“Selection of EDS by BSkyB will provide a unique World Class Customer Contact centre on time and on budget.”
“We will lead a focused four-week workstream to define and agree the Vision for BSkyB for World Class Customer Service. The resources for this work will require 2 BSkyB and 2 EDS staff. The work needs to start on day one…”
“agree the functional requirements of the key processes and [underlying] sub-processes develop an indicative view of resourcing levels develop the technical functional specification which will include the business class model – including all data items, instances and definitions.”
“Agreed Use Cases (in the form of a Use Case Catalogue) and auto generated functional and technical requirement specification for the runner processes to input to the technical design for the new Contact Centre and [be] passed to the Technology workstream for coding and development.”
“To meet the high demands and ambition of BSkyB’s existing and future business, the technical architecture has been designed with the following requirements in mind: - 100% availability - Massive scalability - Open, modular and flexible architecture - Proven technology” - 100% availability - Massive scalability - Open, modular and flexible architecture - Proven technology”
“that activities will be performed in an iterative and incremental development framework. The workstream phases described below are designed to mark significant deliverables that will provide measurable evidence of progress toward the success of the project. Furthermore, the phases provide a mechanism to limit the commitment required to progress the project and to keep options open to flex the programme to support changes in the business objectives.”
“The transition plan below is based on the information provided in the ITT and our understanding of the current operations and technology. The high level plan below will be refined after further analysis of the current situation and business requirements.”
“For the purposes of this ITT response EDS have concentrated on estimating the size of the software development. Whilst further analysis of the requirement is needed, with BSkyB and EDS working closely together, we have used an approach which provides a high level of comfort. Our approach has been adopted on many previous developments undertaken by EDS, including major travel reservations systems. Based on these projects it is reasonable to expect an estimating accuracy of between plus and minus 5% following detailed evaluation of the requirements. Resource estimation is conducted from a “top down” and “bottom up” approach. Top down estimation involves function point counting together with a high level view of the project development methodology, and application of historical size and productivity data from similar projects, suitably tailored to the new environment and toolset, to generate an estimate of resource. Bottom up resource estimation involves assessment of low level activities to be undertaken during the development lifecycle. Using in-depth knowledge of team capabilities and team sizes help validate the top down approach. Essential to both of these approaches is a formal size measure of the system to be developed. Our estimating process makes use of Function Points and has been independently assessed by the Guild of Function Point Analysts, who approved of our approach. A Function Point is a unit of measure used as an indication of relative size of a software development in terms of the amount of business functionality delivered to the end user. For each discrete logical functional component of the required system the inputs, outputs and entities are counted and weightings applied to establish a function point count. Totalling the function points across all the identified functions then derives the function point count for the system. Schedule estimation then makes use of the function point count and productivity rate estimates to derive manday estimates.”
“EDS is a leader in the design, development and implementation of Information Technology solutions and services to business and government, offering customers a complete range of Systems Integration and Implementation services and guaranteed levels of delivery in a wide variety of industries including media and communications. With more than 120,000 staff operating in 47 different countries, EDS offers an unparalleled global IT infrastructure supporting more than 9,000 customers including many of the world’s leading global organisations. In the UK our operation leads the software and services market.”
“EDS worked with a large international telecommunications company (who also provided digital and cable television) to design and implement a single Contact Centre framework within which Contact Centre Agents carried out their work providing a consistent level of service regardless of the channel used by the customer. The EDS Consortium (including Chordiant for the CRM Package and Forté for Enterprise Applications Interface Layer) delivered efficiencies while implementing scalable architecture and a flexible configuration for future business growth.”
“The overall budget combines the consultancy and expenditures for each workstream, and shows a volume based discount offer which is dependent on EDS being awarded all 4 workstreams as part of our contract with BSkyB. Location-Activities£8,490,803 Location consultancy£1,444,389 Technology Activities£31,035,896 Business Process consultancy£775,980 Design Team consultancy£2,464,000 Program & change consultancy£2,210,577 Transition consultancy£1,763,750 Technology consultancy£6,009,638 Total estimated project costs£54,195,013 ”
“(A) On17 March 2000 , SSSL issued an Invitation to Tender (“Tender”) for the building and implementation of a new world class contact centre for SSSL and the retrospective fitting of environment, culture, process and technology to SSSL’s existing contact centres located at Dunfermline and Livingstone (the “Contact Centres”). (B) The Contractor issued a document dated 31st May, 2000 to SSSL in response to the Tender. (C) Subsequent to the Tender, SSSL decided not currently to proceed with a new contact centre and to proceed only with the re-fitting of the Contact Centres. (D) SSSL wishes to appoint the Contractor and the Contractor wishes to be appointed by SSSL on the terms set out in this Agreement to design, build, manage, implement and integrate the process and technology for the refitting of the Contact Centres.”
“The Contractor warrants to SSSL that it has the knowledge, ability and expertise to carry out and perform all the obligations, duties and responsibilities of the Contractor set out in this Agreement and acknowledges that SSSL relies on the Contractor’s knowledge, ability and expertise in the performance of its obligations under this Agreement.”
“EDS have been selected by SSSL to act as the systems integrator for the SSSL eCRM Programme (forthwith referred to as the ‘programme’). EDS will manage the design process, build and implementation of the eCRM system and act as systems integrator to ensure that separate technological components of the programme are able to work together as an integrated whole to deliver the required benefits to SSSL. The purpose of this document is to define the scope of EDS responsibilities within the programme. Specifically, EDS responsibilities cover Process, Technology and Implementation components, with SSSL being responsible for the other components, namely Location and People & Change. This document is intended to reflect EDS responsibilities. Systems integration covers, people, process and technology (application, data, infrastructure) components, and EDS will work with SSSL and nominated 3rd Parties across these components to successfully deliver the programme. The overall Sky CRM programme will be managed within a defined methodology agreed by all interested parties. EDS will supply appropriate management resource to make this happen.” (2) Within section 1 there were Terms and Abbreviations which included the following passage, “In Scope” being EDSL responsibility and “Out of Scope” being SSSL responsibility: “EDS has been chosen as the Systems Integrator (SI) for the SSSL eCRM project. Business change programmes affect both people and technology. There are 5 key components to any change programme. People and Change, Location - These cover all people related activities including location. Business Processes - These are the business processes to be re-engineered to meet the needs of the new strategic business model. Data - These are the data required to support the new business processes. Applications - These are the applications (software) which are being developed, or will be interfaced to, to support the new business processes, and new data structure. Technical Infrastructure-This includes such things as physical hardware (PC’s, servers etc.) and works (Lan, Wan etc) components required to support new and existing applications. The scope and responsibilities of the Systems Integrator are outlined below: In-Scope: Process and technology including Application development, Data, Infrastructure components. Out-of-scope: People and Change and Location (except management of the overall implementation of these workstreams co-ordinated across the Sky CRM programme).”
“The table below lists the deliverables known at the date of this preliminary specification, which fall within the scope of EDS’s responsibility to deliver. It is understood that there are many other deliverables required of the programme, however, these will be identified, documented, and managed as part of the IPO mechanism. 1. Due dates agree to the consolidated Overall Project Programme, dated24th October 2000 . Deliverables shall be deemed delivered only once the relevant element has been “Accepted” by SSSL in accordance with the provisions of the contract delivery.”
“This document is intended to define the objectives and high level requirements underpinning the redesign of SSSL’s business processes as part of Sky CRM programme (the “Programme”). As such it will form the definition of scope for the process redesign activity. The redesign activity will refine the definition of processes. The overall scope may require modification or enhancement as a result of this redesign activity to ensure an optimum solution. This will be managed through the Programme Office Change Control Process. This document represents current thinking based on our understanding of available information and views.”
“At this point in time, the technical architecture and functional specifications are not fully defined so that it is not possible to define specific service levels. When the functional specifications and technical architecture are completely designed and approved by the project, EDS and Sky will approve a Service Level Agreement Document that details specific measurable performance characteristics of Sky CRM. EDS understands that there do exist KPI limits, which the current CMS must support. The following target performance characteristics which are currently experienced on existing systems, will be required from the SKYCRM solution, in order to match business expectations:…”
“We are both happy to have reached this agreement and are looking forward to agreeing further revised terms for our contract.”
“This note is the offer to EDS with regard to the changing of the CRM program and the relationship between SSSL and EDS on that program. After three meetings with representatives at EDS, both parties agree on the need to renegotiate and redraft the contract between them for SSSL’s call centres. Both parties will strive to renegotiate and agree a new form of contract within the next three months. We both accept that that new agreement will be consistent with the following principles: ● EDS will transfer the role of system integrator to SSSL. SSSL will assume that role effective from the time that an agreed memorandum of understanding is created and signed or verbally agreed between SSSL and EDS. ●EDS has agreed to give up all future claims to profit sharing under the previous contract. This amounts to the sum of£6.7 m profit share plus£0.75m churn bonus. EDS shall also provide a credit of£300k as detailed below. … It is clear that some changes would have to be made to the current commercial contract following this agreement. What follows is the agreed way forward for services provided from the date of this memo, and this is based on the discussions that have been on going with EDS and the conditions SSSL is willing to accept: ●EDS will continue to work with SSSL on the project leaving a minimum of 190 resources on the project at the current rate card for the remainder of 2002. If the resources are not performing or SSSL wishes to remove them for any reason-then if requested EDS will find a replacement for that resource at the same rate card and will be committed to putting acceptable resources in place. … ●The warranties in the existing contract between EDS and SSSL shall only apply to work that has been done until the date of this memo. These warranties will only apply to Phase 1 and work product accepted and in acceptance with SSSL. This means all deliverables accepted so far, including the August, October/November and December milestones that have been accepted and deliverables in these milestones that have been delivered and are currently undergoing acceptance. EDS warrants that appropriately qualified personnel have conducted the services that have been supplied and rendered, prior to the date of this memo, with all due skill and care. The warranty period for these deliverables will be in accordance with the current contract. EDS’ only warranties in respect of its performance of work from now on are that it will be performed with all due skill and care and any other warranty normal and usual in a contract for the provision of services on a time and materials basis where the services are provided under the management and control of the customer and where the service provider is not the system integrator. EDS will not be required to give a system warranty in respect of work performed after the date of this memo. The principles for further arrangements in the revised contract will be: ●SSSL will pay EDS an incentive amount of£500,000.00 when increment 2.3 is delivered provided it is delivered on or before March 31st, 2003. In this instance, ‘delivered’ is taken to mean a fully tested application and associated infrastructure ready to go live. ●Any cost reductions which bring the total EDS labour (to include Lucent and Chordiant labour) cost below the agreed amount of the excess costs estimated to date (currently that amount stands at£15m -to be confirmed after detailed planning has taken place) will be split 70:30 SSSL:EDS up to a maximum payment of£1.5 million to EDS. ●Expenses will remain fixed at a maximum of 12% as per the previous contract. ●If requested by SSSL, where existing EDS subcontracts with Lucent and Chordiant allow, or if EDS receives consent from Lucent and/or Chordiant, then EDS will assign these subcontracts to SSSL.” ● EDS will transfer the role of system integrator to SSSL. SSSL will assume that role effective from the time that an agreed memorandum of understanding is created and signed or verbally agreed between SSSL and EDS. ●EDS has agreed to give up all future claims to profit sharing under the previous contract. This amounts to the sum of£6.7 m profit share plus£0.75m churn bonus. EDS shall also provide a credit of£300k as detailed below. … ●EDS will continue to work with SSSL on the project leaving a minimum of 190 resources on the project at the current rate card for the remainder of 2002. If the resources are not performing or SSSL wishes to remove them for any reason-then if requested EDS will find a replacement for that resource at the same rate card and will be committed to putting acceptable resources in place. … ●The warranties in the existing contract between EDS and SSSL shall only apply to work that has been done until the date of this memo. These warranties will only apply to Phase 1 and work product accepted and in acceptance with SSSL. This means all deliverables accepted so far, including the August, October/November and December milestones that have been accepted and deliverables in these milestones that have been delivered and are currently undergoing acceptance. EDS warrants that appropriately qualified personnel have conducted the services that have been supplied and rendered, prior to the date of this memo, with all due skill and care. The warranty period for these deliverables will be in accordance with the current contract. EDS’ only warranties in respect of its performance of work from now on are that it will be performed with all due skill and care and any other warranty normal and usual in a contract for the provision of services on a time and materials basis where the services are provided under the management and control of the customer and where the service provider is not the system integrator. EDS will not be required to give a system warranty in respect of work performed after the date of this memo. ●SSSL will pay EDS an incentive amount of£500,000.00 when increment 2.3 is delivered provided it is delivered on or before March 31st, 2003. In this instance, ‘delivered’ is taken to mean a fully tested application and associated infrastructure ready to go live. ●Any cost reductions which bring the total EDS labour (to include Lucent and Chordiant labour) cost below the agreed amount of the excess costs estimated to date (currently that amount stands at£15m -to be confirmed after detailed planning has taken place) will be split 70:30 SSSL:EDS up to a maximum payment of£1.5 million to EDS. ●Expenses will remain fixed at a maximum of 12% as per the previous contract. ●If requested by SSSL, where existing EDS subcontracts with Lucent and Chordiant allow, or if EDS receives consent from Lucent and/or Chordiant, then EDS will assign these subcontracts to SSSL.”
“You may have done past courses and other learning which equals an Associate, Bachelor or Master degree but you accumulated that learning in a variety of contexts with no resulting degree outcome. Meeting your needs, Concordia College's online prior learning assessment process may conclude with an accredited degree in 24 hours, in the subject of your prior studies. Your transcripts then credibly document all of your learning.”
“As Head of Department at Concordia College & University, I am writing this academic letter of recommendation to you in respect of our alumnus Joseph Michael Galloway. Mr. Galloway is conferred the degree, rank and academic status Master of Business Administration with a major in International Business effective19 May 1996 upon as a consequence of our widely reputed degree programme, and of our guided academic research into then subjects. During his connection with Concordia College & University, we experienced Mr. Galloway as a conscientious and orderly element who proved the habit of timely and correct study and research to be intrinsic to his person. He successfully completed all requirements of our Board of Examiners within the mutually agreed time limitations. Mr. Galloway demonstrated that he is prepared and fully equipped to add valuable apprenticeship to our institution’s activities by means of talented and profoundly investigated subject treatment. Hence it is our privilege to recommend the academic experience, methodical working and educational assiduity of Joseph Michael Galloway to you since we bear the true conviction that Mr. Galloway shall not cease to expose his capacities as a meaningful acquisition to fitting your purpose.”
“an average programme would be one three-hour class per night per course. So if, for example, in one semester block, I would have three courses, I would have three nights each with one three-hour class per week. So for example, Monday, I might go for three hours, Wednesday I might go for three hours and Thursday, I might go for three hours.”
“As I recall, there was a small commuter flight that went back and forth to St Johns.” and which went“From St Thomas which is the largest island to St John.”
“Where cases turn on the credibility of witnesses it is important to consider the evidence as a whole. As I said in EPI whilst a witness' veracity is challenged successfully by demonstrating that the witness has lied it is important to differentiate between establishing that a witness has lied in respect of a particular point as opposed to whether or not his evidence as a whole is a complete lie ….”
“I apologise for this but the email that I sent this morning verified the wrong spreadsheet. The following sheet gives the correct figures. Sorry for the confusion.”
“Our pricing structure is based on a cost plus mark-up model. EDS’ average day rate plus a mark-up of 37.5% is the model that has [been] offered and has not changed since our initial response. In addition, because of our confidence in our ability to deliver this project on time and on budget, we are also committed to place 32.5% of margin at risk against agreed milestones.”
‘Schedule – please refer to the attachedrate table upon which the costing was arrived at and note Joe’s apology’
“dormant accounts are deactivatedat the end of four months. A dormant account is one which has notbeen logged in to over a four-month period, regardless of whether ornot email has been received in the account during that time. Once anaccount has been deactivated, we cannot retrieve any of theinformation that was formerly stored in it”
“We are aware of one personal email account that Mr Galloway has with Yahoo… Mr Galloway explained to us that he had a number of public profiles set up with Yahoo …. Mr Gallowayexplained that he believed that each of these public profiles had an associated email address but that any mail to/from any of the addresses would be stored in the set of folders to which he gave us access. Our own investigations do not support the suggestion that each public profile has an associated email address, at least currently. We are not therefore currently aware of Mr Galloway having more than one personal Yahoo email account.”
“Leaving aside the language, I was absolutely taken aback by this comment. Whilst I appreciated that Joe Galloway had attempted to be funny, I had no doubt about what he was telling me, which was simply that this was EDS' plan, EDS knew how it was going to work and unless I was in agreement, my views were not wanted. I replied to the effect that I would happily fight him in the car park if that was what he wanted. Joe Galloway replied along the lines of being happy to do so, as long as he could bring his girlfriend, or wife - I cannot remember which – who was apparently some sort of martial arts expert.”
“No, I never said that, nor have I ever said anything like that to a customer.”
“He showed himself to be willing to advance an opinion on anything and everything, irrespective of the limits of his expertise, irrespective of the facts and irrespective of the pleaded issues. He advanced opinions that were not thought through and in many instances were wholly unsubstantiated; his approach to calculations was slapdash; he failed to correct his opinions even when he knew them to be wrong. His evidence was the epitome of what expert evidence should not be.”
“By definition, the claimant is always complaining in circumstances where the intention has not been carried into effect. It is only because of that fact that the claimant can allege that the representation made was false. The difficulty facing many, if not most, claimants, is that their real complaint is that the intention was not carried out. But absent some contractual undertaking to do so, there never was a representation that it would be. The point is succinctly made in Spencer Bower on Actionable Misrepresentation, 4th. edn para 17: ‘What the representee is generally found to complain of is the failure to carry out the intention, which shows that what really induced him to alter his position was his belief that the intention would be carried out. In other words, he relied upon the statement as if it were a promise, not as a representation. His belief that the representor had a present intention to act according to his statement would not have influenced him unless he had also believed that the intention would be carried out.’” ‘What the representee is generally found to complain of is the failure to carry out the intention, which shows that what really induced him to alter his position was his belief that the intention would be carried out. In other words, he relied upon the statement as if it were a promise, not as a representation. His belief that the representor had a present intention to act according to his statement would not have influenced him unless he had also believed that the intention would be carried out.’”
“The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit.”
“a representation may be true without being entirely correct, provided it is substantially correct and the difference between what is represented and what is actually correct would not have been likely to induce a reasonable person in the position of the claimants to enter into the contracts.”
“Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement from being fraudulent, there must, I think, always be an honest belief in its truth.”
“The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made.”
“… a corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”
“It is obvious that, because it is a fictitious person, a company can only act through one or more natural persons and therefore, as the decisions in El Ajou v Dollar Land Holdings Plc and the Meridian case show, in order to determine whether the company is liable in respect of any particular act or omission it is necessary to identify the natural person who represented the company for that particular purpose and who [can] therefore can be regarded as embodying for that purpose what is sometimes called its controlling mind and will. When seeking to identify the person who is to count as the company for the purposes of a substantive rule of law it is necessary to consider the nature and policy of that rule. The essence of fraudulent misrepresentation, so far as is relevant for this case, is making a statement that is known to be untrue intending that the person to whom it is made will rely on it. Liability therefore depends on the conjunction of a false statement and a dishonest state of mind. In a case where it is said that a company has made a fraudulent misrepresentation the first step must be to see whether a false statement has been made by someone who is authorised to speak on the company's behalf. Once that has been established the starting point in deciding whether the company acted dishonestly must be to enquire into the state of mind of the person who made the statement. However, if that person was unaware that the statement was false, it may be necessary to enquire into the state of mind of other persons who directed him to make it or who allowed it to be made.”
“I derive from that case the distinction between a factor which is observed or considered by a plaintiff, or even supports or encourages his decision, and a factor which is sufficiently important to be called a real and substantial part of what induced him to enter into a transaction.”
“The phrase 'assumption of responsibility' can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice.”
“[Voluntary assumption of responsibility] is a convenient phrase but it is clear that it was not intended to be a test for the existence of the duty for, on analysis, it means no more than that [sic] the act of the defendant in making the statement or tendering the advice was voluntary and that the law attributes to it an assumption of responsibility if the statement or advice is inaccurate and is acted upon. It tells us nothing about the circumstances from which such attribution arises.”
“Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in Sutherland Shire Councilv. Heyman (1985) 60 A.L.R. 1 , 43-44, where he said: “It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.”” “It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.””
“It is equally true to say that a sufficient relationship will be held to exist when it is fair, just and reasonable to do so. Because the question of whether a defendant has assumed responsibility is a legal inference to be drawn from his conduct against the background of all the circumstances of the case, it is by no means a simple question of fact. Questions of fairness and policy will enter into the decision and it may be more useful to try to identify these questions than simply to bandy terms like "assumption of responsibility" and "fair, just and reasonable"”
“..it seems to me that the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome. This is not to disparage the value of and need for a test of liability in tortious negligence, which any law of tort must propound if it is not to become a morass of single instances. But it does in my opinion concentrate attention on the detailed circumstances of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole.”
“…It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless. 'The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it': see Sutherland Shire Council v Heyman.”
“Le Dain J., delivering the judgment of the Supreme Court of Canada, conducted a comprehensive and most impressive survey of the relevant English and Canadian authorities on the liability of solicitors to their clients for negligence, in contract and in tort, in the course of which he paid a generous tribute to the analysis of Oliver J. in the Midland BankTrust Co.case. His conclusions are set out in a series of propositions at pp. 521-522; but his general conclusion was to the same effect as that reached by Oliver J. He said, at p. 522: “A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute the tort. Subject to this qualification, where concurrent liability in tort and contract exists the plaintiff has the right to assert the cause of action that appears to be the most advantageous to him in respect of any particular legal consequence.”
“My own belief is that, in the present context, the common law is not antipathetic to concurrent liability, and that there is no sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy. The result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him, subject only to ascertaining whether the tortious duty is so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded.”
“But, for present purposes more important, in the instant case liability can, and in my opinion should, be founded squarely on the principle established in Hedley Byrne itself, from which it follows that an assumption of responsibility coupled with the concomitant reliance may give rise to a tortious duty of care irrespective of whether there is a contractual relationship between the parties, and in consequence, unless his contract precludes him from doing so, the plaintiff, who has available to him concurrent remedies in contract and tort, may choose that remedy which appears to him to be the most advantageous.”
“I wish however to add that I strongly suspect that the situation which arises in the present case is most unusual; and that in many cases in which a contractual chain comparable to that in the present case is constructed it may well prove to be inconsistent with an assumption of responsibility which has the effect of, so to speak, short circuiting the contractual structure so put in place by the parties. It cannot therefore be inferred from the present case that other sub-agents will be held directly liable to the agent's principal in tort. Let me take the analogy of the common case of an ordinary building contract, under which main contractors contract with the building owner for the construction of the relevant building, and the main contractor sub-contracts with sub-contractors or suppliers (often nominated by the building owner) for the performance of work or the supply of materials in accordance with standards and subject to terms established in the sub-contract. I put on one side cases in which the subcontractor causes physical damage to property of the building owner, where the claim does not depend on an assumption of responsibility by the sub-contractor to the building owner; though the sub-contractor may be protected from liability by a contractual exemption clause authorised by the building owner. But if the sub-contracted work or materials do not in the result conform to the required standard, it will not ordinarily be open to the building owner to sue the sub-contractor or supplier direct under the Hedley Byrneprinciple, claiming damages from him on the basis that he has been negligent in relation to the performance of his functions. For there is generally no assumption of responsibility by the sub-contractor or supplier direct to the building owner, the parties having so structured their relationship that it is inconsistent with any such assumption of responsibility. This was the conclusion of the Court of Appeal in SimaanGeneral Contracting Co. v. Pilkington Glass Ltd. (No. 2) [1988] Q.B. 758. As Bingham L.J. put it, at p. 781: "I do not, however, see any basis on which [the nominated suppliers] could be said to have assumed a direct responsibility for the quality of the goods to [the building owners]: such a responsibility is, I think, inconsistent with the structure of the contract the parties have chosen to make."” … Here however I can see no inconsistency between the assumption of responsibility by the managing agents to the indirect Names, and that which arises under the sub-agency agreement between the managing agents and the members' agents, whether viewed in isolation or as part of the contractual chain stretching back to and so including the indirect Names. For these reasons, I can see no reason why the indirect Names should not be free to pursue their remedy against the managing agents in tort under the Hedley Byrneprinciple.” "I do not, however, see any basis on which [the nominated suppliers] could be said to have assumed a direct responsibility for the quality of the goods to [the building owners]: such a responsibility is, I think, inconsistent with the structure of the contract the parties have chosen to make."”
“…where the parties have come together against a contractual structure which provides for compensation in the event of a failure of one of the parties involved the court will be slow to superimpose an added duty of care beyond that which was in the contemplation of the parties at the time that they came together. I acknowledge at once the distinction, namely, where obligations are founded in contract they depend on the agreement made and the objective intention demonstrated by that agreement whereas the existence of a duty in tort may not have such a definitive datum point. However, I believe that in order to determine whether a duty arises in tort it is necessary to consider the circumstances in which the parties came together in the initial stages at which time it should be considered what obligations, if any, were assumed by the one in favour of the other and what reliance was placed by the other on the first. The obligations do not, however, remain fixed subject only to specific variations as in the case of contract. I would not exclude a change in the relationship affecting the existence or nature of a duty of care in tort.”
“The central question which arises here is: against the contractual structure of the contract into which the contractor was prepared to enter with the employer, can it be said that it looked to the engineer by way of reliance for the proper execution of the latter's duties under the contract in extension of the rights which would accrue to it under the contract against the employer? In other words, although the parties were brought into close proximity in relation to the contract, was it envisaged that a failure to carry out his duties under the contract by the engineer would foreseeably cause any loss to the contractor which was not properly recoverable by the contractor under its rights against the employer under the contract?”
“Nevertheless, in agreement with Purchas L.J., it seems to me to be neither just nor reasonable in the circumstances of the contractual terms existing between the contractor and the employer (absent the disclaimer clause) to impose a duty of care on the engineer to the contractor in respect of the matters alleged in the statement of claim, namely, the alleged failure to certify and final rejection of the contractor's claims. So to do would be to impose, in my judgment, a duty which would cut across and be inconsistent with the structure of relationships created by the contracts, into which the parties had entered, including in particular the machinery for settling disputes.”
“In my opinion the following question is worthy of being posed. Given the contractual structure between the contractor and the employer, can it be fairly said that it was ever within the contemplation of the contractor that, outside the contract, it could pursue a remedy against the engineer?”
“Thus the relevance of the disclaimer is to negative one of the essential elements for the existence of the duty of care. It negatives the assumption of responsibility for the statement. It implicitly tells the recipient of the representation that if he chooses to rely upon it he must realise that the maker is not accepting responsibility for the accuracy of the representation. The disclaimer is part of the factual situation which the court has to take into account in deciding whether or not the defendants owed a duty of care to the plaintiff. Put another way, the question is whether the plaintiff was entitled to treat the representation as one for which the defendants were accepting responsibility.”
“The judge avoided this conclusion by approaching the disclaimer as if it were a contractual exclusion. On such an approach it would need to be strictly construed and the argument was available that it did not as such cover an oral statement. But that is not, in my judgment, the right approach. It is not an exclusion to be construed. The right approach, as is made clear in Hedley Byrne, is to treat the existence of the disclaimer as one of the facts relevant to answering the question whether there had been an assumption of responsibility by the defendants for the relevant statement.”
“what impact does the existence of the contract have on the claim in tort? In my judgment, on ordinary principles the contract is only relevant to the claim in tort in so far as it does, on its true construction in accordance with the proper law of the contract, have the effect of excluding or restricting the tortious claim.”
“The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often longforgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need that may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of the negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save in so far as they are reflected and given effect in that document.”
“This CONTRACT comprises the entire agreement between the PARTIES, as detailed in the various Articles and Annexures and there are not any agreements, understandings, promises or conditions, oral or written, expressed or implied, concerning the subject matter which are not merged into this CONTRACT and superseded hereby. This CONTRACT may be amended in the future only in writing executed by the PARTIES.”
“Deepak submit that this article excludes liability for neither misrepresentation nor collateral warranties, and that in any event any such exclusion would be limited by the phrase “concerning the subject matter”
“Clause 11(1) provides that the written contract constitutes “the entire agreement and understanding between the parties with respect to all matters therein referred to”
“Unless it is manifestly made clear that a purchaser has agreed only to have a remedy for breach of warranty I am not disposed to think that a contractual term said to have this effect by a roundabout route does indeed do so. In other words, if a clause is to have the effect of excluding or reducing remedies for damaging untrue statements then the party seeking that protection cannot be mealy-mouthed in his clause. He must bring it home that he is limiting liability for falsehoods he may have told.” “Clause 11(1) provides that the written contract constitutes “the entire agreement and understanding between the parties with respect to all matters therein referred to”
“This Agreement together with the Ancillary Agreements constitutes the entire agreement between the Parties and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement except as specifically set forth herein and none of the Parties has relied or is relying on any other information, discussion or understanding in entering into and completing the transactions contemplated in this Agreement and the Ancillary Agreements … Nothing in this Section 14.10 shall affect any Party's liability for fraud or fraudulent misrepresentation.”
“ While recognising that this clause specifically excludes fraud from the scope of its operation, Mr. Vos submitted that it clearly was intended to prevent the purchaser from seeking relief of any kind based on innocent or negligent misrepresentations. He argued that either MN relied on representations or it did not. It made no sense to say that MN did not rely on representations if they were made innocently or negligently, but did rely on representations if they were made fraudulently. I can see the logic of that submission, but in my view it fails to have sufficient regard to the parties' intentions in including this provision in the agreement. The first two sentences are in my view intended to make it clear that the agreement contains the definitive statement of the parties' rights and liabilities arising out of the negotiations. Although the second sentence is worded in terms of an absence of any representations etc. outside the agreement itself, it does in fact operate as a contractual renunciation of the right to rely on anything said or done in the course of the negotiations as giving rise to a ground of complaint, or indeed for any other purpose. To that extent the clause does alter the parties' positions, but it is subject to the exception in the final sentence which makes it clear that they did not intend to give up the right to hold each other liable for fraud or fraudulent misrepresentations made before entering into the agreement. For these reasons I am satisfied that Section 14.10 does not prevent MN from holding Freightliner liable for the fraud of Mr. Ellis.”
“There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement except as specifically set forth herein and none of the Parties has relied or is relying on any other information, discussion or understanding in entering into and completing the transactions contemplated in this Agreement and the Ancillary Agreements …”
“Although the second sentence is worded in terms of an absence of any representations etc. outside the agreement itself, it does in fact operate as a contractual renunciation of the right to rely on anything said or done in the course of the negotiations as giving rise to a ground of complaint, or indeed for any other purpose.”
“There is no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis for the transaction, whether it be the case or not.”
“If it were designed to exclude liability for misrepresentation it would, I think, have to [be] couched in different terms, for example, a clause acknowledging that the parties had not relied on any representations in entering into the contract.”
“The Contractor warrants to SSSL that it has the knowledge, ability and expertise to carry out and perform all obligations, duties and responsibilities of the Contractor set out in this Agreement and acknowledges that SSSL relies on the Contractor’s knowledge, ability and expertise in the performance of its obligations under this Agreement.”
“Save as provided in Clause 20.1, neither party shall have any liability to the other party in respect of (i) any consequential or indirect loss or (ii) loss of profits, revenue, business, goodwill and/or anticipated savings.”
“Subject to Clauses 20.1, 20.2, 20.3, 20.4 and 20.6, the total aggregate liability of each party at the time of the relevant claim (other than SSSL's obligations under Clause 10) and its officers, employees and agents to the other party arising out of any act, omission, event or circumstances relating to this Agreement or with respect to the matters contemplated herein shall in no circumstances exceed: (a) in respect of the Contractor, the sum of all amounts paid to the Contractor under Clause 10 at the time of the relevant claim (the "Liability Cap"); and…”
“Subject to Clauses 20.5.3, 20.6 and 20.7, the Liability Cap for the Term shall not at any time be less than£6 million (six million pounds), nor greater than£30 million (thirty million pounds).”
“On a true construction of the Contract, clause 20 is effective to limit to£30 million EDSL's liability to SSSL in respect of breach of contract and negligent misrepresentation, but is not effective to limit: (i) EDSL's liability to SSSL for deceit; (ii) any liability of EDSC; or (iii) any liability to BSkyB Ltd.”
“The terms set out in this letter have been agreed between us, subject to the approval of our respective managements, in full and final settlement of: (a) all known claims which SSSL may have against EDS or which EDS may have against SSSL and/or British Sky Broadcasting Group Plc for any breach of the Prime Contract as of the date of both parties signing this letter; and (b) all unknown claims which SSSL may have against EDS or which EDS may have against SSSL and/or British Sky Broadcasting Group Plc for any breach of the Prime Contract during the period up to and including17 June 2001 .” (a) all known claims which SSSL may have against EDS or which EDS may have against SSSL and/or British Sky Broadcasting Group Plc for any breach of the Prime Contract as of the date of both parties signing this letter; and (b) all unknown claims which SSSL may have against EDS or which EDS may have against SSSL and/or British Sky Broadcasting Group Plc for any breach of the Prime Contract during the period up to and including17 June 2001 .”
“The circumstances in which this general release was given are typical. General releases are often entered into when parties are settling a dispute which has arisen between them, or when a relationship between them, such as employment or partnership, has come to an end. They want to wipe the slate clean. Likewise, the problem which has arisen in this case is typical. The problem concerns a claim which subsequently came to light but whose existence was not known or suspected by either party at the time the release was given.”
“on a fair construction of this document I cannot conclude that the parties intended to provide for the release of rights and the surrender of claims which they could never have had in contemplation at all. If the parties had sought to achieve so extravagant a result they should in my opinion have used language which left no room for doubt and which might at least have alerted [the Applicant] to the true effect of what (on that hypothesis) he was agreeing.”
“To my mind it makes no commercial sense for the Agreement to impose conditions as to the giving of notice of a breach of warranty and as to the commencement of proceedings for such breach and limiting the maximum liability if Bottin was intended to be left free of those conditions and those time limits and the limits on liability by treating the same warranties as representations. Mr. Glick was, in my judgment, plainly right to submit that the obvious commercial purpose in the conditions and limits was to enable the Warrantors to know that they would not be sued on the warranties if no notice was served in time and proceedings were not brought in time and that, if they were sued, there was a quantified limit to their liability. That purpose would be frustrated if the claim for breach of warranty could be regarded as a claim in misrepresentation. The final words of cl. 3(a) would permit a claim for rescission of the Agreement. That gives sufficient effect to those words, without having to give them the meaning contended for by Mr. Wardell which flouts commercial good sense.”
“…for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.”
“After three meetings with representatives at EDS, both parties agree on the need to renegotiate and redraft the contract between them for SSSL's call centres. Both parties will strive to renegotiate and agree a new form of contract within the next three months. We both accept that that new agreement will be consistent with the following principles:”
“After three meetings with representatives at EDS, both parties agree on the need to renegotiate and redraft the contract between them for SSSL's call centres. Both parties will strive to renegotiate and agree a new form of contract within the next three months. We both accept that that new agreement will be consistent with the following principles:….” agreement will be consistent with the following principles:….”
“What follows is the agreed way forward for services provided from the date of this memo, and this is based on the discussions that have been on going with EDS and the conditions SSSL is willing to accept…”
“We are both happy to have reached this agreement and are looking forward to agreeing further revised terms for our contract.”
“we agreed that EDS would behave from today as though the new deal was signed and he would communicate that to Greg H”
“It is clear that some changes would have to be made to the current commercial contract following this agreement.What follows is the proposed way forward based on the discussions that have been on going with EDS and the conditions BSkyB is willing to accept:…”
“After three meetings with representatives of EDS, both parties agree on the need to renegotiate and redraft the contract between them for SSSL’s call centres. Both parties will strive to renegotiate and agree a new form of contract within the next three months. We both accept that that new agreement will be consistent with the following principles: …”
“We are both happy to have reached this agreement and are looking forward to agreeing further revised terms for our contract.”
“In my judgment, when experienced business men use the words “subject to contract” in a proposal, they mean more - and must be taken to mean more – than that the acceptance must be in writing. At the lowest, they are guarding themselves against being contractually bound without further action on their part.”
“activity on both sides is easily explained on the basis that they both expected that in due course a formal contract would be agreed which would be ... in general terms in accordance with Fraser Williams’ proposals. Accordingly, although I, like the judge, recognise the risks to both sides of starting a substantial undertaking without a formal contract being in place, I do not reject as commercially improbable the notion that these parties did so.”
“In the end I am unable to share the judge’s conclusion that neither party could contend that, as he put it, the “subject to contract” provision in the proposal was still operative at the time of termination on5 May 1989 .”
“there were important matters left to be discussed and, therefore, there was no basis upon which the subsequent conduct of the parties could be considered as being referable unequivocally.”
“Given the contractual structure between the contractor and the employer, can it be fairly said that it was ever within the contemplation of the contractor that, outside the contract, it could pursue a remedy against the engineer?”
“Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.”
“It is obviously correct, as a matter of common sense, that in order to honestly and properly respond to an ITT, and in particular one which indicates certain desired timescales, it is necessary to: ascertain what work is required to arrive at the client's intended destination; prepare a plan so as to be able to assess whether it is feasible to perform that amount of work in the timescales desired by the client; prepare a resource plan identifying what resources will be required (both in terms of numbers and skill sets) and when, in order to achieve that amount of work in the desired timescale; assess in the light of that resource plan the extent to which one possesses such resources and, if one does, whether suitable resources will be available when required in order to complete the planned work in the planned timescale; and, to the extent that one does not possess the requisite resources, secure commitments from third parties to provide resources, by informing them of your requirement for resources in what type (in terms of skill sets, experience and so on) and when.”
“I wanted to forward some additional to you. We have reviewed the commercials and are prepared to reduce our mark-up percentage from 37.5% to 32.5%. Additionally, we are willing to put 77% of our overall mark-up at risk using the previously agreed milestone schedule. … This new model replaces that which is included in the documents enclosed. Mike, EDS is ready to start this project as of Monday, July 17. We havethe resources reserved for this project;in fact, we have picked up some additional high level resources that you have worked with previously. These folks come with great experience of these types and size of projects. Please let me know if you need anything further.”
“I now recall that Mike Hughes requested that I contact Sky in order to urge the decision process along in the light of the letters being written to Sky by Siebel and the internal politics within Sky. It was in those circumstances that I sent my letter to Richard Freudenstein on5 July 2000 . ”
“Joe Galloway referred to EDS' previous experience of working with over 10,000 organisations. He reiterated that they had the resources and the ability to deliver the system and services we required and to meet the financial and budgetary targets that we had set. I understood this to mean that EDS had confidence in their revised budget and that they had undertaken a proper exercise to identify the resources required and costs involved in carrying out the project (which were reflected in their Response).”
“I recall that Joe Galloway stressed in that presentation the immediate availability of resources to start working on the project. I believe that this would have strengthened my view that EDS had the capability to successfully implement the project.” successfully implement the project.”
“that EDS had the resources reserved to deliver the project in the timescales that they had represented to us. I did not expect the whole team for the entire project to turn up on the first day. That would be absurd and I did not read the email in that way.”
“Given the level of detail in the eCRM ITT a reasonable Systems Integrator would have: i Reserved (or had specific plans for making available at the time of the LoI) key leadership resources and technical and business subject matter experts before the Letter of Intent was signed - the "mission critical" resources to which I earlier refer. At this time EDS knew the technologies that would be involved, knew the business context of the programme (CRM), and should have anticipated the programme management demands of the programme and therefore should have been able to anticipate how many resources were required for the first few months of the project. ii At the LoI, had a detailed resource plan for at least the first month of the project and had identified and secured the resources required for that period, and for the following 3 months identified the resource types required (skills and experience) together with an understanding of where those resources would be found.”
“Selection of EDS by BSkyB will provide a uniqueWorld Class Customer Contact centre on time and on budget.”
“proven expertise in Systems Integration and capability to deliver the solution within the required timescales”. (5) Section 7.2where, under the heading “Costs” and dealing with resource requirements, Sky say that EDS stated that the Business Process and Technology workstreams would last for 9 months. (6) Section 5.4.2 where, under the heading “Estimating”, it was stated that: “For the purpose of this ITT response EDS have concentrated onestimating the size of the software development. Whilst further analysis ofthe requirement is needed, with BSkyB and EDS working closely together,we have used an approach which provides a high level of comfort. Our approach has been adopted on many previous developments undertaken by EDS, including major travel reservations systems. Based on these projects it is reasonable to expect an estimating accuracy of between plus and minus 5% following detailed evaluation of requirements. Resource estimation is conducted from a "top down" and "bottom up" approach. Top down estimation involves function point counting together with a high level view of the project development methodology, and application of historical size and productivity data from similar projects, suitably tailored to the new environment and toolset, to generate an estimate of resource. Bottom up resource estimation involves assessment of low-level activities to be undertaken during the development lifecycle. Using in-depthknowledge of team capabilities and team sizes help to validate the topdown approach. Essential to both these approaches is a formal size measure of the system to be developed. Our estimating process makes use of Function Points and has been independently assessed by the Guild of Function Point Analysts, who approved of our approach. ... Schedule estimation then makes use of the function point count and productivity rate estimates to derive manday estimates.” (7) Section 5.4.3 where, under the heading“Planning Approach and Progress Monitoring”, EDS stated that: “Based on the estimates derived from the function point count a set of schedules defining key activities and elapsed times illustrating how the solution is to be delivered will be developed. Typically three sets of schedules are produced.”
“Our Solution Centre already has the infrastructure and tool-sets in place to support this approach and they will be applied to the BSkyB CRM project.”
“Through our conversations with Mr Hughes, we had indicated that the build-out and construction components that Interdec was composing was a high proportion of the bid that we had in place, some£22m , and Mr Hughes said, 'We should remove those from our area because he would be taking those forward himself.' Now, the reason that they are left complete in the Interdec tab is because we believe this is the appropriate work that needed to be done, and Mr Hughes was going to find, according to Mr Hughes, quote unquote, 'another bucket of money,' that this was going to come from and that we should only consider items we felt absolutely vital to keep in the systems that were appropriate to getting the existing contact centre up and running. Now, this is phase 1 of that discussion with Mr Hughes. Through another phase of discussion with Mr Hughes, this number comes down again, and I don't remember the exact figure, but it is somewhere around£6.7m or£6.8m , as the point that we believe absolutely necessary for us, EDS, to manage through our process.”
“as one puts together a Response to ITT, over time one refines that effort, one takes words out, puts words in, takes - makes an assessment of where one has gotten to from an estimate standpoint, refines that estimate, based on information one expects to have, based on information one gets in … continuing in effort … all the way up to, I would say, 5 or 6 pm on the day …the ITT was due, to further refine our Responses as they went out to the client.”
“don't worry about the as-is processes, we will get you those as soon as you are awarded the business”, which allowed him and the team to “hone down … the amount of effort required … to cut down the man-days of effort required by the use case to prepare overall a figure for delivery, and in doing so, it would cut down the gross number, as I mentioned before, and the man-days of effort required for each one of these.”
“I can say that there was a refinement process that was continuing as we moved closer to delivering the activities that people were thoughtfully processing the information that we had put forward, that on the day of the 30th, when we were preparing the final pieces, the team that put the estimate together was gathered again and asked if they had any revision, thought there was any appropriate changes. That team, on the 30th, said they thought there were appropriate changes to make, those changes were made, and we placed those into our final estimate.”
“Therefore, in my opinion, the expected duration was not based on a proper planning process – in that unanticipated resourcing constraints might have made task durations longer than expected. To the extent that such tasks were on the critical path for the project, this would have impacted the overall timescale.”
“what we did is our beginning premise was that we had 18 months to complete the entire task, nine months to deliver something in the go-live environment. We had our previous experience of delivering applications and we had our previous experience of Thomas Cook and we had previous work that we were carrying on at Cable & Wireless. We had Chordiant Software who had a number of implementations under development already. So we had professional experience telling us what we could and could not do in the timeframe. It was our opinion as we went through that process with our partners and professional expertise that we could deliver a solution in nine months that would represent a go-live in one hall.”
“I believe that one of the key concerns of your team is the ability to deliver within the timeframes allotted, rather than the technology. I would point to 2 recent UK projects that Chordiant has successfully delivered on time and to budget. Our project at Bank One International (in conjunction with EDS) was implemented in 12 weeks and went live exactly on the day specified. Directline, with whom we are currently working on a project, awarded Chordiant the contract in March of this year and will go live in early July. This should give you confidence in our ability to deliver and should you wish to speak with Directline, as our most recent customer, about us I am sure we can arrange for someone to speak with their Group IT Director.”
“There seems to be a view held that, because of the differences in approach, Siebel offers a lower risk solution in terms of implementation time. If BSkyB’s implementation timescales were a few weeks and no customisation of the Siebel applications were required (not likely to be the case) then this view may have some validity. In the case of BSkyB however we are talking about the first phase implementation of 6 months. An implementation timeframe that EDS and Chordiant, as part of the delivery team, are more than comfortable with based on past experience. - Thomas Cook: 4 months - Bank One International: 3 months - Direct Line: 4 months – will go live early July”
“Deliver Fast-Track Contact Centre within five months of the start of the project; Deliver a World-Class Contact Centre within nine months of the start of the project; Migrate the existing call centres within fifteen months of the start of the project.”
“…overall the Project must be regarded as High Risk at this time. The major reasons for the assessment are: - Status of contract negotiations - Lack of precise definition of scope - Shortage of staff - quantity and skill sets - Imposed business critical time scale - Vulnerability due to over dependence on single individual within client organisation - Aspects of technical solution (new/untried software, legacy system interfaces, data migration) Given the relatively immature state of the overall programme plan and the significant risks that have been identified it is recommended that a further review be carried out prior to signing any contract for this work with BSkyB.”
“The project is required to deliver to pre-determined and business critical time scales. However, the scope, both in business and content terms is not yet well defined. The consequence of this is that it is not yet possible to determine whether the project is deliverable in the required timescale. What is clear is that none of the team interviewed believe that a solution can be delivered in Manchester by1 April 2001 that is likely to meet the totality of the anticipated client requirement. Action: EDS must take a proactive approach to defining the scope, concentrating on making maximum use of “out of the box” functionality, phasing delivery to provide minimum business critical solution by1 April 2000 and managing client expectations to achieve this. It is essential that EDS ensure that scope is something that we can confidently deliver in the timescale, and the longer it takes to arrive at this agreed scope the less we shall be able to achieve in the time remaining.”
“I believe the key issue is not budget but timescale. Mile [Mike] Hughes has stated that timescales are critical, but our team has stated that the programme timescales (April delivery) are unachievable - as acknowledged to the red team three weeks ago. My suggested way forward is to identify with the customer a 962. achievable in the timescale, and can be reliably costed prior to contract signature. All the rest can be addressed as options. This was the red team recommendation. Does such a “minimal solution” exist? If you don't succeed in de-scoping the initial contract, the TCV will be such that we have to go to Finance Committee for sign-off, and on present form they would chuck us out.” (2). In an email of16 September 2000 addressed to Joe Galloway, Steve Leonard, Steve Mayhew, Chris Jenkins, Laurence Anderson and Jonathan Malin, Barry Yard wrote: “Joe - At the Red team review your team admitted that the April delivery date could not be met. Since the client does not want to move the deadline the challenge was to descope to a level where we are satisfied that delivery can be achieved.”
“The numbers are stupid!!! If they do not become realistic, this project will not go ahead. I am at a loss to understand how EDS could quote a number around£50million and then have numbers close to double that now appear.”
“ – to agree the critical path for all milestones – to compare this critical path with the Exec Committee expectations – to think out of the box to identify additional opportunities to reduce the expected timeline”
“When I went to Sky on the 12th I looked at the plan that was in place; I talked to my people, told them that they needed to remove the contingency, that we needed to plan for parallel activity, that I was directed by Mr Hughes and his direction for Sky to deliver something in the late July/early August time frame. I've since, when I was putting my witness statement together, noted that Mr Hughes says almost identically the same thing, and that the team needed to act on that the rationale that we had a time boxed delivery of late July/early August to deliver something and that is very straightforward, that is the accurate view of whatever and it was done at the behest of my client, Mike Hughes.”
“We knew that that plan for November had some risks, every plan does and there was a degree of parallelism within that plan already established to arbitrarily bring it back to July. We failed to understand how that could be done.”
“the response of the group to Tony Dean was that we had planned the project for November 2001 and a July 2001 go-live date was not achievable”
“I managed to speak to Tony Dean on Friday about the state of play and told him that I was singularly unimpressed with the way the plan had been chopped for presentation to the client. His line was that it was a marketing/sales ploy for the client, that's all very well but clients latch onto the timescales. I expressed the view that the plan was now high risk as there was no contingency time and that I was not comfortable with Joe's behaviour on Thursday. I told him that I had made you aware of events.”
“1. milestone version of the plan. You will note that this is a revised version from that which we talked about yesterday evening in your office. I have not been involved in the discussion to drag the dates back in so I do not fully understand the rationale. Joe, however, is happy with this timeline.”
“the plan had been chopped for presentation to the client.”
“I am concerned that you may now be given a plan from this session which has not had full input from, nor review by, the original planners. Clearly if our staff have not seen this plan they will not be in a position to comment on its validity.”
“The dates you mentioned today are significantly changed from the last dates indicated to me by both my team and by Dan Barton. (Although, Dan indicated on Friday that dates had come in a little in a session to which neither Andy Waddell nor Scott Mackay were invited - I don't know why!) I'd like to understand what has changed to allow such a change in delivery dates.”
“During the course of the discussions leading up to signature of the Contract, further cost estimates were made which eventually came to form the baseline budget dated21 November 2000 at Schedule 5 of the Contract. The representation made in the baseline budget was that a proper estimate of the costs to be incurred had been made and that such costs amounted to £l9,751,000 for consultancy, before profit was added.”
“EDS Ltd and EDS Corp represented that the Chordiant, Arbor BP and Forte Fusion technology they intended to deploy as the solution to the requirements set out in the ITT was proven technology (in the sense that there was nothing novel or untried about it i.e. EDS Ltd/EDS Corp had used such products together before successfully on similar projects or alternatively that the three products had been successfully integrated together at least once by someone somewhere).”
“Critical to the response is a listing of all products considered to deliver the solution. Specifically, for each product (application or hardware) proposed a list of their proven functionality and details of reference sites where the proposed features are currently in use must be presented.” (2) At 3.5.1.9: “The complete solution will come from more than one supplier in all probability. The response must indicate the ability of the successful partner organisation to manage these disparate technologies into a single solution that creates a seamless customer experience. Clear demonstration that all proposed products within the architecture can and will coexist in the context of BSkyB is necessary as is commentary on how data will be reconciled and managed within the solution.”
“On the basis of what EDS said at the presentation on1 June 2000 and in the Response, it appeared to me that the solution which they proposed (i.e. Chordiant, Forte Fusion and Arbor) was based on proven technology, in the sense that it was not new or untried from their viewpoint either in terms of the individual products or the overall architecture.” “On the basis of what EDS said at the presentation on1 June 2000 and in the Response, it appeared to me that the solution which they proposed (i.e. Chordiant, Forte Fusion and Arbor) was based on proven technology, in the sense that it was not new or untried from their viewpoint either in terms of the individual products or the overall architecture.”
“The Executive Summary in EDS' Response, which I believe that I would have read, refers to using proven leading edge technology, which I would have taken to mean that the technology proposed by EDS was proven both in the sense that EDS had used the technology before and that the overall solution was not previously untried.”
“No-one had ever took the time to say that these products have not been integrated before, so I left the bid process, and as I have said here, I did not go back to this in the same detail as I had in the main document as the technology workstream was not really my area of expertise. But my understanding was these guys had done this before.”
“How will components (existing and new) integrate? Most interfaces will be bespoke”
“As I have already said to you, I suggest that you did not infact and you knew you did not in fact have any reasonable basisfor making that representation, bearing in mind no properevaluation had been done”
“We wanted them to understand that the technology that they were asking for was used on a very regular basis, that we used it on a regular basis, that we had consortium partners in the programme that believed that there was no issue with either the technical ideas or the integration of those technologies, so we wanted them to understand that the technology we were putting forward would work and it would work together.”
“.. .it had powerful methodologies to support programme management, business transformation and change management. It also represented that such methodologies supported the “Customer Centric” approach to business transformation and provided a framework for delivering results. In relation to SDLC, EDS proposed an “iterative and incremental” approach…and its “initial thoughts” were that this would be “within a framework of EDS’ formal Transform methodology”. … From and after the partnership with AA, and as noted at paragraph 38.11, EDS expressed the intention to use AA methodologies as well. The representations made by EDS Ltd in respect of methodologies were limited to the matters expressed in the documents quoted in paragraphs 38.1 to 38.12.”
“Choosing the best development methodology is vital to the delivery of the project within allowed time and cost constraints. Whilst it is anticipated that this selection will take place following discussions with BSkyB's CRM Project Team, our initial thoughts lead us to recommend a rapid application software development process. This will operate through iterations within a framework of EDS' formal Transform methodology. A complementary project management approach, PM 2™ would also be utilised - see section 5.4 of the main document for details. Bringing these tried and trusted approaches to the project will ensure the enterprise can gather rapid momentum following project approval, ensuring timely delivery.” delivery.”
“Whilst it is anticipated that this selection will take place following discussions with BSkyB's CRM Project Team, our initial thoughts lead us to recommend a rapid application software development process. This will operate through iterations within a framework of EDS' formal Transform methodology. A complementary project management approach, PM 2™ would also be utilised.”
“Joe Galloway and Gerard Whelan represented (and John Chan approved and adopted such a representation) that EDS intended to use an SDLC methodology (which was identified as Transform), when in truth, as at the date of selection/Letter of Intent, they did not in fact have such an intention.”
“I have to give Richard my personal assurance that the development team and the testing team have the right skills, experience and quality. Richard has received feedback from his team that although we now have the right leadership we do not still have the quality to execute. Please supply me with the answers to Richard's questions ASAP today as I will be speaking with him again on Monday morning.”
“That, for me, would not have been a step that I would have contemplated, in view of the fact that scope was still evolving through this whole replanning exercise. What I could have said, and believe I am offering to the Court that I would have said, is, "Those people we have, although you may have heard from your teams some concerns, we have looked into it, we are standing by those people. We believe we still have to add people and we want to ensure they are of the right quality." The concept of, "We know exactly how many and when and what locations," would have been a step further than I would have offered to Richard.”
“Those people we have, although you may have heard from your teams some concerns, we have looked into it, we are standing by those people. We believe we still have to add people and we want to ensure they are of the right quality.”
“In terms of staffing and strengthening the development team, I have attached a document that outlines resources that have joined the Chordiant team in May and additional resources that have been identified that can support both Phase 1 and 2 work … I cannot secure any of these additional resources without an agreement to proceed.”
“I understand from our discussions that BSkyB is still expressing concern over EDS' ability to deliver. I do not feel that further meetings, documents or discussions will do anything further to change that view in the short term. The way to build back confidence is to start to deliver the solution. I feel that the commercial position that we have presented enables us to start delivering the solution with little to no risk on the part of BSkyB. The way it is structured means that BSkyB is not paying for the EDS labour unless we actually do deliver. If EDS is unable to deliver, then BSkyB does not pay. … I hope that the information that I have provided on the development and testing resources has been helpful in showing how we have been, and will continue to, strengthen the team. I am pursuing other resources within EDS, but to obtain some of these resources I need to take them from their current engagements. In order to do that, I need an agreement from BSkyB that the programme will continue. Also, it will take a period of time to transition these resources off the work they are currently performing and onto the BSkyB programme. This makes an agreement even more important. In terms of team structure, I have assigned responsibility for all the elements of the programme to my current team. As the programme moves through its life cycle, additional resources will be brought on to support periods of heavier workload or more complex management activities. Responsibilities will also shift amongst the team as the programme progresses to ensure that at all times, the right people are doing the right job. EDS has assumed considerable delivery risk in the way in which our future payments have been structured. This places the onus clearly on EDS to have the best and most capable people to deliver this programme of work. If we do not, we will not get paid.”
“With the introduction of two phases, two teams will be mobilised, managed by Cathy Leleux. Phase 1 led by Jason Campbell – Chordiant, consists of an ‘A’ team with more senior, experienced staff than previously, focussed 100% on the delivery of phase 1, and Phase 2, new manager with a team equipped with the depth and experience required to fully develop and build the complete system. Both teams have sourced the best available individuals worldwide, internally and externally when required. Phase 1 is fully staffed while phase 2 is building as required. Following the resignation of Paul Adelman, the new Billing person will be joining from America w/c 16/7/01.”
“that it was their opinion, for which they had reasonable ground, that the primary cause of the problem had been the bid team's under-estimation of the complexity of the project, and that a significant amount of work had been completed which was of value to the project and would provide the basis for project completion.”
“The major constraint facing the programme is not enough time to achieve all the goals of the programme by the key date. This has led to the need to list and address all key constraints, associated limitations and hence create a new set of programme assumptions moving forward.” “The major constraint facing the programme is not enough time to achieve all the goals of the programme by the key date. This has led to the need to list and address all key constraints, associated limitations and hence create a new set of programme assumptions moving forward.”
“The combination of programme issues, high complexity and significant other technical, organisational, operational, business process and change management issues has led to a slippage on previously agreed key dates”
“Management ●Overall Programme Management incomplete and implemented late. ●Lack of information sharing and consistent approach has led to confusion, mixed direction and unnecessary management friction. ●Key partners in the programme are not ‘in synch’ or being actively managed as a team ●Reporting and roles and responsibilities are unclear. ●Lack of integration of total team has hampered the programme and smart thinking. Technical ●The billing system and linkage with operational finance has proved more problematic than first envisaged leading to delays. ●SDLC assumptions have inappropriate. ●Requirements are not locked down. ●The environment will require extensive levels of testing-the most appropriate testing strategy and associated timelines are not yet agreed.”
“there was a discussion around the extent of the completion of the operational, the IPA requirements to do with billing and I recall that discussion. That went around and around in the meeting room. And then coming out of that, one of the actions was we needed to get clarity on the state of some of these items so that the next time we got together we could be focusing on the plan, not on whether Sky or EDS believed the state of development was in one position or the other.”
“I can't go item by item, line by line and tell you which ones were wrong. What I can tell you is there was concern about this status between ourselves and Sky, that was rectified with a common understanding of the state of that status that was used for the May 18th planning session.”
"The Programme Structure, which relied on heavily paralleled activities, has changed to a slightly paralleled structure with much more structure and management. Replanning effort has heavily involved both Sky and Andersens to ensure all are happy with approach and issues for the plan going forward, this has also led to much improved working relationships and a more integrated team"
“Given the timeframe available to conduct this planning, EDS recognizes that there are a number of assumptions and risks that need to be taken. These risks and assumptions need to be reviewed in concert with schedule and as part of any discussion between B Sky B and EDS on the approach to be taken for programme. These risks and assumptions are identified in Section 5 of the document.”
“Plan to re-plan once system definition is complete to granularise estimates further. It is recognised that as analysis and system definition phases complete, more detailed information will be available to plan the content of each increment, including identification of threads, revised effort estimates and elapsed time.”
“... it wasn't a friendly meeting I don't think. We were clearly in trouble and looking to solve what was potentially anotherbreach of contract”
“My own view -- returning to the facts of the instant case -- is that cl 2 and the common law right to accept a repudiatory breach can exist side by side, but only in circumstances where the contractor displays a clear intention not to be bound by his contract, for example, by walking off the site long before completion (as suggested during the course of argument by Hirst LJ) or, by way of further illustration, failing to comply with plans in a very fundamental way, for example, by not building a third storey when contractually bound to do so. But such cases are far removed from the instant one. On the facts of this case, I, for my part, would be prepared to hold that cl 2 created the only effective way in which Mr Rickwood could determine this agreement. It is difficult to understand why the clause should be there at all if that were not the true position.”
“In my judgment, this cl 2 did impliedly preclude Mr Rickwood from terminating the contract on the facts of the present case otherwise than by the exercise of his rights under cl 2 since the complaints made fell squarely within the scope of cl 2, ie complaints as to the quality of materials and workmanship. However, cl 2 would not have done so in relation to breaches outside the ambit of cl 2, eg. by Mr Ryan walking off the site when the works were still substantially incomplete.”
“The Contract itself contained its own scheme for compensating Amoco for reduced efficiency or performance by reduction in the operating rate for the period of the reduction in efficiency or performance (Appendix 10) and by a breakdown rate reduced to a nil rate after 48 hours. It also contained in Clause 28.1 its own provisions for termination which were effective after a breakdown of sufficient gravity to cause BAO to be unable to perform its obligations under the contract lasting 30 days or a major fault causing a suspension of operations for more than 30 days. Those provisions themselves must in my judgment form part of an appreciation of the benefit the parties were intended to derive from the contract. Thus circumstances otherwise within the scope of the termination provisions but falling short of the precise terms would in my judgment not give rise to the right to terminate at common law for the very reason that the parties agreed when and how such circumstances should have that consequence: see Lockland Builders Ltd v. Rickwood(1995) 46 Con LR 92 (CA). The provisions are ones for the benefit of both parties not just for the benefit of Amoco involving as they do time and notice constraints. For present purposes loosely expressed what I think that comes to is that to justify termination at common law something "worse" or not addressed by those provisions would be required.”
“Notwithstanding Clause 16.1, if a Milestone (with the exception of the first and last Milestones) is not Accepted under Clause 8.2 on the relevant date. the parties have agreed that the Contractor shall not be deemed to be in material breach of the Agreement until three months after the relevant date and the provisions of Clause 11 or Clause 22.2 shall not apply to such delay prior to that date.”
“Termination for Material Breach In the event of any material breach of this Agreement by either party, the other party may give to the party in breach notice specifying the same, requiring its remedy and stating that this Agreement may be terminated if the material breach in question is not remedied in accordance with this Clause 22.2. If the party in receipt of such notice fails to remedy the breach within 30 days of receipt of the notice the party who served the notice may by further notice, forthwith terminate this Agreement, whereupon the provisions of Clauses 22.3 and 22.4 shall apply.”
“It is clear that some changes would have to be made to the current commercial contract following this agreement.”
“First, that the measure of damages where a contract has been induced by fraudulent misrepresentation is reparation for all the actual damage directly flowing from (i.e. caused by) entering into the transaction. … Third, damages for deceit are not limited to those which were reasonably foreseeable. Fourth, the damages recoverable can include consequential loss suffered by reason of having acquired the asset.” loss suffered by reason of having acquired the asset.”
“1. Continue with EDS for phase 1 and phase 2 … 2. Continue with EDS for phase 1 and use A A, Chordiant and Sky resources for phase 2 … 3. Continue with EDS for phase 1, use AA to do technical architecture for phase 2 and then do mini tender for work … 4. Dump EDS now.”
“My recommendation to continue with EDS for phase 1 and phase 2 (subject to performance criteria) is purely based on a commercial position. ie it will be the cheapest and there is currently no clear alternative. It is not based on complete confidence in their ability to deliver, only on a gut instinct that with£14 million at risk and their european ecrm strategy at risk, they will be motivated to deliver. (they don't get paid if they don't deliver) No one is disputing Geoff's technical assessment. ie based on what we have seen to date, he is correct to doubt EDS ability to deliver. All I am saying is that based on that technical assessment, I still think EDS is the best option because we have set up the commercial deal to minimise our risk of this eventuality and I can't give you a clear alternative (and neither can Geoff).”
“Software development consists of making literally thousands of decisions about all the feature-related issues described in the previous section. Uncertainty in a software estimate results from uncertainty in how the decisions will be resolved. As you make a greater percentage of those decisions, you reduce the estimation uncertainty. As a result of this process of resolving decisions, researchers have found that project estimates are subject to predictable amounts of uncertainty at various stages. The Cone of Uncertainty in Figure 4-1 shows how estimates become more accurate as a project progresses.” become more accurate as a project progresses.”
“Siebel as both a product and a company can be difficult and this could represent a threat to desired functionality, timescales and cost”; that “Some parts of Siebel cannot be modified and this could represent an integration or scalability issue” and that “Siebel want their products and processes contained therein, to be recognised as best practice, but this has not been successful with large financial organisations who do not want their own well-defined processes to be changed.”
“Variations in processing path resulting from different input values on distinct occasions are not regarded as giving rise to different logical transaction types. All the entities which could be referenced by all possible processing paths should be counted in the one logical transaction type.”
“It turns out the most significant input to the COCOMO II model is Size. Size is treated as a special cost driver in that it has it an exponential factor, E.”
“Where I believe the evidence is reliable and gives me useful constraints on the number, I have used it and where I believe there is reason not to trust a number or that the number is inappropriate, I have always used the most appropriate numbers. And I come back to the point: I have had no interest in pushing these overall numbers in either direction. I am simply trying to find the most reliable number I can and give a responsible account of its error bars.”
“Finally, it must be emphasised that the principle in Doyle v. Olby(Ironmongers) Ltd.[1969] 2 Q.B. 158, strict though it is, still requires the plaintiff to mitigate his loss once he is aware of the fraud. So long as he is not aware of the fraud, no question of a duty to mitigate can arise. But once the fraud has been discovered, if the plaintiff is not locked into the asset and the fraud has ceased to operate on his mind, a failure to take reasonable steps to sell the property may constitute a failure to mitigate his loss requiring him to bring the value of the property into account as at the date when he discovered the fraud or shortly thereafter.”1710.At 285 Lord Steyn said this: “The third limiting principle is the duty to mitigate. The plaintiff is not entitled to damages in respect of loss which he could reasonably have avoided. This limiting principle has no special features in the context of deceit. There is no issue under this heading and I need say no more about it.”
“to consider de novo what should have been done and whatcosts should have been incurred either as a check upon thereasonableness of the [claimant's] actions or otherwise.”
“Viscount Dunedin referred to the act of a third party as another possible type of novus actus interveniens. It is not necessary, in my judgment, that the third party's act must have been negligent for it to have this effect, although if it is negligent then it may be more likely to do so. I would hold that when the independent act of a third party is properly regarded as the effective cause of damage, to the exclusion of negligence for which the defendant is responsible, then that is because the intervening act was independent, not because it was or may have been negligent. This therefore is a question of fact, to be answered on a common sense basis for the reasons suggested above, although considerations both of negligence and reasonable foreseeability may be relevant to it.”
“…it does not seem to me to be established as a rule of law that later negligence always extinguishes the causative potency of an earlier tort.”
“Customer disposition at the end of contact is recorded to beused in future contacts with the customer as a reference.”
“enable the CA to view relevant customer information presented clearly on key screens”and enable“management to change the customer information presented to the CA (and the way it is presented) on those key screens.”
“additional, specific functionality may be required by particular products or services dependent on the eventual nature of these future offerings in order to fully support them. It is not possible to include details for future products within functional specifications and new products will have to be specified and added as additional ad hoc workpackages.”
“Thus I consider my original estimates of the impact of Merlin to be sound and, if anything, generous. For a number of categories of churn, I found that Merlin would have a small positive impact. It may assist particularly inexperienced CSRs and may contain some more sophisticated customerspecific targeting than can be achieved by other means. The reports that are produced may assist Sky in developing and targeting new NBAs (assuming the recorded outcomes are accurate). However, in my view, a significant proportion of any churn-reducing benefit that arises from the current NBAs would have been available without the implementation of the CRM.”
“Dr Jenkins has analysed churn by differentiating customers who cancel voluntarily (“cuscan”) from customers who are terminated by Sky’s system automatically (“syscan”). She finds that 40% of churn is due to terminations and this is likely to continue in the future. Professor Stone is not persuaded of the need to differentiate on this basis but has agreed to consider this in his supplemental report.”
“A customer enquiry or transaction that is resolved or completed to the customer’s satisfaction by the initial agent, or another resource that the call has been escalated to, and on which no further manual action needs to be taken by the initial agent or any other resource within the organisation after the call has been completed, other than initiating an automated process or standard post-call administration.”
“On that basis, Sky requests the Court to find that Mr Boulton’s models and his assumptions and inputs should be applied to determine the final valuation of the claims, subject only to such modifications as are required in the light of judgment given on the particular issues that have been identified between the parties and are the subject of Closing Submissions.”