A practice where all public procurement claims are being marked on the court file as "private", so that access to the court file in such cases is being routinely denied, is wrong in principle, the judge in charge of the Technology and Construction Court (TCC) has ruled.
The case of Bombardier Transportation Ltd v Merseytravel  EWHC 575 (TCC) (24 March 2017) involved a procurement dispute in which the claimant made various allegations against Merseytravel arising out of a tender process undertaken for the award of a number of contracts which form the Merseytravel Rolling Stock Programme.
The contract has now been awarded to the successful bidder, Stadler, so this was a claim for damages only.
However, Mr Justice Coulson, judge in charge of the TCC, said an issue had arisen as to the balance to be achieved between open justice and confidentiality in public procurement disputes.
A City law firm, Stephenson Harwood, had written to him in February this year after reading in the press an outline of Bombardier’s claim.
The firm said they acted for another unsuccessful bidder for the same contract and were therefore interested in the case. They had sought to obtain copies of documents on the court file and had been told that the whole of the court file had been marked ‘private’ and that copies would not be made available.
Mr Justice Coulson said he had made enquiries and discovered that all public procurement claims were being marked on the court file as ‘private’. “I was not at all sure that that could be right in principle,” he added.
Simultaneously, Bombardier then made an application for an order that neither the Particulars of Claim, nor the confidential annexes to it, should be provided to non-parties.
In his judgment, Mr Justice Coulson said that he considered the starting point to be 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,” the judge stressed.
“As part of that process, all the documents on the court file should be publicly available. Thus, merely because the case in question is a procurement dispute is no reason for the case to be labelled as ‘private’, with all of the documents on the court file being kept secret and not made available to non-parties.”
The judge went on to say, however, that the balancing act between open justice, on the one hand, and confidentiality, on the other, was a fine one, and particular difficulties could arise in procurement disputes.
Mr Justice Coulson said a detailed answer to the question was at hand, with members of the public procurement bar and some of his judicial colleagues in the TCC having worked together to produce a draft Guidance Note on Procedures for Public Procurement Cases. He stressed that while the draft had been finalised, it required the approval of the Master of the Rolls before it could be utilised across the board.
The judge went on to set out the relevant sections (27-31) of the draft guidance and said it seemed to him that this was how potentially confidential information should be dealt with in procurement disputes.
In the present case it was accepted by counsel for both parties at the hearing that the Particulars of Claim could be disclosed. In relation to the annexes, however, Mr Justice Coulson asked counsel for Bombardier to take further instructions.
The judge concluded: “I made plain during argument, and I reiterate, that the TCC is committed to open justice and that, on any application to keep parts or all of a pleading or an annex confidential, the court will start on the assumption that the document should be made publicly available.
“But the court understands that assessing the material in procurement disputes can be a difficult exercise and that there are sometimes legitimate commercial interests which may point in the other direction. For now, I commend paragraphs 27-31 of the draft Guidance Note to all those involved in procurement disputes in which there are confidentiality issues.”