Braceurself Ltd v NHS England
| Jurisdiction | England & Wales |
| Judge | Mr Alexander Nissen QC |
| Judgment Date | 01 March 2022 |
| Neutral Citation | [2022] EWHC 3537 (TCC) |
| Court | King's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2019-000339 |
[2022] EWHC 3537 (TCC)
Mr Alexander Nissen QC
(Sitting as a Deputy Judge of the High Court)
Case No: HT-2019-000339
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
The Rolls Building
7 Rolls Building
Fetter Lane
London EC4A 1NL
Mr J Holl-Allen QC and Mr A Dhillon (instructed by Acuity Law Ltd) appeared on behalf of the Claimant
Ms F Morris QC and Mr B Tankel (instructed by Blake Morgan LLP) appeared on behalf of the Defendant
These proceedings involve a challenge to a procurement run by the defendant in respect of the provision of orthodontal services. There were two bidders, the claimant and the preferred bidder. Originally the proceedings, as issued, included relief forming a set aside order in respect of the procurement. At the time that that was the relief being sought, a hearing took place before HHJ Wood QC who made an order on 21 August 2019 in respect of a confidentiality ring. The substance of that order was that documents asserted by the defendant to contain confidential information were to be put into a ring and the claimant was then to respond in relation to that assertion.
In paragraph 5 of the order, provision was made for an application to be made to this court on three clear days' notice should the claimant seek to have documents removed from the confidentiality ring.
It is common ground between the parties today that the setting up of that ring did not involve any judicial consideration as to whether the information put into the confidentiality ring in fact contained confidential information; that was or could have been the basis of any application made by the claimant as envisaged by the order.
Since that order was made there has been a material development in that the claimant did not pursue the set aside order in respect of the procurement, or more accurately did not challenge the release of the suspension, such that these proceedings are now limited to a claim in damages.
A further feature of this application is that confidentiality is something which I, myself, raised at the pre-trial review. I was not content that the matter had been left by default without any proper consideration about open justice. I indicated that questions of confidentiality should be addressed by the parties by reference to those principles.
The position therefore, as it comes to me today, is that there has been no judicial consideration of the question of confidentiality. In any event I have in mind O'Farrell J's comments in the case of The Queen on the application of Good Law Project Limited & Anor v The Secretary of State For Health and Social Care [2022] EWHC 46 (TCC) at paragraph 262 where she says that:
“The use of a confidentiality ring for the purpose of...
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