Amaryllis Ltd v HM Treasury No. 2

Disclosure under CPR Part 31.6 is confined to documents on which a party relies, which support another party’s case, or which adversely affect its own case. The former “train of enquiry” approach is no longer the test. Disclosure must also be proportionate.

A public interest immunity objection requires a properly considered three-stage process: relevance, real damage to the public interest, and balancing that interest against the public interest in the administration of justice. Internal procurement documents will rarely attract immunity merely because they concern governmental decision-making. Commercially sensitive third-party material may be protected through redaction and anonymisation where that preserves both confidentiality and a fair trial.

The claimant brought a substantial procurement claim alleging that HM Treasury had evaluated its pre-qualification questionnaire unfairly, opaquely and discriminatorily. Shortly before the liability trial, the claimant sought disclosure and inspection of documents concerning the procurement process, including other suppliers’ questionnaires, evaluation material and pre-tender information.

The defendant resisted disclosure on grounds of irrelevance, disproportionality, confidentiality and public interest immunity under CPR 31.19. The court had to determine which categories were relevant and proportionate, and whether public interest immunity or confidentiality justified withholding them.

1. Relevance and proportionality. The claimant’s application was assessed category by category. Under CPR Part 31.6, the relevant documents were those on which a party relied, which supported the other party’s case, or which adversely affected its own case. The “train of enquiry” test associated with Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co was no longer applicable. Disclosure also had to be proportionate under CPR Part 1.1.
2. Other suppliers’ questionnaires, the claimant’s marked questionnaire, the evaluation report, scoresheets and relevant internal evaluation notes were relevant because the pleadings made comparison and the fairness of the evaluation central issues. Stakeholder correspondence, peripheral pre-questionnaire communications, excessively broad policy-document requests and earlier draft weighting documents were irrelevant or disproportionate.
3. Public interest immunity. The process described in R v Chief Constable of West Midlands Police ex parte Wiley required consideration of relevance, whether disclosure would cause real damage to the public interest, and the balance between non-disclosure and the administration of justice. Under CPR 31.19, the objection should be decided by a minister or sufficiently senior official after that process had been undertaken.
4. The defendant’s unsupported claim of immunity over its own internal procurement documents failed. It was exceptional for the public interest to require secrecy about an internal evaluation process central to a claim under Regulation 4(3) of the Public Contracts Regulations 2006.
5. The approach in Varec SA v Etat Belge did not create a new procedure. The court should receive unredacted documents when reviewing the objection, but confidentiality could be protected through redaction and substitution. Supplier names were to be replaced by designation letters, and irrelevant or genuinely confidential material could be redacted while issue-related material remained available for comparison.

The claimant’s disclosure application therefore succeeded in part. The defendant’s application to withhold inspection was refused in relation to the relevant documents, subject to the ordered redactions and any remaining disputes being dealt with at the adjourned pre-trial review.

First-instance decision. The judgment records an earlier decision, [2009] EWHC 962 (TCC), dismissing the defendant’s strike-out application.