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

confidentiality is not an automatic defence to disclosure

13 November 2018

Even documents containing confidential information can become disclosable in a procurement challenge.

In the case of Marston Holdings Ltd v Ministry of Justice (2018), the issue was whether disclosure of a successful party’s tender documents from a procurement process was necessary. The claimant, an unsuccessful party in the process, applied for disclosure of a successful party’s submitted documents.

In a successful challenge, the claimant had an arguable case based on the fact that it had been awarded the top quality mark in relation to the proposed contracts, but was not successful. The argument therefore at least raised the prospect of an issue that the court had to look at.

As long as any confidential information is not misused and is used solely for the purpose of resolving the issues in a case, documents containing such information will be disclosable. The terms of the confidentiality rings already in place in this case were considered to provide adequate protection.

Documents are not automatically privileged on the basis that they contain confidential information. If the information could be used to resolve the issues in a case, the court may order disclosure of the documents. It is advisable to implement confidentiality rings in order to protect such information, or ensure that it will be privileged by other means in order to avoid an order for disclosure.

related opinions

Children and contact with parents who are domestic abusers

It was announced on 15 May 2019 that “more than 120 MPs have written to the government asking for an inquiry into how family courts in England and Wales treat victims of domestic violence.”

View blog

Does a breach of an obligation in an agreement for lease allow the tenant to refuse to complete the lease?

A tenant who does not want to be forced to complete a lease if an obligation in the agreement for lease is breached must provide expressly for this in the agreement.

View blog

Brexit: Accounts and financial reporting – have you assessed the possible impact on your business?

Despite all of the media attention around Brexit, very little is being said about the effect of Brexit on the accounting and financial reporting requirements for businesses operating cross-border.

View blog

Could suspension of an employee pending an investigation amount to a breach of their employment contract?

The Court of Appeal recently provided authoritative guidance on disciplinary suspensions including on whether the suspension of an employee facing serious allegations, pending an investigation, could amount to a repudiation of their employment contract.

View blog

mailing list sign up



Select which mailings you would like to receive from us.

Sign up