Amaryllis Ltd v HM Treasury
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 2009 |
| Neutral Citation | [2009] EWHC 1666 (TCC),[2009] EWHC 962 (TCC) |
| Docket Number | Case No: HT-08-167 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 13 July 2009 |
[2009] EWHC 1666 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
Before : Mr Justice Coulson
Case No: HT-08-167
Miss Sarah Hannaford QC and Miss Fionnuala McCredie (instructed by Messrs Palmers) for the Claimant
Mr Michael Bowsher QC, Mr Philip Moser and Ms Fiona Banks (instructed by Treasury Solicitors) for the Defendant
Hearing Date: 2nd July 2009
Mr Justice Coulson :
THE APPLICATIONS
The factual background to this claim for damages, said to be worth some £11 million, is set out in my earlier Judgment, neutral citation number [2009] EWHC 962 (TCC), in which I dismissed the Defendant's application to strike out the claim. The trial on liability is due to commence for four days on 20 th July 2009. At very much the eleventh hour, disputes have arisen as to the adequacy of the Defendant's disclosure.
The Defendant's List of Documents was dated 3 rd April 2009. The documents were divided into Appendix A (those documents of which the Defendant did not object to inspection), and Appendix B (those documents in respect of which objection to inspection was taken). The relevant documents in Appendix B for present purposes were identified as follows:
“1. Pre-tender supplier meetings
2. Pre-Qualification Development
3. Initial Business Case to commence the tender exercise
4. Contract Notice development
5. Stakeholder correspondence
6. Questions and Answers to matters posted on the Bravo Solutions Tender Portal from 4 th December 2007 and continuing up to and including 22 nd May 2008.
7. Pre-qualification Evaluation
8. Pre-qualification Report (original version and c.f. that redacted and sent to the Claimant following a request for information made under the Freedom of Information Act).”
The reasons for objection were also set out in Appendix B. They were stated to be as follows:
“i) that inspection of the documents would damage the public interest. Disclosure of that information would seriously if not irreparably damage the reputation of the Defendant leading to a loss of confidence in the wider market place if information that the Defendant had received from other potential suppliers at the PQQ stage were to be released to a competitor.
ii) that the matters contained are highly commercially sensitive and confidential and to disclose them to a competitor would undermine not only the present procurement decision but also HM Government's public procurement processes generally, all of which being clearly damaging to the public interest;
iii) that the documents are irrelevant to the litigation given the nature of the allegations as pleaded and/in the alternative the alleged breaches complained of by the Claimant are particular to its own circumstances so that the details of its competitors bids are also irrelevant to the claim.”
The Claimant's solicitor did not seek to challenge this stance until the letter of 19 th June 2009. A week later, on 26 th June 2009, the Claimant issued an application pursuant to CPR 31.12 seeking an order for disclosure and inspection of a large number of documents, principally related to those categories of documents identified in Appendix B of the Defendant's List. A date of 2 nd July 2009 was fixed for the hearing of that application.
On 1 st July 2009, the Defendant issued a separate application for an order pursuant to CRP 31.19 that the Defendant be permitted to withhold inspection or disclosure of the documents in Appendix B of the List because “disclosure would damage the public interest.” That application was also heard on 2 nd July.
At the end of the hearing on 2 nd July 2009, I indicated to the parties what documents should be disclosed and in what form. There was not time on that occasion to provide my reasons for that order. Those reasons are therefore set out in this Judgment.
I set them out in this way. It seemed to me that, despite the focus of the argument being on the public interest issue, the starting point for any investigation under CPR 31.12 are the issues of relevance and proportionality. Accordingly, I deal with those matters first. Thereafter, I deal with the arguments as to public interest immunity/confidentiality. I am again grateful to leading counsel on both sides for their helpful submissions.
RELEVANCE AND PROPORTIONALITY
Principles
CPR Part 31.6 requires a party to disclose only those documents on which he relies and those documents which either support the other party's case or adversely affect his own case: see Harrods Ltd v Times Newspapers Ltd [2006] EWCA Civ 294. That is what is meant now by relevance, and it is a more restricted category of documents than that which used to be required under the 'train of enquiry' category referable to the decision in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) L.R. 11 QBD 55, CA. In addition, orders for disclosure or inspection should always be proportionate, in accordance with the overriding objective at CPR Part 1.1.
The Factual Background
This is a claim based on alleged breaches of Regulation 4(3) of the Public Contracts Regulations 2006. The particular procurement process involved the supply and installation of furniture for a variety of Government departments. The Claimant maintains that the Defendant failed to deal with its first stage tender (referred to below as the PQQ, the pre-qualification questionnaire) in an equal, transparent, and non-discriminatory way. There are four essential strands to this argument. First, the Claimant complains about the decision to allocate no marks at all to Section F of the PQQ, dealing with previous experience and comparable contracts, particularly in circumstances where the PQQ indicated that all Sections would be marked. This is an area where the Claimant believes that it would have scored highly. Secondly, the Claimant complains that the Defendant evaluated the PQQ responses without informing the tenderers of the relative importance it ascribed to each question/topic. Thirdly, there are complaints about the Defendant's evaluation of the environmental management sections of the PQQ. Finally, the Claimant complains that it was awarded zero marks for Section A of the PQQ, on the sole basis that it was a supplier of furniture rather than the manufacturer of the furniture itself. The essential complaint here is that the Defendant had an unstated – and unfair —preference for manufacturers rather than suppliers.
Particular Pleaded Issues
In the majority of procurement disputes arising out of the treatment or evaluation of one company's tender, comparisons with at least some aspects of the tenders of other third party companies are almost inevitable. Whilst some of the allegations in the present case, summarised above, might not require such a comparison exercise, others plainly do. For example, as Mr Bowsher properly conceded, under paragraph 10 of the particulars of claim, the alleged breach at sub-paragraph (3)(b)(v) —timber sustainability —and sub-paragraph (4) —business activities —appear to raise a direct comparison issue.
Moreover, I consider that the Defendant's defence also puts in issue questions of comparison. By way of example only, I refer to paragraph 19.6 of the defence which pleads:
“If marks had been allocated for provision of the 5 relevant contracts, as required in Section F, the Claimant would have been awarded fewer marks than the twelve successful candidates invited to tender for Lot 1, because the claimant failed to provide the required information, while the successful candidates all did provide the required information”.
It seems to me clear that this averment is raising an issue which can only be determined by a comparison between the Claimant's PQQ and those of the other tenderers.
Likewise, at paragraph 34 of the defence, which deals with the environmental management criticisms, the Defendant pleads:
“None of the candidates had an EMAS system in place, and all candidates (including the Claimant) were awarded zero for question 8.1. This Question had no effect on the result of the competition.”
Again it seems to me plain that this averment expressly puts in issue the contents of the other PQQ's; it will be necessary for the court to consider those other PQQ's in order to see if the Defendant is right to say that all applicants received zero marks for this section of their PQQ.
For these reasons, so it seems to me, the other PQQ's and the Defendant's evaluation regime are prima facie relevant documents in these proceedings. With that in mind I then turn to the individual categories of documents sought.
THE DOCUMENTS SOUGHT
Introduction
The documents sought fell into a number of clear Categories. Category 1 included those documents which have previously been provided by the Defendant to the Claimant, albeit in a redacted form. Category 2 is made up of the eight categories in Appendix B of the Defendant's List (paragraph 2 above). Category 3 is said to include documents relating to the eight categories in Appendix B, although they are not separately identified in Appendix B. Category 4 is a miscellaneous grouping of other documents.
Category 1: Documents Previously Provided In Redacted Form
a) The Marked Version of the Claimant's PQQ
There is, I think, no doubt that the marked version of the Claimant's PQQ —that is to say, the document evaluated by the Defendant, and from which this action stems —is a highly relevant document. It should be disclosed in unredacted form. This was not opposed by Mr Bowsher on behalf of the Defendant.
b) The Defendant's PQQ Evaluation Report and Scoresheet
It is again clear beyond doubt that the...
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