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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. 

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