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TONY SYKES of The IT Group has been instructed in many groundbreaking IT disputes. Here he sets out some observations and opinions on the types of disputes, why they occur, and gives some practical advice on how to manage the cost of expert assistance.
FORENSIC COMPUTER analysis and early document review can sometimes seem expensive in the early stages of an IT dispute; but in reality, in many cases, the really high costs occur later in the process and having the results of forensic computer analysis and a well researched expert opinion on the documents and disclosure can lead to huge savings in the long run.
In IT contracts for bespoke development, the expectation of both parties is often much better aligned at the outset. There are few projects where the parties enter the contract and start the project design work in the knowledge that what they are designing or what is being designed for them simply will not satisfy the requirement.
Problems usually start to emerge as the project progresses on two key fronts: the detailed interpretation of the requirements and how these translate in real terms to people operating the system, and the timescale to implement the project. Neither of those is probably a great surprise, but from experience of a large number of high technology disputes, to me the most surprising aspect of the development of disputes is the fact that no-one notices or is able to interpret the reports that tell them that the project is going to under-deliver in terms of practical functionality or is simply going to be unacceptably late or over budget.
When an IT dispute becomes frustrated and a dispute looms, the areas of dispute are generally issues that the project team has suffered with for many months.
The effect of that is the parties are probably already in an entrenched position and this can skew the early positions taken by the parties and their legal teams.
The project team, having lived and breathed the detail of the project, often for many months and sometimes years, have a great understanding of the programme, tasks and deliverables but are simply too close to the project to have a balanced view of the terms of the contract or the general wider aspects of client expectation, project deliverables and cost. Conversely, some of the key stakeholders are too far removed from the reality and are not afforded a practical means to be sufficiently involved to make considered judgments or to offer reasoned and helpful advice.
It is a common reality in IT projects that the client has much higher expectations of delivery than could ever be delivered by technology alone and this frequently translates into a dispute where blame is laid firmly at the door of the supplier.
In reality the successful delivery of large bespoke IT projects requires significant buy-in from the client, not just at project level where it is usually evident in abundance but also in the business itself, deep in the roots of people, processes and culture.
Engaging the services of an IT expert with expert witness experience in major cases early in a dispute can often put a project back on track and avoid litigation.
If litigation cannot be avoided then the objective and dispassionate views of an independent expert can sort the wheat from the chaff and thereby highlight the areas of the dispute that present the strongest case technically and provide the party with the most leverage for dispute resolution at mediation or arbitration.