Corelogic UK Limited v Landmark Valuation Services Limited

In this matter the Claimant seeks damages for breach of an agreement dated 14^th March 2016 (as varied on 22^nd January 2019). The breach complained of is the alleged failure of the Defendant to provide an application programme interface (“API”) in place of a Beta Interface, for the Claimant’s use in its business. Both parties’ businesses include being a key part of the domestic mortgage valuation and approval process. The parties have mutual clients. It is accepted that 100% of domestic mortgage valuations flow through the Defendant’s DataWeb platform and that a very large proportion of mortgage valuation providers use the Claimant’s Survey Hub and Smart Survey products.

It is alleged that the Defendant’s failure caused the Claimant to incur considerable additional expense in not making monthly savings in the ongoing course of its business which the Claimant says it would have made, had the API been provided.

It is accepted that the Defendant was in breach of the Agreement as varied in that it did not take any steps to develop an API, but the Defendant says it was not obliged to provide any API on the proper construction of the agreement as varied.

In brief, the Defendant also contends that the Claimant is estopped and/or has waived any breach of contract.

As to the quantum claim, the Defendant did not adduce any evidence of its own but did put the Claimant to proof and has submitted that the sums claimed are irrecoverable/unproven. The Defendant also seeks to rely on exclusion/limitation clauses in the Agreement, in so far as necessary.

I have read and considered all the documents put before me including the parties’ respective written Openings and Closings and taken into account all the matters raised in the oral Openings and Closings and the oral evidence of fact and opinion. Where I do not address any argument expressly, that is not because I have not considered it but because I do not regard it as essential to my reasoning.

I remind myself that the Claimant has the burden of proving breach of contract, causation of loss and quantum on the balance of probabilities.

I am grateful to both counsel for their sensible co-operation during the trial and their focussed and helpful oral and written submissions.

The parties helpfully produced a List of Issues for Trial as follows:

In addition, the parties had agreed two technical issues for the trial although neither party addressed me expressly on the answers which should be given to those issues and they do not require a separate answer to deal with the Trial Issues. For completeness those Issues were:-

The parties called the following witnesses to give oral evidence at trial:

In general, all the factual witnesses did their best, in my judgment, to remember the events in question (some of which were more than ten years old as at the date of the trial) and I did not consider that any of the witnesses were seeking to be evasive or otherwise deliberately trying to make their evidence fit the case of the party who had called them. That said, the time which has elapsed between some of the events relied upon by the parties and the trial meant almost inevitably that the witnesses’ recollections were at times poor and reconstructed from their view of the meaning of contemporaneous documentation rather than actually being distinct recollections in their own right. For example when seeking to recall what had been said in meetings a number of the defendant’s witnesses had no independent recollection of what was said. I will comment more where necessary in this Judgment on certain disputed areas of fact and my findings based on the albeit limited recollections of the parties and where in existence and helpful, contemporaneous documentation.

Before considering the factual matters which are disputed, there are a number of areas of common ground which the parties very helpfully set out prior to the trial and which I will now set out in full (with the addition of the relevant terms of the Agreement and Deed of Variation).

The Defendant carries on business as a software data and analytics company operating in the UK property market. The Defendant provides the SPN (an electronic data interchange network); the Defendant also provides end-user mortgage valuation providers in the market DataWeb (a workflow management tool). Together the DataWeb platform and the SPN allow mortgage valuation providers to receive and process mortgage valuation instructions from mortgage providers; to complete mortgage valuations; and to submit the completed mortgage valuations to mortgage providers for processing. The Defendant was formerly known as “Quest End Computer Services Limited”.

The Claimant carries on business developing software and providing software products and associated services to professionals operating in the property industry. The Claimant provides a software application accessible via a mobile app called SurveyHub or the ETech Solution, which acts as a back-end business management tool for mortgage valuation providers and enables (amongst other things) those professional surveyors to process and manage mortgage valuation instructions received, undertake mortgage valuations and build survey reports on a mobile device. The Claimant was formerly known as “ETech Solutions Limited”.

The Defendant’s products and services are essential for the Claimant’s ability to provide products and services (in that it is essential that the ETech Solution interoperates with DataWeb (and therefore the SPN) for the purposes of managing the receipt of instructions from, and the return of valuation reports to, the mortgage provider).

On 14^th March 2016 the Claimant and the Defendant (then named ETech and Quest respectively) entered into the Agreement. The express terms of the Agreement are not in dispute (save as to their meaning and effect).

The Agreement which was headed “API Development and Access Agreement in relation to Data Web” included the following recitals.

GRANT OF RIGHTS

PROVISION OF THE BETA INTERFACE AND DEVELOPMENT OF THE API

ACCEPTANCE TESTS

ONGOING SERVICES

In consideration for the payment of the Service Charges, Quest shall:

ETECH'S OBLIGATIONS

[ ETech shall] be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Interface and the Test Environment, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to ETech's, or any Authorised User's, network connections, telecommunications links or caused by the internet

USE OF THE INTERFACE AND TEST ENVIRONMENT

ETech acknowledges and agrees that:

CHARGES AND PAYMENT

Quest shall invoice ETech for each instalment of the Development Fee on the dates specified in Schedule 3.

Quest shall invoice ETech for the Service Charges as calculated in accordance with Schedule 3 monthly in arrears

LIMITATION OF LIABILITY

This clause 17 sets out the entire financial liability of Quest (including any liability for the acts or omissions of its employees, agents and sub-contractors) to ETech:

Except as expressly and specifically provided in this agreement ETech assumes sole responsibility for results obtained from the use of the Services by ETech or any Authorised User, and for conclusions drawn from such use. Quest shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Quest by ETech in connection with the Services, or any actions taken by Quest at ETech's direction.

Nothing in this agreement excludes the liability of:

Subject to clause 17.2 and clause 17.3:

TERMINATION

On termination of this agreement for any reason:

Waiver

BETA INTERFACE SPECIFICATION

TEST ENVIRONMENT SPECIFICATION

API SPECIFICATION

SUPPORT SERVICES

Pursuant to the Agreement, the interoperation of the ETech Solution with DataWeb and SurveyHub was initially to be maintained by the Beta Interface designed and operated by the Claimant (albeit the parties are in dispute as to whether the Beta Interface was a temporary interface (insofar as this implies a lack of functionality or limited lifespan) and whether it was required to be subsequently replaced with the API).

On 22^nd January 2019 the Claimant and the Defendant entered into the Deed of Variation. The express terms of the Deed of Variation are not in dispute (save as to their meaning and effect).

In addition, the service charge increased to £1.36.

On 14^th March 2022 the Term of Agreement as varied by the Deed of Variation came to an end. Thereafter, the parties continued to deal with one another with the Defendant continuing to allow the ETech Solution to interoperate with DataWeb and the SPN by the Beta Interface and continuing to allow the parties’ shared customers to use the ETech Solution alongside the DataWeb and SPN. (For the avoidance of doubt, the legal basis of the parties’ continued dealings and the ongoing interoperation/access remains in dispute.)

The Defendant has not developed an API or replaced the Beta Interface with an API. The Claimant therefore continues as at today’s date to interoperate the ETech Solution with DataWeb and Survey Hub via the Beta Interface.

It is also agreed that the Claimant is entitled to interest on any damages awarded pursuant to Section 35A of the Senior Courts Act 1981 and/or pursuant to the Court’s equitable jurisdiction.

In brief, Paragraph 6 of the Amended Defence explains “ the way in which the system works” as follows:

“… a mortgage provider will issue a valuation instruction from their instruction system (which is also provided by the Defendant). The SPN routes the instruction to the selected mortgage valuation provider. The DataWeb platform allows the mortgage valuation provider to either panel the instruction to a different mortgage valuation provider or to book the instruction to one of its own surveyors who will complete the valuation form and sign the case off on the DataWeb platform. The valuation form is then returned back to the mortgage provider through the SPN. The interface between Corelogic’s SurveyHub and the mortgage valuation provider’s DataWeb platform is known as the ‘Beta Interface’.”

At a high level of summary and again as described in Paragraph 8 of the Amended Defence, the Beta Interface has two constituent parts. One is to take data from the DataWeb platform into SurveyHub and the other part is to “push” completed valuation data from SurveyHub into the DataWeb platform. Part 1 of the Claimant’s software is referred to as a “listener”. It is usually ( but not always) installed onto the DataWeb server by the Defendant. That takes a copy of any case data from the DataWeb platform and places it into SurveyHub. Part 2 is the operation by the Claimant of a number of robotic process automation (“RPA”) bots which mimic to an extent the behaviour of a human user on the DataWeb platform. They log in the same way as a human would and copy type data from SurveyHub into the DataWeb platform. In its Amended Reply, the Claimant points out that as far as the user is concerned SurveyHub is a full back-end business management tool so that the user only interacts with SurveyHub. SurveyHub interacts with the DataWeb via the Beta Interface for the purpose of managing the receipt of instructions from the mortgage valuation providers and the return of valuation reports to the mortgage valuation providers.

The parties are also agreed as to the events leading up to the Agreement. In late 2015 it came to the attention of the Defendant that the Claimant had obtained unauthorised access to the Defendant’s proprietary platform. A “cease and desist” letter was written on the Defendant’s behalf by their solicitors, Michelmores, on 13^th November 2015.

When faced with the “cease and desist” letter, the Claimant sought legal advice and asserted that competition law principles meant that as effectively a monopoly provider the Defendant could not refuse to allow the Claimant to access DataWeb subject to the requirement to pay a reasonable fee for the same. The Defendant did not challenge that assertion.

The parties then entered into negotiations in which both lawyers and technical/commercial members of both companies were involved and which were relatively quickly concluded by the Agreement that was reached in March 2016. The Development Fee of £100,000.00 was paid in May and June 2016 in equal £50,000.00 instalments.

During the trial and in its Opening and Closing Submissions, the Defendant sought to introduce and rely upon evidence of the negotiations between the parties culminating in the Agreement in March 2016. For reasons which will appear below, I am not persuaded that evidence of the parties’ negotiations is admissible for the purposes of construing the Agreement between the parties. Nevertheless I do accept, as did Mr Driver in his oral evidence (Transcript, Day 1, Page 71), that the Claimant needed the Agreement from a commercial perspective to achieve integration because the Claimant’s major client. e.Surv, would not purchase the SurveyHub product without such an agreement. I also accept that the suggestion - to use a neutral word - of an API came from the Defendant and I accept, as Mr Driver’s witness statement identifies, that an API gave the Defendant greater control over the interface because the system might otherwise be overloaded by the Claimant’s activities.

In April 2016 the Claimant’s agreement with its client e.Surv “went live”. Since then the Claimant has grown its business considerably with approximately 50 plus clients now using its Survey Hub product for which the Claimant continues to use the Defendant’s DataWeb.

The extent to which, if at all, the Claimant sought to enforce the alleged obligation to provide an API was disputed. This factual issue forms the basis of the Defendant’s reliance on waiver/estoppel. The Defendant’s position is summarised at Paragraph 16 of the Amended Defence:

“In the premises it is Landmark’s belief and understanding that the Beta Interface benefited Corelogic during this period of rapid growth and that this is why Corelogic did not at any time during the term of the agreement (or until October 2023), engage with Landmark in relation to the development and agreement of a specification for an API. Nor did Corelogic at any time during the term of the agreement (or until October 2023), request the provision of an API or raise Landmark’s alleged failure to provide an API. Corelogic did not raise the issue of the API when negotiating the Deed of Variation in January 2019.”

In her Closing, Miss Briggs pointed out that the first complaint of breach of contract was in December 2023.

In reply to that, the Claimant relies on meetings on 20^th January 2017; 16^th October 2018; 27^th June 2019; 24^th February 2022; 18^th July 2022 and 26^th October 2022.

Mr Drivers’ note of 20^th January 2017 meeting includes:

“API → DataWeb - One year shelf life.

→ Valuation HUB implementation.”

I accept Mr Driver was told at the meeting that the Defendant was developing a new product (which, it is accepted, is still under development) but it is also clear that an API was mentioned between the parties. Mr Driver is not said to have agreed to vary the Agreement at or after that meeting.

In January 2018 the Claimant was in the course of being purchased by Corelogic. In those negotiations Mr David Driver internally shared his comments on queries raised by the purchaser including stating:

“Quest [the Defendant] have not developed the API contemplated in the Quest agreement and as far as we are aware they are not intending to do so.”

In answer to a question from me, Mr Jim Driver accepted that statement was true as at that date. Whilst it took some time for Mr Driver to accept that statement was true, I do not consider his earlier reluctance to answer that question means his evidence as a whole should be discounted or disbelieved although I do consider that his quantum evidence needs to be treated cautiously as I explain at paragraph 137.

While I accept that the provision of an API was not the most important issue on the Claimant’s mind while the Agreement was ongoing, neither in my view can it be demonstrated that the Claimant had expressly or impliedly effectively abandoned the provision of an API.

Indeed, in my judgment the evidence of both parties made clear, in addition to Mr Driver’s evidence and by way of example, Mr Brown’s witness statement at Paragraph 15, that the Defendant did inform the Claimant that it would be developing a new Hub solution which would include an API, but the request by the Claimant for details of that solution went unanswered. I also accept that the notes taken by Mr Blackwell of the meetings in February, July and October 2022 are consistent with the provision of a new solution including an API.

Miss Briggs contends that the provision of a “new” API rather than the one “contemplated” by the Agreement shows that the “contractual” API was not ever requested and/or the Claimant would not enforce its contractual rights for an API.

I do not accept that submission as a proper conclusion on the facts (and for reasons I give at paragraph 129, as a matter of law). The precise form of API to be provided was not identified in the Agreement. As identified above at Paragraph 17, the definition of API was by reference to it having the same interoperability as the Beta Interface. In my judgment the parties’ references to the provision of an API during the course of an Agreement as varied cannot be said to show that any of the Claimant’s witnesses thereby abandoned the original contractual obligation. Nor was a case that the contractual API was replaced by a “new” API put in cross-examination to the Claimant’s witnesses.

I also note that the “abandonment” argument is counterintuitive in the sense that the Defendant’s position is that no API was required to be provided at all. Whilst a party can of course run alternative arguments by way of defence, there is a certain air of unreality about how the Defendant who did not believe it had to provide an API at all could consider its offers of a “different” API to amount to abandonment of the promise it believes it did not make.

In summary I find as a fact that while the Claimant did not raise the provision of an API extensively during the course of the Agreement as varied, it was clearly raised. By way of example, the response from the Defendant in reference to a “one size fits all” solution (as described by Mr Blackwell in his oral evidence Transcript day 2 page 35) including an API clearly shows that the Defendant knew that the provision of an API was still being required. At no time did the parties share a common understanding that an API was no longer required.

A further factual issue which requires determination is whether the Defendant acted to its detriment in relying on any representations made by the Claimant – if contrary to my finding above any such representations had been made. Although describing this as a factual issue, in reality this is a counterfactual issue because the Defendant did not believe an API was required to be provided.

The high point of Ms Briggs’ submissions on this issue is that she relies upon paragraph 115 of Mr Holden’s statement and the oral evidence of Mr Brown. However Mr Holden’s statement actually states:- “…I am sure we would have allocated resources to begin the process of agreeing a specification for an API with Corelogic in line with the agreement”. That is based on what was then the Defendant’s pleaded position (now not pursued) that the specification had to be agreed before any development could commence. That does not in my judgement support a finding that the API would have been provided if the Claimant had asked for one. Further such a finding is contrary to my finding that the Claimant did ask for an API and one was not provided (nor were the details of the “new “ API ever provided). It is also clear from Mr Holden’s evidence (at paragraph 116) and the contemporaneous documents (see by way of examples, Defendant’s internal email dated 1.2.17 “ ..why are we not building an API to facilitate this…” and 16.5.17 “… an ETech API …is certainly not being prioritised from a business perspective …”) that the original fee had become uneconomic for the Defendant who would have sought to re-negotiate the same before developing an API (let alone providing one). Mr Brown’s evidence did not condescend to any particulars of what would exactly have been done by the Defendant. It follows that I reject this submission. At no time, in my judgment, would the Defendant have provided an API if or when asked for one.

The other issue raised by Ms Briggs is that being exposed to this claim is itself detriment to the Defendant. Whilst that may be true in the broadest of senses it cannot in my view be said that being a party to proceedings is automatically a matter of detrimental reliance and in this case where the issue of breach remains contested it cannot be said that the proceedings themselves amount to detriment for the Defendant. The proceedings are simply the final stage in resolving this dispute.

I therefore find that even if (contrary to my findings) representations were made, in any event, the Defendant did not rely on them at all let alone to its detriment.

The quantum evidence which the Claimant relies upon is contained in the statements of Mr Driver and in particular so far as the VM claim is concerned, his second statement.

Mr Driver’s evidence was prayed in aid to support the claim for:

As to the Virtual Machine costs, Mr Driver’s evidence (which was also produced in support of an application to re-amend the Particulars of Claim which I granted at the pre-trial review) explains the calculations which have been carried out to identify the precise sums spent on Virtual Machines in respect of the Beta Interface which it is claimed would not have been incurred at all had an API been provided.

The Virtual Machine costs commenced in January 2022. The sum of £337,275.33 is made up of total Azure compute discounted VM list price costs; Azure OS licence cost and Azure ancillary costs in the sums of £213,580.11, £34,807.01 and £88,888.21 respectively.

Mr Driver’s second witness statement consists of a careful explanation of how those figures have been calculated. The date of January 2022 was chosen because that is the date when the Claimant started to use Virtual Machines in Microsoft Azure cloud environment (see Mr Driver’s first statement at Paragraph 31). Since then, the Claimant has records of the Virtual Machines used for the Beta Interface. All the documents supporting the figures/calculations have been produced and are in the Trial Bundle.

Mr Driver was not cross-examined on the calculation of the VM costs claimed. There was no challenge to the calculation itself by Miss Briggs for the Defendant.

In his Closing Submissions at Paragraph 33 Mr Bergin KC drew my attention to Mr Driver’s first witness statement at Paragraph 37 and his third witness statement at Paragraphs 19 to 22 and Mr Healey’s oral evidence at Transcript, Day 1, Page 162, Line 15 to Page 163, Line 2. He also reminded me that Mr Barnett and Mr Sykes accepted they had no knowledge of whether the Claimant would need additional infrastructure to support any API.

Mr Barnett’s witness statement at Paragraph 79 states:

“If an API was developed to replace the Beta Interface, the virtual agents would become redundant due to the removal of the need to ‘simulate a human’ in the system.”

That evidence was unchallenged.

I accept Mr Driver and Mr Healey’s evidence, not least since it was unchallenged, and I also note the lack of positive case from the Defendant or challenge to the methodology/calculation itself.

As to the labour costs, these are presented as an estimate within a range based on average per calendar month figures for the director client dealing; senior manager, IT service delivery; senior dev ops engineer; senior database analyst and application support (see Mr Driver’s first witness statement at Paragraphs 61 to 79). The rate claimed for application support is a “blended rate” for three staff members with average base salaries.

Mr Driver’s first witness statement explains how the calculation has been produced. At Paragraph 67, discussing the work of the Devops team dealing with updates he states:

“I would have thought this was 8 to 10 hours per month.”

At Paragraph 69 he states:

“It is probably 60 to 80 hours a month of effort to complete these tasks.”

At Paragraph 71 the database team “probably spends 5 to 10 hours per month supporting the integration.”

Mr Driver also accepted in cross-examination by Miss Briggs that no written records of hours expended have been taken since 2023 when the claims were first intimated. He also affirmed his “confidence” in the figures claimed.

As I have noted above, pursuant to the Order made at the case management conference, the use of expert evidence in this case was somewhat circumscribed. The liability experts were asked to confine their issues to “What the difference would have been between the Beta Interface and an API had such an API been developed; and (b) What the technical consequences of that difference would have been.”

The parties’ respective experts were Mr Nick Ellison for the Claimant and Mr Tony Sykes for the Defendant. Both experts were clearly properly qualified to opine on the issues instructed and there was no suggestion otherwise.

In their Joint Statement in March 2026, the experts came to a number of agreements including that by Issue 3:

“Both the Beta Interface and an API would require infrastructure and operational support.”

By Issue 4 that:

“Neither approach eliminates the need for ongoing technical maintenance”

And that “each approach may give rise to different forms of ongoing technical constraint and management effort”.

The experts also produced a Supplemental Joint Statement on 2^nd April 2026 as a result of an Order I made at the pre-trial review on 20^th March 2026. Mr Bergin KC reserved his position at the PTR and before and during the trial as to whether these questions were properly asked of the experts in light of the narrow compass of their expert evidence. He also objected to a number of paragraphs in Mr Sykes’ report by way of a schedule to his written closing. Insofar as necessary, I deal with those objections later in this Judgment. The experts did, however, agree a number of matters including at Paragraph 3.1 that “a hypothetical API based integration will require infrastructure on the Corelogic site. This would include application components, integration services and supporting computer and storage resources which could be deployed using virtual machines, on premise servers or equivalent infrastructure”. The experts also agreed that such infrastructure would be required to support functions such as request generation, response handling, logging, error management and where appropriate caching. Further, the experts agreed at Paragraph 3.4 that “a hypothetical API based integration would require a labour element on the Claimant’s side, that this would include activities such as monitoring, maintenance and integration support which is typical of any system integration”. The experts also agreed that the extent of such labour would be influenced by the complexity of the integration and the variability of client configurations. At Paragraph 3.5 the experts further agreed that “in both approaches some level of ongoing operational involvement would be required to ensure that the integration continues to function effectively”. The experts differed as to the nature and extent of that labour. At Paragraph 3.17 the experts agreed that certain improvements of the Beta Interface could have reduced certain operational inefficiencies and overheads, for example through optimisation of automation logic, error handling or workflow management. Both experts do note that neither of them had inspected or tested the Beta Interface implementation directly. At Paragraph 3.23 the experts agreed that some efficiency gains may have been possible, but they differ as to whether these would have resulted in material changes to the overall infrastructure and labour profile.

While I am grateful to the experts for their evidence, in my judgement the expert evidence did not provide any measurable particulars of the issues they were asked to address, (hence my Order for the second joint statement). Even with that further statement the evidence was at a high level of generality and did not affect the result of the trial. That is not a criticism of either expert but is rather the result of their being asked to opine on generalities in respect of a counterfactual scenario and where neither expert had inspected the current architecture of the systems operated by the parties.

Neither party was permitted to call expert evidence on the quantum claimed. The only factual evidence in respect of quantum put before the Court was that of the Claimant and in particular Mr Driver.

The Defendant sought to rely on the expert evidence in support of its defence to the sums claimed by the Claimant. There are though, in my judgment three fundamental difficulties with relying on the expert evidence in seeking to challenge the quantum claimed. First, the expert evidence was expressly not to deal with quantum issues. Neither party had permission to rely on expert evidence in that regard. To permit that evidence now to be used would be to subvert the Court’s CMC Order and is impermissible. In that regard, I also uphold Mr Bergin KC’s objections to the admissibility of comments by Mr Sykes which clearly strayed into quantum issues and/or fall well outside the confines of the evidence permitted at the CMC. Second, the evidence itself (as I have already noted) does not condescend to any particulars of any sums which might be set off, as it were, from the sums claimed (and nor could it since it was expressly not quantum evidence). The third problem with using the expert evidence is that it does not address the claims made on their own terms but rather speaks in general terms about issues such as “hosting costs” when the Claimant’s claim is for specific items, namely Virtual Machines which it is agreed are not required for an API. None of the experts have sought to disagree with Mr Barnett’s evidence. On that basis, even if admitted, the expert evidence is not of any assistance to the Defendant’s position so far as the quantum claimed is concerned.

The parties are agreed as to the principles the Court is to apply when considering questions of contractual interpretation/construction. I gratefully adopt the summary of those principles taken from Lukoil Asia Pacific Pte Ltd v. Ocean Tankers (Pte) Ltd (the “Ocean Neptune”)[2018] EWHC 163 (Comm) as follows:

“The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and depending on the nature, formality and quality of the drafting of the contract give more or less weight to elements of the wider context in reaching its view as to the effective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing instructions, the court must consider the quality of the drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process but where each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether a more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract so long as the court balances the indications given by each.”

The parties also accept that a Court is not permitted to have regard to pre-contractual negotiations in order to construe the meaning of a particular provision, but it is accepted that a Court may look at such material in order to “show the surrounding circumstances and by that means, to explain the commercial or business object of a contract …”. In some cases where necessary that could extend to showing the genesis and aim of a specific provision or provisions of the contract where “the genesis and aim of a particular provision may be sufficiently important to qualify as part of the genesis and aim of the whole transaction”: see Leggatt LJ (as he then was) in Merthyr (South Wales) Ltd v. Merthyr Tydfil County Borough Council[2019] EWCA Civ 526 at (para.52).

Whilst the parties both set out the well-known legal tests for the implication of terms, as will be seen from my findings below and from the way in which the matters developed before me during the course of the hearing, I do not need to set those principles out because whether terms were or were not implied into the Agreement does not now need to be decided.

So far as the damages recoverable in a claim for breach of contract is concerned, the law is again clearly established flowing from the decision in Hadley v. Baxendale [1854] 9 Exch 341. In TheAchilleas[2008] UKHL 48, the House of Lords discussed the principle of the recoverability of damages by reference to the decision in South Australia Asset Management Corporation v. York Montagu Ltd[1997] AC 191(“ SAAMCO”). At Paragraph 14, quoting what he said in SAAMCO , Lord Hoffmann said:

“Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation for. The correct description of the loss for which the valuer is liable must precede any consideration of the measure of damages.”

Lord Hoffmann continues at Paragraph 15 and16 of The Achilleas:

“In other words one must first decide whether the loss for which compensation is sought is of a ‘kind’ or ‘type’ for which the contract breaker ought fairly to be taken to have accepted responsibility. In the South Australia case, the question was whether a valuer who had (in breach of an implied term to exercise reasonable care and skill) negligently advised his client bank that property which it proposed to take as security for a loan was worth a good deal more than its actual market value should be liable not only for losses attributable to the deficient security but also for further losses attributable to a fall in the property market. The House decided that he should not be liable for this kind of loss.”

“What is true of an implied contractual duty (to take reasonable care in a valuation) is equally true of an express contractual duty (to re-deliver the ship on the appointed day). In both cases the consequences for which the contracting party will be liable are those which ‘the law regards as giving best effect to the express obligations assumed’ and ‘[not] extending them to impose on the [contracting party] a liability greater than he could reasonably have thought he was undertaking.”

At Paragraph 21 Lord Hoffman continued:

“It is generally accepted that a contracting party will be liable for damages for losses which are unforeseeably large if loss of that type or kind fell within one or other of the rules in Hadley v. Baxendale … That is generally an inclusive principle: if losses of that type are foreseeable, damages will include compensation for those losses however large. But the South Australia and Mulvenna cases show that it may also be an exclusive principle and that a party may not be liable for foreseeable losses because they are not of a type or kind for which he can be treated as having assumed responsibility.”

Lord Hoffmann concludes at Paragraph 22 with the question:

“What is the basis for deciding whether loss is of the same type or a different type? It is not a question of Platonist metaphysics. The distinction must rest upon some principle of the law on contract. In my opinion, the only rational basis for the distinction is that it reflects what would reasonably have been regarded by the contracting party as significant for the purposes of the risk he was undertaking.”

Lord Hoffman then quotes from the well-known decision in Victoria Laundry (Windsor) Ltd v. Newman Industries Ltd[1949] 2 KB 528 where losses from a particularly lucrative contract were not awarded due to lack of knowledge on the part of the Defendant.

In The Achilleas itself, the House of Lords allowed an appeal from arbitrators who had awarded damages for breach of a charter party where those damages were not the usual market value measure but were the losses said to have been suffered by the owners’ inability to let their vessel at a specific rate for some new charterers where the new rate was not recovered because of culpable delay on the part of the preceding charterers, the defendant. In his speech at Paragraph 34, Lord Hope said:

“In this case it was within the parties’ contemplation that an injury which would arise generally from late delivery would be loss of use at the market rate as compared with the charter rate during a relevant period. This is something that everybody who deals in the market knows about and can be expected to take into account. But the charterers could not be expected to know how if - as was not unlikely - there was a subsequent fixture the owners would deal with any new charterers. This was something over which they had no control and at the time of entering into the contract was completely unpredictable …”

Again at Paragraph 36 Lord Hope, quoting the minority arbitrator stated:

“A party cannot be expected to assume responsibility for something that he cannot control and because he doesn’t know anything about it cannot quantify. It is not enough for him to know in general and on open-ended terms that there is likely to be a follow-on fixture … What he needs is some information that will enable him to assess the extent of any liability. The policy of the law is that effect should be given to the presumed intention of the parties. That is why the damages that are recoverable for breach of contract are limited to what happens in ordinary circumstances - in the great multitude of cases, as Alderson B put it in Hadley v. Baxendale - where an assumption of responsibility can be presumed or what arises in special circumstances known to or communicated to the parties in breach at the time of entering into the contract which because he knew about he can be expected to provide for. This is a principle of general application. We are dealing in this case with a highly specialised area of commercial law. But the principle by which the issue must be resolved is that which applies in the law of contract generally.”

In my judgment, the decisions in SAAMCO and The Achilleas do not in any way reverse the principles first set down in Hadley v. Baxendale. Rather, those authorities identify situations where the Court needs to consider either the scope of the express or implied duty undertaken by the defendant to the claimant with a view to deciding if the damages claimed can be said to flow from a breach of that duty or not. Second, in a case where unusual levels or measures of damage are sought by reference to non-standard measures of loss such as in The Achilleas, then without a demonstration of an assumption of responsibility for those particular losses the claimant will be left to its normal measure of loss if proven (as in Victoria Laundry).

Both parties have referred me to the decision of the Supreme Court in Rock Advertising Ltd v. MWB Business Exchange Centres Ltd[2019] AC 119in respect of the defences put forward by the Defendant that (to the extent that there was an obligation to provide an API) the Claimant has waived any such obligation and/or is estopped from claiming damages for any such breach. The decision in Rock Advertising centred on the effect of a no oral modification clause and was strictly not a case which concerned the doctrine of waiver. Paragraph 16 of the majority decision given by Lord Sumption JSC states:

“The enforcement of no oral modification clauses carries with it the risk that a party may act on a contract as varied for example by performing it and then find himself unable to enforce it. It will be recalled that both the Vienna Convention and the UNIDROIT model code qualify the principle that effect is given to no oral modification clauses by stating that a party may be precluded by his conduct from relying on such a provision to the extent that the other party has relied (or reasonably relied) on that conduct. In some legal systems this result would follow from the concept of contractual good faith or abuse of rights. In England the safeguard against injustice lies in the various doctrines of estoppel. This is not the place to explore the circumstances in which a person can be estopped from relying on a contractual provision laying down conditions for the formal validity of a variation. The courts below rightly held that the minimal steps taken by Rock Advertising were not enough to support any estoppel defences. I would merely point out that the scope of estoppel cannot be so broad as to destroy the whole advantage of certainty for which the parties stipulated when they agreed upon terms including the no oral modification clause. At the very least (i) there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its own formality; (ii) something more would be required for this purpose than the informal promise itself …”

It follows that an argument based on estoppel may succeed in overturning the effect of a no oral modification clause. That may assist a party seeking to argue that a variation is effective notwithstanding that it was not made in writing.

The circumstances in this matter are, however, very different from the circumstances in the Rock Advertising case. The waiver or estoppel relied upon by the Defendant is not put forward to defeat a no oral modification clause. It is put forward in answer to Clause 23 which deals with waiver. There is nothing in Rock Advertising which affects, in my judgment, the ability of a party to rely upon a no waiver clause such as Clause 23 other than the possibility that a party may be estopped from relying on that clause.

In this matter, the Defendant does not in terms seek to estop the Claimant from relying on Clause 23 of the Agreement; rather, it seeks to estop the Claimant from seeking damages for breach of contract (should one be found to have been committed). To establish the operation of any form of estoppel, it is accepted that detrimental reliance by the party seeking to set up the estoppel is required.

As far as labour costs are concerned, the Court of Appeal’s decision in Aerospace Publishing Ltd v. British Thames Water Utilities Ltd [2007] EWCA Civ 3 helpfully reviewed the authorities on the topic of claims for diversion of staff time.

At Paragraph 86, Wilson LJ states:

“I consider that the authorities establish the following propositions.

(a)

The fact and if so the extent of the diversion of staff time have to be properly established and if in that regard evidence which it would have been reasonable for the claimant to adduce is not adduced is at risk of a finding they have not been established.

(b)

A claimant also has to establish that the diversion caused significant disruption to its business.

(c)

Even though it may well be that strictly the claim should be cast in terms of a loss of revenue attributable to the diversion of staff time, nevertheless in the ordinary case and unless the defendant can establish the contrary it is reasonable for the court to infer from the disruption that had their time not been thus diverted staff would have applied to activities which would directly or indirectly have generated revenue for the claimant in an amount at least equal to the cost of employing them during that time.”

As an example of a case where the evidential burden was not met, Miss Briggs referred me to the decision of HHJ Keyser KC in Zenith Logistic Services (UK) Ltd v. Keates[2022] EWHC 1496 (Comm) at paras.305 and 307 where the Judge said:

“The application of the Aerospace Publishing principles is in each case dependent on the facts and evidence. The court must strive to be realistic and in most cases to use a broad brush. However, it must have a rational and evidence based ground on which to make an award of damages; it cannot just pluck figures out of the air. In the Borealis AB case Gross LJ was able to use common sense and the broad brush to conclude that on the evidence before him the claimant had suffered a loss of at least 75,000 Euros. Similarly in Azzurri Communications Ltd v. International Telecommunications Equipment Ltd [2013] EWPCC 17 HHJ Birss QC (as he then was) was able to identify a loss to the claimant of £24,550.91. In the present case, however, I find myself unable to identify any loss properly recoverable by any of the claimants. There is a difference between a broad brush and pure arbitrariness … The result of these decisions is that although I have found an unlawful means conspiracy to have existed, I make no award of damages in respect of it. This causes me no unease. Although damages are ‘at large’ in a conspiracy claim, that does not mean that it is axiomatic that damages have to be awarded for every combination to use unlawful means. The claimant does still have to prove pecuniary loss even if the court was prepared to use a broad brush. In theory, the claimants in this case could have proved that they suffered loss ; in fact, they advanced a spurious claim in that regard. It could also have recovered damages in respect of wasted management time. But these would have to be proved in such a manner as enabled the Court to make an award that, even if broad brush, was at least rational in principle. This they have failed to do.”

In the Azzurri Communications matter, HHJ Birss QC ( as he then was) emphasised that:

“In order for the reasoning in Aerospace to apply the claimant has to establish that the diversion of staff time caused a significant disruption to its business.”

(see Paragraph 91)

In brief, the Claimant submits that the clear reading of the Agreement as a whole can only result in a conclusion that the Defendant was obliged not only to develop an API but also to provide or make it available to the Claimant by the end of the Term. Mr Bergin KC points amongst others to the title of the Agreement “API Development and Access Agreement in relation to DataWeb”. He also refers to Recitals E and F and the words “… the right to access the DataWeb via the API once developed …”; “… the right to access the DataWeb via the Beta Interface on a temporary basis while the API is being developed.” The definition of Development Services includes “… the development of the API and test environment.”

Schedule 2, Part 3 which has been set out above but which for ease of reference I set out again here reads, under the heading “API Specification” as follows:

“Quest intends to produce a fully supported API which will provide the same levels of interoperability as the Beta Interface. The definition of this API will be shared with ETech and an agreement with regards to the replacement of the Beta Interface with the fully supported API reached at this stage. It is the intention of Quest to remove the current milestone updates when the API is made available.”

Mr Bergin KC submits that the future agreement was a matter of mechanics, not of principle.

He refers to Clause 3.1.2 and its reference to access:

“… from the date that it [the API] is accepted in accordance with Clause 5 and is ready for use thereafter for the duration of the Term.”

Mr Bergin KC also refers to the witness evidence accepting an obligation to develop an API.

Mr Bergin KC reminds me that the original defence of a precondition to agreeing the specification before developing the API has now been abandoned and a new case has been put that the API was solely for the Defendant’s benefit and the contract was permissive, not mandatory. In that regard, Miss Briggs has sought to rely on evidence of pre-contractual negotiations. Mr Bergin KC submits that evidence is inadmissible. He submits that none of the pre-contract negotiations have been tied into the “genesis and aim of the whole transaction.”

The Defendant’s other defence (which Mr Bergin says should have been but was not pleaded) is that the only obligation was to develop an API. Any provision of the API requires a subsequent agreement (which was not reached). Mr Bergin describes that argument as “commercial nonsense”. In any event, that argument does not address the clear words of the Agreement and in particular the words “make available”, a synonym for “provide”. He also refers to Clause 6.1.2 of the Agreement and the Defendant’s obligations to notify the Claimant that the API was “available and ready for use”. He submits that “ready for use” must mean by the Claimant and Authorised Users to access DataWeb remotely via the internet. At Paragraph 34 of his Closing Submissions, he submits:

“Corelogic is permitted access to DataWeb via the Beta Interface which is to be replaced by the API. The scheme of the Agreement and the clear contractual intention was that Corelogic should at all times have access to DataWeb by one means or the other and should at no time have no access. It was the scheme of the Agreement or the contractual intention that authorised users would have access to DataWeb by the API after the right to use the Beta Interface had expired.”

Issues 2 and 3 are fallbacks to the contention that the express terms of the Agreement require the provision or availability of an API by no later than 14^th March 2019.

Mr Bergin KC’s written Closing Submissions did not in terms address Issue 4. In oral Closings he sought to argue that although the Term as defined was extended to March 2022, nevertheless the obligation to provide the API remained at 13^th March 2019 when the parties both knew none had been provided by then.

As to breach, Mr Bergin KC points out that no API having been provided by March 2019/2022 then to the extent that such an obligation exists it has clearly been breached.

The Defendant’s submission, in very short compass, is that the “provision” of an API was to be the subject of a further agreement envisaged in Schedule 2, Part 3 of the Agreement.

As to construction of the Agreement, whilst agreeing the legal principles Miss Briggs says it is important to note that “key clauses” were negotiated by non-lawyers and so their meaning needs to be viewed in the way technical/commercial people would understand them. Miss Briggs sought to rely on various documents produced either internally or externally and the parties’ witness statements and the negotiation of the Agreement. In particular, she referred to the removal of the word “provision” in the heading of Clause 4 of the Agreement. She submits the factual background shows that the Claimant’s commercial and business objective was to secure authorised access to DataWeb as soon as possible. She then refers to how successful the Claimant has been post the Agreement. She submits that the Defendant’s concerns and why it introduced the API were technical difficulties and possible access to its proprietary information. She refers to Clauses 4.1 and 1.1 and Schedule 2, Part 3. She says that “On the face”, no provision of an API is expressly mentioned and the agreement to agree is directly inconsistent with such an obligation. She submits that the word “development” was chosen by technical people rather than “provision”, “implementation” or “replacement”. She refers to the Supreme Court’s decision in Providence v. Hexagon (which concerned the construction of clauses in a standard form of JCT building contract). She points out that it is only the sharing of a definition which has a mandatory word “will”. She notes the lack of any provision in Schedule 2, Part 3 to compel the further agreement by a particular date and no “default procedure”. As to the provisions, the Defendant also notes that the final agreement’s subject will be the implementation or provision of the API and submits that the further agreement will need to deal with costs milestones and other matters.

Miss Briggs relies on witness evidence and the expert evidence in showing what more needed to be agreed before the API could be implemented/provided. Miss Briggs’ position is summarised at Paragraph 38 of her Closing as follows:

“In summary, Landmark says that the Agreement does not on its proper construction require Landmark to ‘provide’ or ‘implement’ an API whether by the date the Agreement expires or at all. That obligation cannot be found when one construes the natural and ordinary (and technical) meaning of the words used in Clauses 1.1 and 4.1 (‘develop’), and it cannot be found within the natural and ordinary meanings as the word is used in Schedule 2, Part 3. Indeed, it is expressly inconsistent with the words used in that provision which provides that the replacement of the Beta Interface with the API was to be subject to a future agreement which the parties (with their technical backgrounds) would have understood (as Mr Driver confirmed) to require agreement on a number of complex issues, including the form and timing of the roll out which would be dictated by timescales imposed not only by the parties themselves but by third party clients.)”

Issues 2 and 3 do not require determination.

As to issue 4, Miss Briggs contends that if there was an obligation to develop and provide an API then the Deed of Variation replaced the original term with a new Term expiring in March 2022. She notes that the Claimant’s case on this issue was not put forward with any real explanation. She further submits that because the parties continued to trade on the terms of the Agreement until May 2025, that the Term did not expire until then. She uses that argument to explain the logical and contractual incoherence she has argued as summarised above.

As to breach, that is denied on the basis that no obligation to provide existed. It is accepted that a non-pleaded breach of the obligation to develop did occur.

Mr Bergin KC submits that waiver cannot be argued because of Clause 23 of the Agreement and the Supreme Court’s decision in Rock Advertising. In any event, he submits that the evidence does not support any waiver on the facts and the complaint made about the Claimant’s lack of engagement could apply equally to the Defendant. He submits at Paragraph 68 of his Closing that:

“To raise an API which one party is contractually obliged to develop is an implicit request for it.”

As to estoppel, he submits that whatever form of that is relied upon is unclear, but none of the forms can be relied upon on the facts due to a lack of any evidence of conduct leading the Defendant to believe that the Claimant would not affirm its rights. Indeed, he points to evidence stating that the Claimant did seek an API such as Mr Holden’s briefing to Mr Brown dated 27^th June 2019. He points to a lack of evidence on promise/convention and detriment.

Miss Briggs argues that Clause 23 cannot defeat an estoppel argument relying on Rock Advertising. She also argues that Clause 23 does not bar a waiver arising from a positive act referring to Tele No.2 International Card Company SA v. The Post Office Ltd[2009] EWCA Civ 9 where a contractual performance for eleven months without protest amounted to a waiver of a right to terminate. She refers to the Claimant’s continued performance of the Agreement for nearly eight years without protest and the first mention of breach having been in December 2023.

As to estoppel, she refers to the lack of any communications demanding or requesting an API (as opposed to internal documents or e.Surv clients). As to estoppel by representation, she relies on Mr Driver’s internal meeting notes in 2017 and communications to the purchaser in 2018. She submits that by 2018 it being known that no API was being developed put an onus on the Claimant to demand one from the Defendant. She refers to further emails and meetings to show that there was a convention. In this context, the non-contractual API is raised and the lack of request for the “contractual” API. She summarises her case at Paragraph 86 as follows:

“Alternatively that such discussions led to and/or evidence that the parties were operating on a mutual understanding that Corelogic either did not consider it had, or would not enforce any contractual right it had, to insist on the provision of an API between Survey Hub and DataWeb or to claim damages against Landmark for breach of Agreement in failing to provide the ‘contractual’ API.”

Mr Bergin KC points out that so far as the Virtual Machines claim is concerned, it is common ground that the Virtual Machines used to operate the Beta Interface would not have been required had the API been delivered and save for the date of breach Landmark has not disputed the methodology or calculation of this head of loss. He identifies where the documents backing up this claim appear in the Bundle and points out that the claims are incremental as they include only additional costs incurred by the Claimant for the technical architecture supporting the Beta Interface as opposed to the technical architecture for Survey Hub as a whole.

As to labour costs, he accepts and suggests “as expected” that the Claimant’s staff did not keep timesheets. He points out that Mr Driver’s evidence was not challenged as to the calculation or methodology. He also submits that a “fully supported” API would mean fully technically supported so that all maintenance costs were for the Defendant only and the Claimant’s unchallenged evidence shows that its labour costs in maintaining the integrity of the API would fall to “virtually zero”. He relies on the evidence given by Mr Barnett in cross examination.

He further identifies costs which have not been included in the claim.

As to the suggestion that commercial benefits of the Beta Interface need to be credited by the Claimant, he points out that all the evidence points to limitations and difficulties with the Beta Interface rather than benefits.

As to the possible need to rely on limitation/exclusion clauses by the Defendant, in fact that is an academic issue because it is accepted that (save for the potential of a declaration which is the subject of Issue 10) the sums claimed do not engage the amount of the limitation in the terms and conditions.

As to the Defendant’s reliance on SAAMCO and The Achilleas, Mr Bergin KC points out that the Defendant has failed to identify anything unusual or exceptional in the contract or the loss claimed and that this is not the “rare case” where for example expert evidence about the market shows a lack of assumption of responsibility for losses which are otherwise reasonably foreseeable.

The Defendant’s Amended Defence includes at Paragraph 46, the following:

“Further and in any event Landmark does not admit that had an API been made available to Corelogic the monthly savings set out in the Schedule would have been achieved. In particular, Corelogic is required to prove that:

46.1.

None of the costs of Virtual Machines claimed would have been incurred in respect of the infrastructure/hosting requirement of an API and/or that Corelogic would not have occurred equivalent or other costs in respect of the infrastructure/hosting requirements of an API for which it must give credit.

46.2.

None of the costs of labour resource costs claimed would have been incurred in any event and/or in respect of the development test and deployment monitoring, operation maintenance, change control and integration support requirements of an API and/or that Corelogic would not have incurred (or paid) the equivalent or other or additional costs in respect of such activities for which it must give credit.”

As a primary point, Miss Briggs contends that because the API only needs to be provided (if the court is against her submissions on the need to provide an API) by the end of the Agreement and there is no obligation to renew and/or provide access thereafter, there can be no loss incurred by the Claimant. She contends this is the result either because on SAAMCO/The Achilleas principles and on the facts of this matter either the parties did not foresee on 14^th March that breach of an obligation to provide an API would cause Corelogic to suffer damage by way of the cost of operating the Beta Interface and (2) the purpose of the obligation to provide the API could not encompass a duty or responsibility to hold Corelogic harmless against or alleviate it from the cost of operating the Beta Interface. This was because the parties agreed and thus foresaw what would or could be borne by Corelogic up to the date the Agreement expired. It follows that loss post the expiry of the Agreement could not have been foreseen. She also argues that the right to terminate for convenience on six months’ notice is inconsistent with the claim in damages beyond the expiry of the Agreement. She submits this is not a harsh result as it is the result of the commercial basis or technical object of the API not being to relieve the Claimant of the cost of integrating via the Beta Interface.

She also argues that it is false to say that the Claimant had no choice but to interface with the Defendant’s DataWeb.

Miss Briggs further contends that the claim is put forward as a total loss claim and it is clear from the evidence that the Claimant would have incurred some costs in operating/maintaining an API so that an all or nothing claim must be a “nothing” result as it is not “all” . She seeks to rely on the expert evidence in that regard. She also relies on Mr Driver’s evidence as to costs which would (all or mostly) have been avoided. Again, if it is only mostly, that is not all and therefore, she says, nothing is the default option. To bolster her argument she states that “fully supported” cannot mean what Mr Bergin KC submitted. That stretches the normal and ordinary meaning and is contrary to the express terms of the Agreement such as Schedule 2, Part 4. She again refers to the expert evidence, such as Mr Ellison’s cross-examination (Day 4, Page 159, Lines 11-19):

“Principally the management and maintenance would be for the Claimant …”

As to hosting costs, Miss Briggs submits that some hosting costs would have been incurred if an API had been provided. She also submits that the move from hosting the Beta Interface in a data centre to the cloud was unforeseeable and/or broke the chain of causation. Further, that the Virtual Machine costs are due to a decision to increase the Claimant’s customer base and that increased cost should not be recoverable from the Defendant.

As to labour costs, Miss Briggs refers to the relevant legal principles I have set out above. She summarises her position at Paragraph 152 of her Closing as follows:

“Landmark accepts that the application of the Aerospace Publishing principles can lead to an award of damages. However, Landmark says that in this case Corelogic’s claim is one of pure arbitrariness. Corelogic has not evidenced the hours claimed, has not established (by way of any cogent explanation or documents) that the tasks the hours are claimed for were caused by the alleged breach and has not established that the staff in question would have diverted from their ordinary duties such that there was ‘significant disruption to its business.’ Indeed, the evidence Corelogic has produced demonstrates that the staff in question were, at all times, acting in the course of their ordinary duties and that the Beta Interface was only one of a large number of products and projects they were managing as part of their day-to-day activities.”

She refers to the evidence and that all the Court has are “impressionistic” estimates from Mr Driver. She points out the inconsistencies in Mr Driver’s evidence (which I have noted above). She points to the lack of any documents in particular from late 2023 onwards. She says there is no reasonable excuse for the failure to record and present such evidence. She also notes that some of the labour includes for items which under the Agreement were matters for the Claimant to address such as first line support. Finally she submits there is no evidence at all of diversion from ordinary duties. The tasks were the ordinary tasks of the staff in question.

Miss Briggs raises a case on failure to mitigate loss which is effectively a repeat of her case on waiver/estoppel and her case of moving the Virtual Machines to the cloud without using suitably specified Virtual Machines and/or a failure to optimise the same.

I do not need to summarise her case on exclusion clauses. As I have already noted that does not arise.

Mr Bergin KC submits that the Claimant’s continuing to suffer losses entitled it to a declaration. He does not provide any authority in support of that submission. Miss Briggs notes the lack of any legal basis for any entitlement to such relief which is only to be granted in exceptional circumstances which do not arise here.

In my judgment, the Agreement included an obligation not only to develop an API but also to provide the same in the sense of, as the Agreement itself expressly states, “making it available to the Claimant and Authorised Users”. Read as a whole, the words of the Agreement show that to be the clear objective intention of the same.

Recitals E and F refer to the right to access DataWeb “using the API once developed” (my underlining); Recital F refers to “While the API is being developed” (ditto). The definition of API refers to it “shall be made available to ETech to enable it and Authorised Users to access DataWeb …” The Beta Interface is described as a temporary interface. Clause 3.1.2 grants rights of access via the API from the dates as accepted in accordance with Clause 5 and is ready for use and “thereafter for the duration of the term …”

Clause 6.1.1 refers to “Prior to the availability of the API …” Clause 6.1.2 requires notification that the API “is available” (my underlining) and ready for use.

As against that, Schedule 2, Part 3 does refer to an “agreement” with regard to the replacement of the Beta Interface “with the fully supported API [being] reached at this stage”, the stage being once the definition of the API has been shared with the Claimant.

If it was intended that the further agreement was required before the API was made available, then in my judgment the wording of this part of Section 3 would have needed to be very different and the reference to “made available” in the Agreement would also have to be drafted differently. I also therefore agree with Mr Bergin KC’s submission that the agreement to agree can only be properly interpreted as a matter of mechanics rather than a precondition to making the API available (or, put another way, providing the same).

If Miss Briggs’ construction of the Agreement was correct, that would effectively rob a number of the provisions of any real meaning and would not provide the transfer from the Claimant’s use of the Beta Interface which the Defendant itself accepts it wanted to achieve. Further, if the Development Fee was payable without any certainty that it would produce a tangible result to the Claimant, that would be a most uncommercial result in my view.

Miss Briggs sought to rely on evidence of the negotiations of the Agreement to show that the Agreement did not include an obligation to provide the API. I have already noted that I do not accept that the negotiations are admissible as a matter of law. My reasons for that finding are that it is clear from the authorities and in particular Merthyr Tydfill that the exception to the usual rule is only applicable at all to show the “genesis and aim of the transaction as a whole”. The use to which Miss Briggs seeks to put the evidence is to show that the Agreement did not include one of a number of obligations. That is not the purpose of the exception as explained in Merthyr. Further, whilst one of the aims of the Agreement was, as I have found, for the Claimant to have authorised access to the DataWeb, it was by no means the only one. Another aim was for the Defendant to receive fees for each transaction (which it had not been receiving whilst the Claimant’s access was unauthorised). It is accepted that at the very least the Agreement included a development obligation. It is clear that the question in Merthyr went to the root of the only obligation which would have arisen in the context of an application to pay into an escrow account or not- the contract in that case was called the “Escrow Account Agreement”. Here there is an agreement with a number of obligations on both sides and the exception cannot therefore arise. In any event, even if I did consider the evidence of negotiations, there is no evidence that in the negotiations either party agreed that the provision of an API was not required.

Miss Briggs also argued that the influence of non-lawyers in negotiations prior to the Agreement should lead the Court to construe the Agreement through the lens of technical people rather than lawyers. There are two problems with that submission. First, although non-lawyers were involved in the negotiations around , for example, the contents of Schedule 2 and the Service Fee, there is no evidence that the technical meaning of “development” or “made available” is in any way different as a technical word from the normal meaning of those words. Second, there was no evidence that the negotiations by non-lawyers were in any way focussed on limiting the obligations of the Defendant as now contended.

Further, although of course a party may attempt to develop its case and to put forward and abandon lines of defence, nevertheless and with due respect to Miss Briggs’ persuasive arguments to the contrary it did seem to me that the Defendant has looked to find any possible reason for denying breach of contract in this matter with arguments devised after the proceedings commenced rather than during the course of the Agreement and thereafter. Had the Defendant truly believed an API was not to be provided at all, the lack of that position being made clear to the Claimant during the meetings which occurred in 2019 and/or 2022 is surprising. Further, when the Defendant’s internal emails pointed out the desirability of an API, it is again surprising that the response was not along the lines of, “We don’t need to provide one (yet).”

The answer to Issue 1 is yes. Issues 2 and 3 do not therefore now arise for determination. As Mr Bergin KC acknowledged, they are fallback arguments.

I do agree with Miss Briggs’ submission that the Defendant’s obligation including to provide the API was varied by the Deed of Variation to move the date by which the API had to be provided from March 2019 to 13^th March 2022. I can see no other sensible or commercial reading of the Deed of Variation which “replaced” the original term with a new term. Mr Bergin KC argued, in my view correctly, that the end of the term was the latest date by which an API had to be provided and therefore the date when a breach occurred. If this is correct then the effect of extending the term has to mean that the final date for compliance is also extended.

The answer to Issue 4 is therefore that the effect of the Deed of Variation is to extend the time to the Defendant to develop and provide the API to 13^th March 2022.

Since no API was provided, there is no answer to the allegation of breach of the Agreement as varied in not providing or making available the API by March 2022 and therefore the answer to Issue 5 is yes, save that the allegation of failure to exercise reasonable skill and care is not made out and no evidence was produced in that regard. It is in any event unnecessary to address the issues of whether such an obligation had been implied and breached in view of the breach of the express term which I have upheld.

The Agreement between the parties terminated in March 2022 although neither party realised that until September 2023. Thereafter, the parties operated under the same terms and later a licence until 2025 with increases in the Service Fee. The parties are now continuing to trade and the Claimant continues to have access to the DataWeb via the Beta Interface. The question of whether the breach ( namely the lack of an API) is continuing arises in the context of Issue 10 and I will deal with it under that heading.

I can deal with this issue quite briefly in view of my findings of fact that at no time did the Claimant abandon the requirement for an API and the parties did not share a common understanding to that effect. Miss Briggs argued that the API which the Claimant and the Defendant both discussed was a “non-contractual” API and so the contractual API was effectively abandoned. I do not agree with that submission. As I have already noted, the definition of an API was by reference to the API having the same operability at least as the Beta Interface. What was offered/discussed in terms of the new Hub being developed by the Defendant included an API and that is sufficient to amount to mention of the “contractual” API in my judgment. I also accept Mr Bergin KC’s submissions as to the effect of Clause 23 on the waiver argument. Miss Briggs’ answer to that was to fall back effectively on estoppel. That fallback fails on the facts. I again note my finding that in any event even if representations were made there was no detriment identified by the Defendant’s witness evidence or in the documents before me.

The answer to Issue 6 is no.

The types of loss claimed by the Claimant are for the costs it says have been incurred in continuing to operate with the Beta Interface rather than through an API. They fall into two categories: the Virtual Machines which would fall away with an API solution and labour costs of dealing with the Beta Interface which it is said would not have been incurred with an API.

Miss Briggs says that as a matter of law both these types of loss cannot be recovered because on the correct construction of the Agreement (even with the obligation to provide an API which was of course disputed) in any event the parties did not foresee or the Defendant did not assume responsibility for losses after the end of the Agreement in March 2022.

I have set out my views of the effects (if any) of the SAAMCO and The Achilleas on the principles in Hadley v. Baxendale at Paragraph 72 of my Judgment. The costs of continuing to operate the Beta Interface are not a different or unusual type of loss. They are the direct cost of continuing with the temporary Beta Interface mechanism which the API was intended to replace. On the basis that the Defendant was obliged to provide an API by the end of the extended term then I cannot see how such an obligation would not also carry with it an obligation to pay damages for costs proved to have been incurred in not providing the same as a matter of course and as an obvious assumption of responsibility for the same. Further, there has been no evidence in this matter ( unlike in The Achilleas) to show that the losses claimed are unusual or exceptional.

The argument that the parties did not foresee any loss extending post the Agreement is ingenious and has some force, but I do not accept it. It was known by both parties and indeed was part of the reason why both parties entered into the Agreement that as a monopoly provider the Defendant could not refuse to allow the Claimant to access DataWeb for its business. It follows that the Agreement even if terminated would not terminate the Claimant’s right to access DataWeb. If, as should have happened (but did not), the Defendant had by the end of the Agreement provided an API to the Claimant, the Claimant’s access thereafter would be via an API and there is no reason to think or evidence to suggest that such a route would change back to a Beta Interface (not least because the Defendant’s interest was to avoid using a Beta Interface if possible). It follows, therefore, in my judgment that both parties considered that the access would be via an API from March 2022 and therefore loss could flow from the breach which had by then occurred, access not having been provided.

The argument that the Court needs to consider whether a termination for convenience on six months’ notice means there can be no loss (bar a further six months, although Miss Briggs did not concede that) is also ingenious, but is in my view again incorrect. There is no evidence that on such termination the Claimant’s access to DataWeb would in reality cease, indeed as I have noted in the previous paragraph, the evidence is that access could not cease. It follows that once the breach arises the loss also flows even if the Agreement itself is terminated. The termination clause in the Agreement expressly states at 19.3.3,that it does not affect pre-existing claims existing at or before termination.

As to the claims for Virtual Machines and as I have already found, it is unchallenged that an API would have made the Virtual Machines redundant. The methodology and calculation of the Virtual Machine loss was not challenged by contrary evidence or by cross-examination. Miss Briggs’ argument against the award of Virtual Machine costs is that on the expert evidence some “hosting” costs would have been incurred in any event. I have already explained why I do not consider the expert evidence is admissible on this issue and in any event is of no assistance to this argument. The claim was clearly made on the basis of the Virtual Machine costs, not “hosting” costs generally. The argument that moving from a data centre to a cloud-based Virtual Machine was unforeseeable and/or broke the chain of causation is in my view also incorrect. The claim is for costs which would not have been incurred had the API been provided. The precise additional cost type is not required to be foreseen in my view. Parties who are both knowledgeable of the IT industry and the constant changes in that industry must be taken to have foreseen that the Beta Interface would need some form of support machinery which the API does not require. The argument that Virtual Machines are from a decision to increase customers seems to me to be wholly irrelevant. It must be foreseeable that additional customers would use the Claimant’s product and that hosting costs would thereby increase as would the Fees paid per transaction to the Defendant. It follows that I do award the Virtual Machine costs claimed in the slightly lower sum of £332,405.44. I have deducted the costs for January, February and March 2022 in view of my answer to Issue 4.

As to the claim for labour costs, I accept Miss Briggs’ submission that the costs are not properly proven to the requisite standard. I have found that Mr Driver did exaggerate his evidence on occasion which means I need to be cautious in accepting his evidence where there is no contemporaneous or other supportive evidence. He also accepted that no timesheets or other records were taken from 2023 when the claim had been threatened. No proper explanation as to lack of timesheets or other records has been provided. Mr Bergin KC said that no records were taken “as expected”, but I do not agree that a lack of records is to be expected. Even if such records are not kept as a matter of course they ought to be kept to support a claim for damages and if they are not then a claim may fail to be proved. I also agree that as my quotes from Mr Driver’s evidence demonstrate, the figures are “impressionistic” rather than accurate despite his confidence in his own estimates. I also note that even as close to trial as the Re-Amended Particulars of Claim the figures are given in a range. Like HHJ Keyser KC in the Zenith decision, I find it impossible to assess the “minimum” extra labour costs other than in a very modest figure which itself would only be properly regarded as “arbitrary”.

It follows from these findings that the question of the construction of “fully supported” which arose in deciding the issue of what if any labour would have been incurred if an API had been provided does not arise. I would, however, have found , had I needed to do so, that the meaning of “fully supported” is that contended for by Mr Bergin KC. I have already noted Mr Barnett’s cross-examination in that regard. The experts’ view that some costs would fall on the Claimant in any event were not sufficiently particularised to allow any proper consideration of whether the costs Mr Driver claims were within the experts’ views. I have also already decided that the experts’ views are not admissible for the quantum issues. Whilst I note the expert views on the normal position, as they properly made clear, the question of the meaning of the words is for me to decide, not them. In my judgment, “fully supported” is a clear statement that any ongoing costs fell to the Defendant, not the Claimant.

I do not award any sums for the labour costs claimed.

As to Issue 8, there was no evidence given by the Defendant or the experts as to any benefits with a material value for which the Claimant should give credit against its claim. The answer to this issue is no.

In view of the sum I have awarded for the Virtual Machine costs, Issue 9 does not arise. I do not need to consider the “reasonableness” of the Terms and Conditions (or indeed Mr Bergin KC’s position that there is nothing to consider absent pleadings/evidence from the Defendant) and I decline to do so.

Whilst I accept that the breach of the Agreement as varied was/is continuing in the sense that the claim for damages for breach continues post March 2022, because no API has yet been provided, I do not consider in the exercise of my discretion that a declaration of a right to be indemnified for the indefinite future should be provided. That is accepted to be a remedy which is not only discretionary but also for exceptional circumstances only. Such exceptional circumstances have not been identified and in any event the future development of the parties’ ongoing relationship is unknown and it is at least possible that an API (or successor system) could be part of a new agreement between the parties in the short-term or thereafter and in the current situation it is simply an exercise in speculation to give an open-ended declaration to the Claimant and I therefore answer Issue 10 no.

The Claimant’s claim is successful in the sum of £332,405.44. I invite the parties to agree consequential issues, but failing agreement I will hear them on a future date.