Comment: Suppliers can use arm of the law to hit back at delays

Where delay is caused by the other party it is in your interests to issue sensibly drafted relief notices, says Pinsent Mason's Seddon. Picture: Contributed

Agilisys Limited was engaged by technology contractor CGI IT UK Limited in September 2015 to perform a sub-contract as part of a broader digital transformation programme being delivered by CGI for Edinburgh City Council. Under the sub-contract, Agilisys was responsible for replacing three finance systems with a new single system, and delivering a new online platform giving citizens access to the council’s services and to transact online with the council.

The projects suffered from delays, and in March 2017 Agilisys terminated its sub-contract upon the basis that it accepted what it saw as CGI’s repudiatory breaches of the sub-contract. A party is entitled to terminate a contract and sue for damages if the other party to the contract commits a sufficiently fundamental breach or breaches of the agreement between them.

A preliminary hearing heard arguments relating to the causes of the project delays, which were disputed and whether Agilisys was entitled to relief from delay.

In his opinion on the preliminary issues, Lord Bannatyne criticised the arguments put forward by CGI and its witnesses about the cause for delays, for which CGI blamed Agilisys. Lord Bannatyne said that “contemporaneous documentation” was “the best evidence” to assess whether the delays lay with Agilisys and ruled that CGI had failed to provide any contemporaneous evidence to support its claims.

CGI said its lack of contemporaneous evidence was due to its partnership approach when working with Agilisys, because it did not “attribute and document fault”, and was “interested in moving ahead with the contract”. Lord Bannatyne found this submission “wholly unconvincing”.

He said: “If CGI were genuinely being hampered by failures on the part of Agilisys to fulfil its obligations I would have expected to see a consistent picture of such issues being raised with Agilisys in the contemporaneous documentation. CGI is a very large commercial organisation and I cannot accept it would have acted in the way advanced by its witnesses.”

CGI relied on retrospective testimonies from witnesses to support its case. Lord Bannatyne said many of CGI’s witnesses were unreliable. In contrast, Agilisys’ witnesses were “satisfactory”, whose evidence was credible and reliable.

The judge criticised the expert CGI had relied upon as giving “one-sided” evidence. He said the expert had either not sufficiently considered, or misunderstood, CGI’s obligations under the sub-contract, and switched his position on one issue after realising it undermined his position on others. Agilisys’ chosen expert was described as “a most impressive witness who gave her evidence in a careful and measured fashion”.

Lord Bannatyne analysed the circumstances surrounding the relief notices that were in dispute and CGI’s and Agilisys’ respective obligations. He concluded in each case that CGI had breached its obligations to Agilisys under the sub-contract, and that there had been no breach or contribution to the breach by Agilisys.

The judge also found that the breaches by CGI caused, or were reasonably likely to cause Agilisys to fail to achieve the milestones set in the project implementation plan by the effective date.

The ruling highlights that where there is delay and this has been caused by the other party, it is always in your interests to issue sensibly drafted relief notices. If you do this and do it well, the courts will uphold the notices in the absence of contemporaneous evidence to the contrary. The Court of Session will consider at a later date whether Agilisys was legally entitled to terminate its contract with CGI.

- Clive Seddon, partner and specialist in IT and telecommunications at Pinsent Masons