New judgment giving guidance on confidentiality in procurement claims

27 Mar 2017

In a short and significant judgment handed down on 24 March 2017, Mr. Justice Coulson has given general guidance on the treatment of confidential information in procurement cases and has signalled a change in the treatment of procurement case files in the Technology & Construction Court.

The judgment was given in Bombardier v Merseytravel, a case in which the claimant has made various allegations against the defendant arising out of a tender process for the award of a number of contracts which form the Merseytravel Rolling Stock Programme. The contract has been awarded to the successful bidder so the claim is for damages only.

The claim file had been marked “private” and a third party (an unsuccessful bidder) applied to the court for access to the pleadings. When considering the application, Mr. Justice Coulson 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. Mr. Justice Coulson has made it clear that such a practice is wrong in principle and will not continue.

The judgment sets out various general principles relating to the balance to be achieved between open justice and confidentiality in public procurement disputes.

Please click here to read the judgment.

Valentina Sloane appeared for the Defendant, Merseytravel. She and Philip Moser QC are instructed by DLA Piper to act for Merseytravel in the ongoing proceedings.