In the end, Mr Justice Ramsey has produced the judicial equivalent of War and Peace – 468 pages of decisions and explanations. Here is one judge who is not intending to be overturned – his judgment is clear, well argued and detailed. I received a copy (thanks to some of the barristers involved!) on the day it was issued, and have read it several times – once at speed, then with post-its, highlighter and pen at the ready. I read some excellent notes by other lawyers, basically with the conclusions that (i) this case doesn’t change the existing law and (ii) there isn’t much for the service providers to worry about.

Broadly I agree, but I wanted to write a slightly different note, which is where the idea of creating adiagram with notes came from. I always find that it helps me to understand a complex deal if I draw a picture showing the parties involved and the relationships (whether corporate or contractual) between them. I then tried to add in a time-line, as I went through the judgment (which has some very useful chronologies and summaries throughout), to get an idea of who said what to whom and when.

I am afraid the diagram is a bit of a monster, rather more crowded than I wanted – one is supposed to make sure that there is a lot of white space on slides, not cramped text! I also wanted to set out my notes on it on one page, so that the diagram and the notes could be read together. I hope that people will find the end product useful.

So much of what went wrong in this case is familiar: a salesman, desperate to land a sale, over-promises and is not tempered by the views of those who actually have to deliver. The parties try to sort out the mess between them, at management level, and enter into variations and memoranda of understanding to avoid disaster. However, this was a deal doomed from the first, because the salesman concerned was not just over-enthusiastic, but deliberately deceitful. It is clear that he failed to carry out the proper internal analyses of what resources and time would be required to deliver the contract, then brow-beat those who tried to question his views. The fact that he lied freely about his qualifications and invented a false e-mail trail to cover up having sent out the wrong pricing schedule just added to his lack of credibility.

My contacts at service providers tell me that this could never happen to them – they vet all their senior staff and have proper internal procedures for putting together bids and managing the bid process and costing. Certainly, on the occasions that I have been involved from the provider’s side myself, there may have been strong leadership in the bid-team but there was always healthy debate about the form of the bid - or whether it should be made at all.

On a wider level, I was pleased to see a clear direction that aggrieved customers should not spend too much time or money riffling through all the pre-contractual documents and PowerPoint presentations and e-mails to manufacture a cause of action. I have frequently acted for customers who want to renegotiate or even terminate a services deal, and who assure me that the service provider is in breach of contract and that they have a strong case. As you will hear if you listen to my podcast on “Renegotiating Technology Deals”, part of Rob and my role is to filter the complaints and to assess the real legal and commercial issues, so that the parties can have a more constructive discussion – or, at least, to isolate the issues which are really in dispute.

Rory Graham, April 2010