Pearson Driving Assessments Ltd v The Minister for the Cabinet

Applications for specific disclosure before an urgent application to lift a statutory suspension must be determined by reference to fairness, necessity and proportionality. The court should consider whether the applicant has enough material to raise a serious issue to be tried and to advance the balance of convenience arguments. It should not determine the serious-issue question on controversial facts unsupported by clear, uncontroversial contemporaneous documentation. Early disclosure should be tightly focused on material showing how the procurement evaluation was actually performed. The statutory procedure is intended to operate before all steps leading to a final liability hearing have been completed. If a fair decision cannot be reached without further disclosure, the statutory application may be adjourned.

The claimant challenged a public procurement exercise and applied for extensive specific disclosure before the defendants’ application under Regulation 47(H) of the Public Contracts Regulations 2006 to lift the automatic statutory suspension. Standard disclosure had already been ordered shortly after the statutory application.

The claimant argued that it was disadvantaged because the defendants possessed the documents explaining the evaluation process. The court considered whether further documents were necessary before the urgent application, including documents relating to financial standing, subcontractors, an allegedly abnormally low tender and other grounds of challenge.

1. The application for specific disclosure was dismissed. The defendants were nevertheless required, pursuant to their undertaking, to provide specified meeting minutes within 48 hours, subject to establishment of the confidentiality ring. Permission was granted for amended pleadings, and the claimant was ordered to pay 50% of the defendants’ costs of the disclosure application.

2. Under section 47(H) of the Public Contracts Regulations 2006, the court applies the principles in American Cyanamid Co v Ethicon Ltd [1975] AC 396. The principal questions are whether there is a serious issue to be tried, where the balance of convenience lies, and whether damages would provide adequate compensation, whether as part of that balance or as a separate hurdle.

3. The court should not resolve controversial factual disputes on a statutory suspension application merely because a witness asserts the relevant facts. Facts unsupported by clear, uncontroversial contemporaneous documentation cannot properly be used to establish that no serious issue exists. On the financial-standing complaint, the pleadings themselves disclosed sufficient material to raise such an issue.

4. The principles stated in Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) were applicable. Early procurement disclosure must be considered on its individual merits, be tightly drawn and focused, and ordinarily concern material showing how the evaluation was performed and why the challenger lost. The court must balance the challenger’s lack of knowledge against the risk of a fishing exercise.

5. The purpose of Regulation 47(H) is to permit an early and urgent decision before all steps leading to final judgment have occurred. The court need not require the parties to complete the disclosure exercise for the liability trial before hearing the application. Existing information could be used to advance arguments on the strengths and weaknesses of the case and on the balance of convenience.

6. If, during the Regulation 47(H) hearing, it became clear that justice could not be done without further disclosure, the application would have to be adjourned and appropriate disclosure ordered.