to me whether that paragraph was asserting a different and possibly earlier breach from the one in paragraph 45. In oral argument, however, Kyndryl explained that paragraph 49 was addressed to the possibility that the draft CCN050 might have incorrectly recorded the parties’ agreement, but that JLR nevertheless had an obligation to execute a corrected change notice. The breach would also occur after 20 July 2020, since, again, JLR could not be obliged to execute any change notice until IBM had presented one. It follows that time bar under clause 1.11.5 is not in itself an answer to the pleaded claims under the DCHA.

Kyndryl has no real prospect of proving that there was an express or implied term of the DCHA that, if JLR did not carry out the transformation and migration project and instead requested that IBM provide additional services to host and maintain the legacy estate, IBM would be entitled to a variation of the DCHA requiring JLR to pay IBM for that additional work. I therefore grant summary judgment to JLR on that part of ground 2 of the application and dismiss Kyndryl’s claim for breach of that alleged term of the DCHA.

In all other respects, JLR’s application for summary judgment and to strike out the claim fails.

I grant Kyndryl permission to amend its Particulars of Claim to introduce paragraphs 42A, 42B, 69A and 69B in the form provided to me.

I will hear the parties on the form of the order consequential on this judgment.