IT disputes almost always arise from a project that goes off track. Non-compliant deliverables, cascading delays, budget overruns, failed acceptance testing, a blocked SaaS or a blocked integration: the stakes are often high, because the system at issue is vital to the business. We defend both clients harmed by a failed project and providers facing a client acting in bad faith.
Who we assist
We act for user companies (project owners, maîtres d’ouvrage) as well as for providers (IT services companies or ESNs, software publishers, integrators). The client wants a working system, compensation for its loss or a way out of a deadlocked contract; the provider wants recognition of the work actually done and of the client’s role in the difficulties. An IT dispute is, almost always, a matter of evidence.
Characterising the breach
The first step is legal: characterising what is being complained of. Is it a failure to comply with the specifications, a latent defect, a breach of the duty to advise, or a simple delay? Contractual liability is governed by Article 1231-1 of the French Civil Code (Code civil): the debtor is liable for non-performance or delay “unless it shows that performance was prevented by force majeure”. The warranty against latent defects (Article 1641), which is specific to contracts of sale, offers another basis, with different time limits and effects.
Why evidence decides an IT dispute
In an IT project, the truth lies in the records: specifications, steering committee minutes, acceptance reports, email exchanges, incident tickets, technical logs. Building a solid body of evidence, often supported by an expert assessment, determines the outcome. We help you preserve this evidence as soon as the first difficulties appear, before it disappears.
The parties’ mutual obligations
The provider owes a duty to advise and warn; the client owes a duty to cooperate. A project rarely fails because of one party alone: liability is frequently shared. Anticipating this reality makes it possible to build a realistic strategy, whether the aim is to obtain compensation or to limit it.
Possible outcomes of a failed IT project
Depending on the seriousness, several routes are open: a negotiated resumption of the project under a settlement agreement, termination of the contract with restitution, compensation for the loss (extra costs, operating losses, cost of a third party taking over), or enforcement of contractual penalties. Court-appointed expert proceedings are often the decisive step, because they establish liability on a technical basis.
An illustrative example of what is at stake
A company rolls out a new ERP; after several postponements, acceptance testing fails and operations are disrupted. The client seeks termination and compensation for its operating losses; the provider relies on the changes in scope requested along the way and on the client’s failure to cooperate. The outcome will depend on a precise reconstruction of the project and on how the breaches are allocated, issue by issue.
Quantifying the loss
Assessing the loss is often the crux of an IT dispute. It may cover the extra costs incurred in trying to save the project, the cost of a new provider taking over, operating losses due to the system being unavailable, contractual penalties and, sometimes, reputational harm. Each head of loss must be documented and linked to a specific breach: a poorly substantiated loss, even a real one, is difficult to recover. Conversely, a provider facing a claim must check that each head of loss is real and attributable to it, and whether there are limitation of liability clauses, whose validity is assessed in the light of the essential obligation of the contract.
Mediation, arbitration or the courts: choosing the right route
Not every route suits every case. Negotiation under a settlement agreement can save a relationship and a project when that is still possible. Mediation, faster and confidential, suits disputes in which the parties keep a common interest. Arbitration, often provided for in major contracts, offers technical justice but at a high cost. Finally, the state courts remain essential for expert measures and deadlocked situations. The choice of route, from the dispute resolution clause onwards, determines how quickly and at what cost the dispute is resolved.
Points to watch
- Preserve the evidence as soon as difficulties arise (reports, emails, tickets).
- Do not pay, or sign an acceptance with reservations, without weighing the consequences.
- Follow the formal notice procedures before any termination.
- Assess your own share honestly (cooperation, changes in scope).
- Plan for reversibility and continuity of service during the dispute.
How we act
- Review of the file and legal characterisation of the breaches.
- Pre-litigation strategy: formal notice, settlement agreement, mediation.
- Assistance during court-appointed IT expert proceedings.
- Actions for termination, damages and indemnification.
- Defence of providers against disproportionate claims.
Frequently asked questions
Can I stop paying if the software does not work?
It is risky without a legal framework: it is better to send a formal notice, document the non-compliance and, where appropriate, rely on the defence of non-performance (exception d’inexécution) or on termination. An unfounded unilateral suspension of payment may backfire on you.
How long does an IT dispute last?
It varies, and the pace is often set by the court-appointed expert proceedings. A negotiated settlement remains possible at any time and is frequently preferable.
Checklist when a project is in difficulty
- Gather and preserve the evidence: specifications, minutes, reports, emails, tickets.
- Characterise the breach in legal terms (compliance, latent defect, duty to advise, delay).
- Send a formal notice in due form before taking any unilateral measure.
- Assess your own share (cooperation, changes in scope).
- Quantify each head of loss and link it to a specific breach.
- Choose the appropriate route: negotiation, mediation, arbitration or court-appointed expert proceedings.
Does a limitation of liability clause always protect the provider?
Not always: a clause that deprives the provider’s essential obligation of its substance may be deemed unwritten. Its validity is assessed case by case.
Can the provider rely on changes in scope to escape liability?
In part: change requests that were not recorded or not costed may explain some delays. But the duty to advise requires the provider to warn of their consequences. How liability is shared depends on how well these requests were tracked.
Official sources
- Article 1231-1 of the French Civil Code, contractual liability: Légifrance (in French)
- Article 1641 of the French Civil Code, warranty against latent defects: Légifrance (in French)
Every situation is different and we make no promise of outcome. When an IT project has failed, our digital law lawyers assist you, working with our corporate team.
