0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

procurement challenges - what constitutes confidential information?

3 April 2017

Guidance has been given in the case of Bombardier Transportation Limited v Merseytravel [2017] EWHC 575 (TCC) as to when information relating to a procurement challenge ought to be regarded as confidential and cannot be shared with third parties. In this case a third party had read of the matters which were before the court in the press and had made a request to the court of the documentation on the court file. Mr Justice Coulson discovered that all court files relating to public procurement proceedings were routinely marked 'private' with access being denied.

Mr Justice Coulson stated 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.” He then went on to consider the draft ‘Guidance Note on Procedures for Public Procurement Cases’ which has been drafted by the public procurement bar and judges who sit in the TCC and considered that cases ought to be dealt with in accordance with the draft note. He stated:

  1.  Confidentiality is not a bar to disclosure.
  2. Papers deemed to be confidential should be sent through the judge’s clerk to limit the risk of inadvertent disclosure or coloured paper used to identify confidential information.
  3. It is always open to the parties to make an application to the court restricting access to files.

In advance of litigation, parties should consider what protection is required for the documentation which will be disclosed and take pro-active steps to make sure that confidential information is kept confidential. 

related opinions

The Restriction of Public Sector Exit Payments Regulations 2020

On 14 October 2020, The Restriction of Public Sector Exit Payments Regulations 2020 (the “Regulations”) were made into law and will come into force on 4 November 2020.

View blog

Internal Market Bill published today – the start of the controversy?

The Internal Market Bill is published today, but amid much controversy.

View blog

Impact of Covid-19 upon level of fine

Two cases have considered the issue of Covid 19 as part of the sentencing exercise. In the most recent, failures by a principal contractor Modus Workspace, who design and refit refurbishments, led to a £1.1 million fine after an engineer was injured from a fall from a roof.

View blog

Important opportunity to comment on case law precedent

The UK government is considering extending this power to depart from retained EU case law to additional lower courts and tribunals, namely the Court of Appeal in England and Wales and the High Court of Justice in England and Wales and their equivalents.

View blog

mailing list sign up



Select which mailings you would like to receive from us.

Sign up