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Appendix 3 TCC Guidance Note on Procedures for Public Procurement Cases

Litigation in the technology and construction court


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Appendix 3

TCC Guidance Note on Procedures for Public Procurement Cases

TCC Guidance Note on Procedures for Public Procurement Cases


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TCC GUIDANCE NOTE ON PROCEDURES FOR PUBLIC PROCUREMENT CASES (Appendix H to the TCC Guide)

Introduction


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Pre-Action Process and ADR

Institution of Proceedings

Service of the Claim Form

Service of the Particulars of Claim

  • 10. Parties should be aware of the provisions of CPR 7.4 (1) and (2). CPR 7.4(2) requires that the Particulars of Claim be served no later than the latest time for serving the Claim Form.

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    11. If the Particulars of Claim (or other pleadings) contain confidential information, the party serving the pleading should lodge with the Court (a) a non-confidential version of the pleading redacted so as to preserve confidential information and (b) an unredacted version marked as confidential and sealed in an envelope also marked as confidential and seek an order by letter, copied to the other party and any relevant third parties, that the access to the Court file be restricted. Wherever possible, confidential information should be contained in a self-contained schedule or annex. Where a pleading is served electronically, the party serving it should ensure that redaction is effective and should give consideration to methods of protecting confidentiality, such as password protection. The continued arrangements to protect confidentiality should be addressed at the first CMC pursuant to paragraph 22 below.

Judicial Review

CMC

Cost budgeting

  • 23. The provisions in the CPR about preparation of costs budgets (CPR Part 3.13 and Practice Direction 3E) and electronic disclosure (Practice Direction 31B) apply. However, if there is uncertainty as to the course the proceedings may take so that it is not possible to prepare a realistic costs budget, or if the speed at which proceedings are being pursued is such that there is insufficient time for the parties to prepare and file sensible costs budgets or to take the steps required in connection with electronic disclosure in time for the CMC fixed by the Court, it is recommended that the claimant apply to the Court in writing, either before or at the same time as applying to fix the CMC, for an urgent order that the parties do not have to serve costs budgets 7 days before the CMC or dis-applying the provisions of 31BPD.4 in relation to disclosure of electronic documents. Unless one party objects, the Court will deal with such applications on paper.

Specific and Early Disclosure

  • 24. Early disclosure may be justified to enable the claimant to plead its case properly or to secure finalised pleadings if and when expedited trials are ordered.
  • 25. Contracting authorities are encouraged to provide their key decision making materials at a very early stage of proceedings or during any pre-action correspondence. This may include the documentation referred to in Regulation 84 of the Public Contracts Regulations 2015 (“the 2015 Regulations”).
  • 26. The question of disclosure will be considered at the first CMC. Applications which are likely to be contested should be brought on promptly; early hearings can be fixed if required. The parties’ attention is drawn to the general provisions on disclosure in this Guide at Section 11 and to the protocol for e-disclosure prepared by TeCSA of 9 January 2015.

Confidentiality generally


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    27. Public procurement claims frequently involve the disclosure of, and reliance upon, confidential information. Confidentiality is not a bar to disclosure.4 However, the need to protect confidential information needs to be balanced by the basic principle of open justice. Managing the use of confidential information in the proceedings tends to increase both the cost and complexity of the litigation. The Court will seek to manage the proceedings so that confidentiality is protected where genuinely necessary but ensuring that the issue of confidentiality does not give rise to unnecessary cost or complexity. Assertions of confidentiality should only be made where properly warranted.
  • 28. Once a case has been allocated to a particular TCC judge, papers and communications, particularly those which are to be treated as confidential, should generally be passed through the relevant Judge’s Clerk to limit the risk of inadvertent disclosure.
  • 29. Papers delivered to and communications with the Court and the Judge’s Clerk should be marked as “Confidential” if they are confidential.
  • 30. It is recommended that documents containing confidential material are provided on coloured paper so that their confidential status is immediately apparent (practitioners are asked to take care that the print remains legible when printed on a coloured background). Where relevant, the level of confidentiality should be identified either by a stamp or mark (e.g. “Confidential 1st Tier”5) or by a particular colour of paper.
  • 31. Where necessary to protect confidential information the Court may, if requested, make an order restricting inspection of the Court files. Requests to restrict inspection should only be made where necessary. Any member of the public may seek an order from the Court varying any such restrictions. Consideration should be given to providing appropriately redacted pleadings for the Court file so as to permit public access to them. As to the management of confidential information in pleadings generally, see paragraph 11 above.

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Redactions

  • 32. Redaction of disclosed documents, statements or pleadings can be justified on the grounds that the redactions cover privileged and/or confidential material. In the latter case, redactions may be justified to enable documents to be more widely disclosable to people outside any confidentiality rings. In such cases, a schedule should be prepared which explains the justification for the redactions. The schedule should list the information in respect of which confidential treatment is claimed and the reasons for the claim for confidentiality. The schedule should contain two columns: the first giving the relevant page and paragraph reference (a line number should be added if there are a number of pieces of confidential information in one paragraph in the document concerned); and the second setting out the reasons for asserting confidentiality. For example:
Document Title
Location in Document Reason for assertion of confidentiality
Page 15, paragraph 4.2 The deleted material relates to ABC Limited's confidential costs and prices
  The information is in the nature of a business secret
  • 33. Save in exceptional circumstances or where redacted material is irrelevant, the Court should, at the appropriate stage, be provided with the redacted documents also in unredacted form with the redactions highlighted in a prominent colour which does not obscure the information beneath it, together with the schedule of redactions. This can be important on specific disclosure applications as well as at trial. Each page of the document must include the header “CONTAINS CONFIDENTIAL INFORMATION”.

Confidentiality Rings and Undertakings

  • 34. Confidentiality rings may be established where necessary to facilitate the disclosure of confidential information. A confidentiality ring comprises persons to whom documents containing confidential information may be disclosed on the basis of their undertakings to preserve confidentiality.

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    35. It is highly desirable that any confidentiality ring is established as early as feasible. Agreements or proposals for confidentiality rings, their scope and limitations should be put before the Court at the first CMC or application for specific disclosure, whichever is earlier, with explanations as to why they are justified. The Court may make orders implementing, approving or amending the parties’ agreements or proposals.
  • 36. The terms of any confidentiality ring will depend on the circumstances of the particular case, including the matters in dispute and the nature of the material to be disclosed. Generally, however, it will be necessary to determine (1) who should be admitted to the ring and (2) the terms of the undertakings which any members of the ring may be required to give.
  • 37. As to personnel, a party’s external legal advisors (solicitors and counsel) will need to be admitted to any ring that is established.
  • 38. Parties, and in particular the claimant, may also wish to include certain of their own employees in the ring, who may be in house lawyers or other personnel. This will usually be for the purpose of understanding material disclosed into the ring and/or for giving instructions to external lawyers.
  • 39. Where a party proposes to admit an employee representative, and the ring contains material which is confidential to a commercial competitor of that party, relevant factors are likely to include that party’s right to pursue its claim, the principle of open justice, the confidential nature of the document and the need to avoid distortions of competition and/or the creation of unfair advantages in the market (including any retender) as a result of disclosure.
  • 40. In considering whether a particular person should be admitted to the ring, the Court will take account of his/her role and responsibilities within the organisation; the extent of the risk that competition will be distorted as a result of disclosure to them; the extent to which that risk can be avoided or controlled by restrictions on the terms of disclosure; and the impact that any proposed restrictions would have on that individual (for example by prohibiting them from participating in a re-tender or future tenders for a period of time).

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    41. In order to manage these risks employee representatives may be admitted to a confidentiality ring on different terms from external representatives. Employee representatives may also have access to some but not all of the material disclosed into the ring (for example, technical material but not pricing information). This is sometimes referred to as a “two tier” ring.
  • 42. Under an alternative form of two tier ring, the external representatives of a party in the first tier may apply for an employee representative in the second tier to have access to a particular document or documents, whether in open form or partly redacted. One way of dealing with this is for notice to be given to any person affected by the proposed disclosure, identifying the document, the form in which its disclosure to members of the second tier is sought, and the reasons why disclosure to the second tier is sought, and for the person affected to consent or object within a fixed time. The person or persons affected may be the contracting authority and/or the owner of the confidential information. In cases subject to expedition the period for response may be short and, in appropriate cases, less than a working day. Two tier rings necessarily introduce additional cost and complexity and will need to be justified in the circumstances.
  • 43. Other specialist advisors (such as accountants or those with other expertise) may also be admitted to the ring if that is demonstrated to be necessary, either in lieu of or in addition to employee representatives.6
  • 44. As to the terms of disclosure, the Court will order that confidential documents, information or pleadings are only to be provided to members of the ring if undertakings are given to the Court. Such undertakings will preclude the use of the relevant material other than for the purposes of the proceedings and prevent disclosure outside the ring. They will also contain provisions controlling the terms on which confidential information must be stored and the making of copies, and requiring the receiving person to either return or destroy the documents in question, or render them practically inaccessible, at the conclusion of the proceedings.
  • 45. Additional undertakings may be required, particularly where there are concerns that disclosure could have an impact on competition and/or any subsequent procurement. These may include terms:

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      (1) Preventing employee representatives from holding copies of documents at their place of work and requiring them to inspect the material at a defined location (such as the offices of their external lawyers);
    • (2) Limiting the involvement of a recipient of a document in any re-procurement of the contract which is the subject of the litigation;
    • (3) Limiting the role which a recipient can play in competitions for other similar contracts for a fixed period of time in a defined geographic area; and/or
    • (4) Preventing the recipient from advising on or having any involvement in certain matters, again for a fixed period of time.
  • 46. Whilst the Court will give weight to the need to protect competition in the market, the more onerous the proposed restriction is, the more clearly it will need to be justified. Further, the terms of the ring will need to be workable taking account of the timetable for the litigation, including any order for expedition.
  • 47. Confidentiality rings will also contain provisions which establish how confidential information is to be identified as such, and how claims to confidentiality may be challenged.
  • 48. Where documents are disclosed into the ring in confidential form, further non-confidential versions of those documents should also be disclosed with necessary redactions.

Suspension lifting applications

Interested Parties

Expedition

Trial

  • 65. Consideration needs to be given to confidentiality in terms of what may be reported, whether there should be restricted access to the Court recording of the proceedings and who can be present in the courtroom. The Court will as a matter of generality require as much of the trial as possible to be open to all who wish to attend and limit restrictions to those which are legitimate, fair and proportionate.

Judgments

  • 66. Judgments in procurement cases will be handed down as open documents, save in the most exceptional circumstances (for instance in cases involving Official Secrets). Any confidential information will usually be contained in a separate schedule to the judgment (or such other form as appropriate) which will not be available more widely than the membership of any confidentiality ring (if applicable) without an order of the Court. Counsel should co-operate through the Judge’s Clerk to agree what may be made publicly available.

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