An interesting contract clause led to an interesting case and could have a very interesting outcome. The case involved a contract for a new tramway operating system for the trams in Manchester and the parties got into a dispute, with a claim of £42m being intimated by the contractor. The claim hasn't been finally determined before any tribunal as yet, but was presented to the employer for consideration and elements of it were referred to adjudication.

The folks at Transport for Greater Manchester had been clever though and had included a clause allowing them to request the contractor to provide information, records or documents relating to the Contract. This even included subcontractors documents but crucially the contractor's internal information will be laid bare and will either serve to support the claim or, as presumably Manchester hope, undermine it.

The court upheld the clause and said that the contractor was in breach for refusing to comply with Manchester's request, ordering specific performance (which is a remedy available where damages are not appropriate following a breach), being the release of the majority of documents requested. Some requests were too vague however and some documents remained privileged from disclosure.

The clause has therefore given Manchester a tactical advantage and an ability to cross-check the claim against the underlying documents which few responding parties in adjudication ever see and which only come to light relatively late in the day in court proceedings.

It certainly seemed to help that Manchester was a public body and the scale of the overall project was enormous, making accountability and auditability of prime importance. It doesn't seem likely in any event that most contractors would accept such a clause without putting up a fight.

Transport for Greater Manchester v Thales Transport & Security Ltd [2012] EWHC 3717 (TCC)