Disclosure in procurement litigation – no “carte blanche”
16th February, 2024
Disclosure is often a key area of dispute between the parties in procurement litigation, both during the pre-action stage and throughout the proceedings.
It can often be the aspect of a challenge which contracting authorities fear the most, whilst aggrieved bidders are regularly keen to push for early/further disclosure of as much material as possible.
The recent (and short) judgment in the case of Excelerate Technology Limited v (1) West Midlands Ambulance Service NHS University Foundation Trust (2) NHS England [2024] EWHC 177 (TCC), which followed a hearing listed to address disclosure issues, emphasises that parties seeking orders and/or guidance on such points do not have “carte blanche” and must take steps to ensure that the provisions of the Civil Procedure Rules, and the relevant Court guides, are observed, with the appropriate application notice being issued. The Judge in this case made it clear that failing to do so, and making “any application [a party chooses] on the hoof without issuing application notices or filing any evidence”, is, quite simply, “not acceptable practice”.
Aside from this important reminder from the Judge, further, slightly more nuanced, points arise out of the judgment to which both contracting authorities and economic operators should be alive.
The Judge made it clear that NHS England, the Second Defendant, had taken pro-active steps in an attempt to agree the scope of disclosure in the case. It had written to the Claimant several months prior to the hearing, having carried out a sampling exercise of the documents it held (using search terms etc) in order to engage constructively around which searches should be carried out to generate the tranche of potentially relevant documents for review.
In most cases, the claimant in procurement challenges will be the party which takes the lead in pressing to dictate/control the scope of disclosure, attempting to uncover as much potentially relevant (harmful) material as possible. However, in this case, the Claimant did not take such an approach and failed to respond to NHS England’s letter until just prior to the hearing.
The Judge explained that the Claimant’s “complete lack of timeous engagement and its failure to issue an application notice clearly articulating the precise points on which it sought guidance meant that the search terms were neither agreed nor were the parties ready to argue their respective position on the matters that turned out to be in issue.” Due to this approach, the Claimant was ordered to pay NHS England’s costs of the hearing, an unusual order for such a hearing.
In adopting the approach which it did (by sampling the data it held and seeking to engage via correspondence), not only did NHS England ensure that it was on top of its disclosure obligations, it also arguably sent a message to the Claimant that it was ready for disclosure, had nothing to hide and was confident of its position – a strong message in circumstances in which many claimants may expect the defendant contracting authority to shy away from disclosure.
It also appears from the judgment that, unlike NHS England, the Claimant was not on top of its own disclosure. It had failed to engage via correspondence and it made several, seemingly late, requests that the Court make a whole range of orders/directions, including: (a) a direction that it would be deemed to have complied with its standard disclosure obligations in respect of quantum by serving an unseen expert’s report (for which it did not have permission), along with unseen and unspecified supporting documents; and/or (b) an order that disclosure be suspended altogether. Unsurprisingly, no such orders were made and the judgment serves as a reminder to aggrieved bidders that once the “button has been pressed” and a claim is started, they will need to be committed to the litigation and to ensuring that their own obligations (in respect of disclosure and otherwise) are met.
In summary, as well as emphasising the need for procedural compliance, the judgment highlights that an aggrieved bidder’s assumption that the contracting authority will simply fold once disclosure is to be addressed/given and/or that it will be able to dictate or limit the scope and terms of its own disclosure, may well lead to (costly) disappointment.
If you would like more information on this case you can view the judgment. If you would like to get in touch about another similar matter please contact Tim Dennis, or another of our Expert Commercial Litigators.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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