Croft House Care Ltd & Ors v Durham County Council

Confidentiality does not, by itself, justify withholding relevant procurement documents from inspection. The court must balance confidentiality against the need to dispose fairly of the proceedings and to provide an effective review of the procurement process. Appropriate safeguards, including redaction and controlled inspection, should be considered. Concerns that disclosure may complicate a future procurement do not justify denying an effective remedy where a fair re-run remains practicable. A confidentiality ring may be unsuitable where the claimants’ directors and personnel must give instructions and the businesses lack a practical alternative representative.

Three care providers challenged a county council’s procurement of domestic care services under the Public Contracts Regulations 2006. They alleged breaches of the procurement regulations, European law principles and an implied tender contract. The immediate issue was whether documents disclosed by the council, including tenderers’ submissions and evaluation material, should remain restricted to the claimants’ legal representatives because of commercial confidentiality and the possible need to re-run the procurement.

The claimants sought access for their directors and relevant personnel so that they could provide instructions on alleged unfairness, lack of transparency, unadvertised sub-criteria and altered weightings.

1. Disclosure and confidentiality. The court applied the principle that relevance alone does not determine disclosure where documents are confidential. The ultimate question was whether disclosure and inspection were necessary for the fair disposal of the proceedings. The court had to balance confidentiality against the claimants’ right to a fair hearing, using safeguards such as redaction where appropriate.
2. Statutory confidentiality. Regulation 43 of the Public Contracts Regulations 2006 concerned information reasonably designated as confidential by tenderers and operated in the procurement process. It did not displace the disclosure obligations applicable to parties to litigation under CPR Part 31. No relevant documents had been designated confidential under the tender or regulation 43 provisions.
3. Effective review and future procurement. The need for an effective review of the procurement process was dominant on these facts. The possibility that disclosure might make a future procurement more difficult did not establish that a fair re-run would be impossible or impracticable. Greater knowledge of the council’s requirements was not inherently inconsistent with fair and transparent tendering.
4. Access and safeguards. The claimants’ directors and personnel needed to inspect material bearing on the alleged defects because they had prepared the tenders, attended the interviews and could explain what they would have done if the alleged criteria or weightings had been known. A confidentiality ring was not practical for these small family businesses. Access was therefore ordered, subject to anonymisation, redaction, supervised inspection, no copies and restricted note-taking.
5. The parties were directed to agree the redactions. Any dispute was to be referred to the court by written submissions, and the same approach was to apply, where appropriate, to other restricted documents.

First-instance decision on disclosure and inspection issues in ongoing public procurement proceedings. No appellate history was stated in the judgment.