Lettings International Ltd v Newham

In a public procurement challenge, comparative tender documents may be strictly relevant where the defence puts the relative marking of rival bids in issue. Disclosure must nevertheless respect the confidentiality of business information and the requirements of a fair trial.

The reviewing court must have access to material necessary to decide the challenge with full knowledge of the facts, including confidential information where required. The appropriate balance may be achieved by initial disclosure to the claimant’s legal advisers only, with redactions where practicable. Wider disclosure should be considered by the trial judge on a fuller evidential basis.

Lettings International Ltd challenged the London Borough of Newham’s tender process for private-sector leased accommodation. It alleged failures to disclose award criteria, failures to apply those criteria, and unfair, unreasonable or non-objective marking.

The interlocutory application concerned only the alleged unfair marking. The claimant sought disclosure of the four successful tenders, arguing that the defendant’s defence made the comparative attributes of the rival bids relevant. The Council and the successful tenderers opposed disclosure on confidentiality and relevance grounds. The central issue was how to reconcile the need for effective review of the procurement process with protection of confidential tender information.

1. Disclosure application partly allowed. The successful tenders were relevant to the pleaded allegation that the claimant’s bid had been marked unfairly when compared with the rival bids. They were therefore disclosable on ordinary principles, subject to appropriate protection for confidentiality.
2. The court applied the principles identified in Lion Apparel Systems v Firebuy Ltd [2007] EWHC 2179 (Ch). A reviewing court must be able to examine compliance with equality, transparency and objectivity obligations. Although an authority has a margin of appreciation in matters of judgment or assessment, that does not prevent scrutiny for manifest error.
3. The confidentiality principles in Varec SA v Belgium State [2008] EUECJ C-450/06 required a balance between protecting confidential information and ensuring effective legal protection and a fair trial. Confidentiality was an important public interest, but it could not prevent the court from obtaining material needed to decide the challenge with full knowledge of the facts.
4. Abbey Mine Ltd v The Coal Authority [2008] EWCA Civ 353 illustrated that fairness in a rival-application process does not ordinarily require disclosure of the rival’s bid. That decision was distinguishable because the decision-maker there already possessed all relevant documents. Here, the court itself might require the disputed tenders to resolve the pleaded challenge. The context-sensitive approach to fairness stated in Lloyd v McMahon [1987] AC 625 was accordingly relevant.
5. Disclosure was ordered in the first instance to the claimant’s legal advisers, with redaction where practicable. The lawyers were not to disclose the material to the lay clients without further order. Any application for wider disclosure was left to the trial judge, who would have a fuller evidential basis on which to assess the balance.

The judgment records that an earlier injunction application in the litigation had reached the Court of Appeal, but gives no citation or stated outcome for that appeal. The present decision was an interlocutory first-instance ruling on disclosure.