GB Gas Holdings Ltd v Accenture (UK) Ltd & 3 Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Field |
| Judgment Date | 23 November 2009 |
| Neutral Citation | [2009] EWHC 2966 (Comm) |
| Date | 23 November 2009 |
| Docket Number | Case No: 2008 Folio 397 |
| Court | Queen's Bench Division (Commercial Court) |
[2009] EWHC 2966 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Field
Case No: 2008 Folio 397
Jeffery Onions QC and Sonia Tolaney (instructed by Linklaters LLP) for the Claimant
Geoffrey Vos QC, Joe Smouha QC and Philippa Hopkins (instructed by Freshfields Bruckhaus Deringer LLP) for the Defendants
Hearing dates: 29, 30 June and 2, 6 and 7 July 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgement follows on from the judgement already delivered in these proceedings reported at [2009] EWHC 2734 (Comm) ("the first judgement") and should be read in conjunction therewith.
In addition to the issues determined in the first judgement, Burton J ordered that the following further issues should be tried:
7. Can Centrica (in principle) recover for the cost of Hardware under clause 15.4.3 of the Amended JPA?
8. Does the release in Clause 27.4B(c) of the Amended JPA preclude Centrica from bringing any claim for breach by Accenture of the obligation to specify Hardware pursuant to paragraph 2.1.1 of Schedule 10 to the Amended JPA?
9. Is Centrica entitled to make requests for Hardware after 28 February 2007? If not, is Centrica otherwise entitled to purchase Hardware after 28 February 2007 under the Amended JPA?
10. If Accenture has unreasonably withheld or delayed consent to a request by Centrica for Hardware in breach of paragraph 1.4 of Schedule 10 to the Amended JPA, is Centrica (in principle) entitled to recover the cost of that Hardware as damages for breach, or as reimbursement under paragraphs 5.3 and/or 5.4 of Schedule 3 to the Amended JPA?
The relevant provisions of the Amended JPA (in pertinent part) are:
Recital (D)
Accenture has represented that it has expertise and skill advising on the acquisition of computer hardware and software, systems integration and maintenance, project management and the provision of services envisaged by this Agreement and Centrica has already engaged Accenture to provides (sic) its services in the past. The parties have since discussed and negotiated the implementation of the Jupiter Project and prior to the signature of this Agreement, Accenture has performed services for Centrica in relation to the Jupiter Project under various arrangement letters…
Clause 1.1
"Further Services" means the services specified in Schedule 2.2;
"Services" means: (i) the System Development, Integration and Implementation Services, the Maintenance Services, the Competitive Advantage Services, the Innovation Services, Data Migration Services, Training and any other services provided by Accenture to Centrica under this Agreement prior to 31 March 2006; or (ii) in relation to the period beginning 31 March 2006 shall mean the Further Services where appropriate;
Clause 2.5
[Accenture shall, by integrating the Software and Hardware as part of the System and by developing the System, ensure that the Business Capabilities are met (unless otherwise agreed in accordance with the procedure set out in Clause 3) and are capable of delivering the Benefits. DISCHARGED SAVE FOR WARRANTY.]
Clause 10
Acquisition of Hardware and Software
The Parties shall comply with the procurement guidelines in Schedule 10.
Clause 11
Charges and Payment
11.1 …
11.2 Invoices
The Parties shall comply with the invoicing and payment obligations set out in Schedule 3.
Clause 21 Term and Termination
21.1Term
Subject to the rights of termination contained in this Agreement, the Agreement shall take effect from the Commencement Date and shall continue until 28 February 2007 or such time as the Services (including, for the avoidance of doubt the correction of any Fundamental Defects notified by Centrica pursuant to Clause 15.4.3) are completed, whichever is the later, unless extended by written agreement.
Clause 27.4B Release
(a) ….
(b) Release of Accenture: Centrica and each of its affiliates hereby release Accenture, and each of its respective subsidiaries, divisions, parents and affiliated corporations or partnerships, and each of their directors, officers, shareholders, agents, employees, partners, representatives, attorneys, successors and assigns, from the Released Claims.
(c) Released Claims: For purposes (sic) of this Agreement, "Released Claims" shall mean any and all rights, claims, demands, damages, debts, losses, obligations, liabilities, costs, expenses, actions, rights of action, and causes of action, of any kind or character whatsoever, based on any legal theory whatsoever, including but not limited to tort, contract, misrepresentation, rescission, intentional misconduct, or statute, including claims or potential claims in any way resulting from, arising out of, or in connection with the Agreement, whether known or unknown, suspected or unsuspected, accrued or unaccrued, based upon facts occurring at any time prior to the 31 March 2006 or which hereafter may be claimed to arise out of any action, inaction, event, or matter based upon facts occurring prior to 31 March 2006 and shall for the avoidance of doubt include the following historic disputes (as more particularly described in Appendix 1 to Schedule 3)….
provided, however, that Released Claims shall not include: (i) Accenture's obligations to provide the Services set out in Schedule 2.2, (ii) amounts to be paid by Centrica in accordance with Clause 11.1, (iii) obligations to indemnify set out in Schedule 18, or (iv) any right accruing to Centrica now or in the future to pursue the warranty provisions in Clauses 5.2.2, 7.1.3, 7.1.4 and 15.2 to 15.4 hereof (the "Warranty Provisions"), in relation to a Release or Deliverable under a Release, is expressly reserved.
Schedule 2.2
The Further Services
1 General
Accenture shall provide the following Services to Centrica:
1.1.1 Data Cleansing Services as described in Paragraph 2; and
1.1.2 Maintenance Release Development Services as described in Paragraph 3.
Schedule 3
5.3 Where such costs of Hardware and Third Party Software purchased as part of a Release are less than the projected price for such Hardware and Third Party Software set out in the Statement of Release Requirements for that Release, Centrica shall pay to Accenture 95% of the difference between the projected price and the amount paid in respect of Hardware, to be invoiced on the 28th January 2007 and paid by 28 February 2007. Where such cost of Hardware...
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