The interplay between a discovery application and an application to lift the automatic suspension is a topic which regularly features in procurement litigation. It was given detailed consideration in the recent decision of Alstom Transport UK Limited v London Underground Limited.
By proceedings commenced on 11 May 2017, Alstom Transport UK Limited, (Alstom) sought to challenge the outcome of a tender process in which the defendants, London Underground Limited, (LUL) announced an intention to award to Bombardier a contract for the supply of a new traction system for its Central Line fleet.
The commencement of the proceedings operated automatically to suspend LUL’s ability to enter into the proposed contract. LUL applied to the court to lift that suspension, while at the same time Alstom made an application for specific disclosure of a large number of documents. Alstom contended that the disclosure application should be considered prior to that of the suspension hearing.
As a result, the Court was required to consider what application ought to be considered first.
The Court held that, in order to do justice to the application to lift the suspension, it would set a timetable allowing for the hearing of the application for specific disclosure first. This was deemed not only to be in accordance with the relevant authorities but also the best way to ensure that the decision on the important application to lift the suspension was reached on as full a basis as possible. Further to this, the delay was deemed not to cause LUL any prejudice and was proportionate and reasonable in all the circumstances. LUL offered to argue its case on the application to lift the suspension on a more limited basis but the court deemed it “wrong” to limit LUL in this way stating that “it might produce an artificial result and would be impossible to police in any event”.
Accordingly, the Court held that LUL would obtain an unfair advantage by “refusing to disclose the documents sought, and then relying on the absence of such documents to argue [on the application to lift the suspension] that there is no serious issue to be tried.”
While the Court held that it was necessary to allow the hearing of the application for specific disclosure first, it must be emphasised that this was a subjective approach, with the judge stating that the approach would ultimately depend on the facts of the case.