Express Medicals Ltd v Network Rail Infrastructure Ltd

Inspection of disclosed documents is governed by the disclosure order as well as the Civil Procedure Rules. Where relevant material is confidential, relevance alone does not determine inspection. The court must balance the strength and value of the confidentiality interest, the damage likely to result from disclosure, and whether a fair trial can be achieved without disclosure. Protective measures should be considered.

Confidential staff identities, client lists and business plans may properly be protected where disclosure could damage a competitor’s commercial position. Information is not necessary for a fair trial merely because it might assist a party to investigate a speculative allegation. Where inspection would only support a fishing expedition, confidentiality should be preserved.

The claimant sought inspection of further parts of documents disclosed by the defendant in proceedings concerning alleged unfairness and breaches of obligations said to govern tender procedures. The documents related to tenders and contracts awarded to Nationwide Healthcare Connections Limited.

The defendant had disclosed documents subject to obliterations of prices, staff identities, client identities, referees’ details and limited business-plan material. The claimant accepted that prices could remain confidential for the preliminary liability trial but sought inspection of the other information. Nationwide, although not a party, supported additional obliterations.

The central issue was whether the disputed information was necessary for the fair trial of the preliminary liability issues, having regard to its commercial confidentiality.

1. Application dismissed. The claimant was not entitled to inspect the disputed obliterated material. Three passages relating to pricing were also to remain obliterated for the preliminary issue trial. The parties and Nationwide were given liberty to apply.
2. The court rejected the submission that the defendant’s failure to make a formal statement under Part 31.19(3) prevented the court from considering the matter under Part 31.19(5). Inspection was governed by the Civil Procedure Rules and by the court’s earlier order. It did not matter which party made the application.
3. Following the principles discussed in Science Research Council v Nassé [1980] AC 1028, confidentiality required a balancing exercise. The court considered the importance and potential damage of disclosure, whether the fair disposal of the case could be achieved without it, and the availability of protective measures. Relevance was necessary but was not an automatic sufficient test.
4. The identities and contact details of medical and other staff were confidential commercial information. The same applied to client identities and referees’ contact details. Business plans and innovative service proposals were also confidential. The competitive nature of the industry made the preservation of that confidentiality important to both Nationwide and the defendant.
5. The claimant’s proposed inspection of staff identities and referees’ identities was a fishing expedition. The disclosed numbers and qualifications of staff were sufficient to reveal any apparent inadequacy. If the services supplied were inadequate, that would ordinarily raise breach-of-contract issues rather than establish a variation of the tender requirements. The identities were therefore peripheral and unnecessary for a fair trial.
6. The limited business-plan passages could not detract from the unobliterated contractual terms or show that the contracts differed materially from the invitations to tender. Fryers v Home Office [2003] EWCA Civ 655 was distinguishable because it concerned third-party disclosure under Part 39.17. The principle concerning protection of a stable trained workforce in Dawnay, Day & Co Ltd v D’Alphen [1998] ICR 1068 supported Nationwide’s legitimate confidentiality interest.

First-instance decision on an application for inspection of disclosed documents. No earlier appellate decision is stated in the judgment.