[2010] EWHC 909 (TCC)

These proceedings were brought following a revised tender process - the need for the second process being caused by a challenge to the original one by another tenderer. At the fi rst case management conference, Durham sought directions about disclosure and the inspection of documents. Durham claimed that disclosing these documents would compromise their legitimate commercial and public interests and also their ability to re-run the procurement process. Durham identifi ed two particular categories:

  1. Material provided by third parties, including other tenderers - which Durham considered may be confi dential; and
  2. General material, the disclosure of which would prejudice Durham’s ability to re-run the procurement process.  

The question before Mr Justice Ramsey was which of these categories of documents, if any, should the claimants be allowed to inspect. In the fi rst category, the Judge held that the ultimate test is whether disclosure and inspection is necessary for disposing fairly of the proceedings. Though a document may contain confi dential information, that is not, in itself, a reason for not providing such documents on disclosure. It is necessary to balance the rights of third parties to confi dentiality, against the necessity for the documents to be provided for the purpose of a fair trial. Here, without disclosure of this material, the claimants would not be able to properly put forward their case at trial.

With the second category, whilst Mr Justice Ramsey did accept that there may be potential problems in re-running the procurement process, he did not believe that these were insurmountable. However, the Judge did agree that certain safeguards were necessary to limit the access by the claimants to the documents. He therefore ordered that the individual directors or personnel of the claimants be permitted to read specifi c documents (which he then went on to list), on the basis that they were read in the presence of their solicitor and they were not to be provided with copies or make notes other than notes which were provided to their solicitors. Additionally, the parties were to agree a procedure if any redactions were to be made to any documents.