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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.

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