[Continued from yesterday – Fujitsu’s protracted legal dispute with NHS CfH and the Department of Health is circumscribed by the government’s unwillingness to see any major IT legal dispute go to open court and a judgement]
A senior lawyer, who has decades of experience of IT litigation, says he is unaware of any central government department taking a major IT dispute to trial and judgement.
There is evidence of the government’s reluctance to allow senior civil servants to take the stand in an open court. In April 2002 a High Court hearing which had lasted 44 days ended suddenly when airlines running the loss-making National Air Traffic Services (Nats) agreed to pay millions of pounds to computer services supplier EDS.
The settlement came on the day the most high-profile witness in the case, Civil Aviation Authority chairman Sir Roy McNulty, was due to take the witness stand. He was expected to be asked about evidence he gave to the Commons transport committee when he was chairman of Nats.
EDS had brought the case against Nats.
It’strue that lawyers advising Fujitsu are unlikely to say: “We have to payFujitsu’s claim because we can never let this go to court.” On theother hand, officials know their ability to counter-threaten Fujitsu isweakened by the government’s known reluctance to allow civil servantsto be cross-examined in the witness box about how things work and don’t work inside Whitehall departments.
So “Fujitsu versus the Department of Health” is not likely to appear on any daily court list.
The Department of Health is defensive andsecretive at the best of times – a point made to the House of Lords’Communications committee when it held an inquiry into the Government’srelationships with the media.
Butthe DH and CfH areparticularly secretive and defensive over the National Programme forIT. They haven’t published any of their own reviews into the scheme,though they did, to give them credit, publish 31 Gateway reviews onthe programme.
The trouble from the government’s point of viewis that Tony Blair, Gordon Brown and former health ministers whoinclude Lord Hutton, Lord Warner, Caroline Flint and Ben Bradshaw havevigorously defended the NPfIT in Parliament, in public statements, orat press conferences.
So NPfIT officials and ministers willnot welcome a court hearing in which claims and counter claims aboutthe UK government’s largest IT investment are aired in front ofjournalists [and in the run up to a General Election].
Being more than a year since the contract was terminated, the two sidesare likely to have been through the pre-litigation stages which arestipulated in the contract, such as arbitration.
Sowhere can their mutually-respected antagonism go now? A settlement may come shortly before next year’sGeneral Election, and be kept quiet. The Tories, if they win, mayreveal the amount because they would have nothing to lose by thepublicity.
All of which leaves Fujitsu holding all the legal aces. The same goes for any other IT suppliers thatfind themselves in dispute with central departments.
It’s a pity the mandarinate has so much to hide from the IT industry,the public, Parliament, and the media that its unofficial motto onlegal disputes is: “Sue us and we won’t see you in court”.
NPfIT board minutes in which termination of Fujitsu contract is reported – NHS CfH website
Gordon Brown defends NPfIT – IT Projects blog