Technology

Written by Lauren Kerr

Key developments in 2024 

There have been a range of court judgments in recent years concerning the interpretation and scope of contractual clauses intended to limit liability.  
In the case of Tata Consultancy Services Ltd v Disclosure and Barring Service [2024] EWHC 1185, Tata Consultancy Services (TCS), a provider of business process outsourcing and IT services, had entered into an agreement with the Disclosure and Barring Service (DBS) to deliver a modernised IT system aimed at enhancing DBS's processes. The project was unsuccessful, leading TCS to claim £110 million in damages from DBS for significant delays and breach of contract. In response, DBS counterclaimed for losses due to delays and defective software.

The judgment concerned in part whether a limitation of liability clause operated across all claims in the aggregate or provided a separate limit in respect of multiple individual claims.  

The judgment served as a reminder of the importance of clarity in the drafting of limitation of liability clauses.  Ultimately, it was held that the limitation clause applied to all claims in the aggregate.  That was supported by the inclusion of the words "total aggregate liability" and the absence of the words "per claim". This conclusion was not displaced by the reference in the clause to a cap consisting of fees paid during the 12 month period immediately preceding the events giving rise to the claim.  It had been argued that this would necessarily involve a separate limit for separate claims as the fees paid could be different depending on when the events giving rise to each separate claim occurred.  The Court accepted that the clause could have been clearer but gave weight to the clear meaning of the words "total aggregate liability".  The interpretation of limitation of liability clauses can have a significant effect on the viability and quantum of the claim.  It is unlikely that this is the last case involving a detailed examination of the precise meaning of such a clause. 

What to look out for in 2025

On 23 October 2024, the Data (Use and Access) Bill ('DUA Bill') was introduced, replacing the earlier Data Protection and Digital Information Bill ('DPDI Bill') which was prorogued, following a parliamentary change. Initially presented in the King's Speech as the 'Digital Information and Smart Data' Bill, the newly renamed DUA Bill introduces new rules for data sharing across sectors such as energy, finance, and law enforcement, aiming to enhance efficiency and reduce costs.

Two notable examples are (1) Open Banking, which allows users to consolidate account information from different banks into a single dashboard, and (2) a proposed data-sharing model within the energy sector which could provide customers with the ability to compare utility prices, find better deals, and reduce their energy use.

The DUA Bill will ensure that any data shared under these 'Smart Data' schemes is secure and will ensure that (i) who can access the data, (ii) how data is provided and (iii) the security measures in place, are regulated to a high standard. The Government says that the DUA Bill will "unlock the secure and effective use of data for the public interest" and boost the UK economy by £10 billion over the next decade.  The DUA Bill has been published, but still has to go through several stages before enactment. 

The Government says that the DUA Bill will "unlock the secure and effective use of data for the public interest" and boost the UK economy by £10 billion over the next decade.  The DUA Bill has been published, but still has to go through several stages before enactment. 

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