Capita’s counter to the ESS allegations: Part II

We now have sight of the court documents outlining Capita’s response to the ESS claims of copyright infringement and breach of contract in relation to the provision, through Capita, of the SIMS software to schools in Northern Ireland.

This dispute arises over claims by ESS that Capita has continued to provide SIMS services to schools in Northern Ireland despite the contract with ESS for this having expired in March this year. Capita refutes this and states that a renewal was agreed until March 2024.

Capita starts by alleging that the SIMS software licences for EANI (Education Authority Northern Ireland) were ‘perpetual licences’ which therefore could not ‘expire’ as claimed by ESS. They further allege that EANI saw this software as being so important to the provision of education services to schools in Northern Ireland that they requested that the source code be placed in Escrow in case of disputes etc.

Capita further states that, in the procurement of Capita’s education services business by Montagu (ESS), a clause was included such that all parties “should co-operate with one another for the purposes of submitting a renewal proposal for the contract with EANI” and that they would all “use their reasonable endeavours to negotiate with one another in order to conclude such agreements as were necessary to effect such renewals.”

Capita also alleges that the agreements with ESS were ongoing and had been renewed several times and that by alleging they had expired ESS are not “acting in good faith.

Capita’s defence alleges that in or about July 2021 they commenced discussions with ESS for an extension to the contract to provide SIMS services for EANI, and that in February 2022, following negotiations, an agreement was reached for this.

In particular, they state that at a meeting held between Capita, ESS and EANI (at the request of ESS) on or about 7th December 2021, ESS’s then CEO, Mr Brant, expressly represented to Capita and EANI that ESS would continue to provide the services to Capita so that they in turn could continue to provide these to EANI for the two-year extension period (April 2022 – March 2024). Capita also allege that Mr Brant further stated that ESS’s Commercial Partners Manager would provide Capita with the commercial terms for the extension.

According to Capita, an email on 24th December 2021 from ESS’s Commercial Partners Manager entitled ‘NI 2 yr extension price for submission to Capita’ was sent to Capita providing the commercial terms for the two-year extension period, including ESS’s proposed pricing.

These, Capita state, were then accepted in a telephone call on 1st February 2022 and, in accordance with the SIMS contract, a PO was issued by Capita for the first year extension period. Capita states that this was for one year only as the pricing had to be calculated each year based on the total pupil numbers, which changed annually.

Capita then allege that in October 2022, ESS in an email stated that the contract was due to end in March 2023 with no provision to extend. This was disputed by Capita who explained that they had an extension to the contract until March 2024.

Allegedly, at this time, ESS had commenced negotiations directly with EANI as to the terms uopn which ESS might provide the SIMS services directly to EANI and Capita allaeges that these negotiations continued until at least March 2023.

It is not our place to favour either side, or even to proffer an opinion – we’ll let the Court decide. One thing, however, seems pretty clear and that is that any relationship between ESS and Capita appears to be irrevocably broken!

With the c2K / EENI tender for core services currently going through procurement, one wonders if the relationship was damaged by Capita IT Managed Solutions (formerly Northgate) deciding not to include SIMS in its bid – although this is based purely on rumour and speculation, which we’ve heard a few times from differing sources.

It’s interesting to note that the tender for Strategic Partner Services and Schools Management System Solution for Northern Ireland schools, was published on the 11th May 2022, and the dates mentioned in the court papers suggest the two organisations were in discussion for the current contract extension from February 22, so something must have gone wrong…….

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