Bombardier Transportation Ltd v Merseytravel
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 24 March 2017 |
| Neutral Citation | [2017] EWHC 575 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2017-000009 |
| Date | 24 March 2017 |
[2017] EWHC 575 (TCC)
The Hon Mr Justice Coulson
Case No: HT-2017-000009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice,
Rolls Building,
Fetter Lane, London, EC4A 1NL
Mr Rupert Paines (instructed by Bond Dickinson LLP) for the Claimant
Ms Valentina Sloane (instructed by DLA Piper) for the Defendant
Hearing date: 17 March 2017
Judgment Approved
This is a procurement dispute in which the claimant makes various allegations against the defendant arising out of a tender process undertaken by the defendant for the award of a number of contracts which form the Merseytravel Rolling Stock Programme. The contract has now been awarded to the successful bidder, Stadler, so this is a claim for damages only. An issue has now arisen as to the balance to be achieved between open justice and confidentiality in public procurement disputes.
The issue arose in a rather unusual way. On 21 February 2017, Stephenson Harwood LLP wrote to me, as the judge in charge of the TCC, saying that they had read in the Press an outline of the claimant's claim in these proceedings. They said that they acted for another unsuccessful bidder for the same contract and were therefore interested in the case. They said that they had sought to obtain copies of the documents on the court file and had been told that the whole of the court file had been marked 'private', and that copies would not therefore be made available. The letter from Stephenson Harwood went on to set out the reasons why they said that this was wrong in principle.
I caused further enquiries to be made. As a result, I learned that all public procurement claims were being marked on the court file as "private", so that access to the court file in such cases was being routinely denied. I was not at all sure that that could be right in principle. Simultaneously, the claimant in these proceedings then made an application for an order pursuant to CPR 5.4C that neither the Particulars of Claim, nor the confidential annexes attached to it, should be provided to non-parties. I heard that application on 17 March 2017. A number of general principles were discussed. I am very grateful to both counsel for their significant assistance.
I consider that the starting point is the principle of open justice. Unless there is a good reason why not, all civil claims in the United Kingdom should be heard in open court. As part of that process, all the documents on the court file should be publicly available. Thus, merely because the case in question is a procurement dispute is no reason for the case to be labelled as "private", with all of the documents on the court file being kept secret and not made available to non-parties. Both counsel agreed with that proposition.
The balancing act between open justice, on the one hand, and confidentiality, on the other, is a fine one, and particular difficulties can arise in procurement disputes. How should the court go about dealing with them? Happily, there is what seems to me to be a detailed answer to that question. Recently, the public procurement bar and some of my judicial colleagues in the TCC have worked together to produce a draft 'Guidance Note on Procedures for Public Procurement Cases'. I stress that, although the draft has now been finalised, it requires the approval of the Master of the Rolls before it can be utilised across the board, and so presently remains a draft only.
However, because it seems to me that the draft Guidance Note provides a clear and practical answer to the balancing exercise to which I have referred, I should set out the relevant parts. Confidentiality is dealt with at paragraphs 27–31 of the draft as follows:
"27. Public procurement claims frequently involve the disclosure of, and reliance upon, confidential information. Confidentiality is not a bar to disclosure. 1 However, the need to protect confidential information needs to be balanced by the basic principle of open justice. Managing the use of confidential information in the proceedings tends to increase both the cost and complexity of the litigation. The Court will seek to manage the proceedings so that confidentiality is protected where genuinely necessary but ensuring that the issue of confidentiality does not give rise to unnecessary cost or complexity. Assertions of confidentiality should only be made where properly warranted.
28. Once a case has been allocated to a particular TCC judge, papers and communications, particularly those which are to be treated as confidential, should generally be passed through the relevant Judge's Clerk to limit the risk of inadvertent disclosure.
29. Papers delivered to and communications with the Court and the Judge's Clerk should be marked as "Confidential" if they are confidential.
30. It is recommended that...
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