Tata Consultancy Services Ltd v Disclosure and Barring Service

Hearing dates: 12, 16, 17, 18, 19, 23, 24, 25, 26, 30, 31 October, 1, 2, 6, 7, 8, 9, 13, 14, 21, 22, 23, 27 28, 29 November, 12, 13 14 December 2023

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 14:00 on Friday 17 th May 2024.

CONTENTS

A. INTRODUCTION

The Disclosure and Barring Service (‘DBS’) is a non-departmental public body. It was formed in 2012 through the merger of the Criminal Records Bureau and Independent Safeguarding Authority. Its stated aim is to help employers make safer recruitment decisions each year by processing and issuing DBS checks for England, Wales, the Channel Islands and the Isle of Man. It also maintains the Adults' and Children's Barred Lists, making decisions as to whether an individual should be included on one or both of these lists and barred from engaging in regulated activity. Tata Consultancy Services Limited (‘TCS’) is a company supplying business process outsourcing and IT services. By an Agreement (‘the Agreement’) dated 4 December 2012, TCS was retained by DBS to take over the manually intensive business-as-usual (‘BAU’) Disclosure and Barring processes (referred to as ‘R0’ in the Agreement) from the incumbent supplier, Capita, whilst building a new system to modernise DBS' processes and replace its previous paper-based processes with digital ones in parallel (the new ‘R1’ software). The Agreement expired through effluxion of time in 2020.

The modernisation project did not go well. There were immediate challenges with transition, leading to delay and revision of Milestones. The responsibility for delays up to November 2015 is not in dispute. By early 2016, the parties had agreed new Go-Live dates for the different parts of the R1 software: R1 Barring on 15 September 2016, R1 Disclosure (‘R1-D’) on 28 November 2016; and R1 Basics on 1 January 2017. Ultimately, R1 Barring and Basics (referred to compendiously below as ‘R1-B&B’) went live together on 7 September 2017. DBS contend that, upon going live, it suffered from serious defects.

R1-D was removed from the scope of the Agreement by what DBS contends was a lawful Partial Termination on 19 September 2018, an act TCS contends was in fact an unlawful repudiatory breach, albeit one which was not accepted. Responsibility for the delays lies at the heart of TCS's claim and a large part of DBS's counterclaim: TCS contends that its attempts to progress and Go-Live with the modernised systems were frustrated by DBS through mismanagement of its IT hosting provider, Hewlett Packard Enterprises (‘HPE’; later known as DXC), and later by the (strategic) decision to abandon part of the modernisation project, a decision it says was made but hidden from it for many months. By contrast, DBS contends that the availability of technical infrastructure and conduct of HPE did not cause any critical delay. Instead, it says the true cause of delay was that TCS' software was not ready to be deployed on the infrastructure. The delivery dates were missed, DBS contends, due to problems with TCS' own development and testing of the software.

TCS's loss said to be caused by DBS's breaches of the Agreement is pleaded in the sum of £110,229.124, together with a claim for £14,373,099 claimed as an underpayment of Volume Based Service Charges. DBS counterclaims for losses arising from the delays and defects in the pleaded sum of £108,705,984, although certain of these claims were abandoned prior to or at trial.

The Factual Witnesses

TCS called 12 witnesses of fact, 9 of whom gave live evidence. DBS called 22 witnesses of fact, 16 of whom gave live evidence. I do not set out an individual assessment of each factual witness. As would be entirely understandable in relation to events some five to seven years ago, most witnesses' recollections were relatively vague and generalised when unprompted by contemporaneous written material. At times, of course, the answers of some witnesses were coloured by that individual's own perception of where responsibilities lay for the problems which the project faced, and the evident lack of trust which existed between the two companies by the late stages of the relationship. Happily, however, I did not find any of the factual witnesses evasive or obtuse, and considered all were generally attempting to provide the Court with genuine assistance. Where appropriate in the context of specific issues, I identify where I have accepted, or...