Covanta Energy Ltd v Merseyside Waste Disposal Authority

Early specific disclosure in procurement proceedings is exceptional and must be justified by the needs of an imminent application or hearing. The request must be reasonably necessary, tightly drawn and properly focused. The court must balance the claimant’s lack of information against the risk of a fishing exercise and unnecessary cost. Documents which may be relevant to eventual standard disclosure do not automatically require early disclosure. Where the application concerns an injunction or equivalent relief, the American Cyanamid principles provide the relevant framework, including a serious issue to be tried, the balance of convenience and the adequacy of damages.

The claimant challenged a public procurement decision concerning a long-term waste facilities contract. It applied for specific disclosure under CPR 31.12 before the ordinary disclosure stage, principally to prepare for the defendant’s pending application concerning the application of the 2009 procurement regime and for a possible injunction preventing contract placement.

The claimant sought 15 categories of documents relating to the successful tenderer, the evaluation process, communications and internal advice. The central issue was whether disclosure was reasonably necessary to ensure a fair hearing of the imminent applications.

1. Application dismissed. The claimant’s request for early specific disclosure was dismissed in its entirety. The court gave directions requiring any injunction application to be issued promptly.
2. For an application concerning suspension or injunctive relief in procurement proceedings, the relevant framework was the American Cyanamid approach: a serious issue to be tried, the balance of convenience, and the adequacy of damages. The court left open whether the third matter was a separate head.
3. The principles stated by Coulson J in Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) were materially relevant. An unsuccessful tenderer should generally receive essential information about the evaluation process promptly, but each application must be decided on its merits. Requests must be tightly drawn and focused on material showing how the evaluation was performed and why the claimant lost.
4. The court could take account of the fact that the claimant had already received substantial information and had been able to formulate detailed and specific allegations. The disputed factual issues were unlikely to be assessed meaningfully at the imminent hearing; legal points could be deployed to demonstrate relative strength or weakness.
5. The requested documents might ultimately fall within standard disclosure, but that did not make them reasonably necessary for early disclosure. Several requests were too broad, potentially introduced a substantial factual investigation, or amounted to fishing for material which might embarrass the defendant or support presently unpleaded allegations.

First-instance decision. No appellate history is stated in the judgment.