Alstom Transport UK Ltd v London Underground Ltd & Anor

There is no general rule that an application for specific disclosure must, or must not, be heard before an application to lift the automatic suspension in procurement proceedings. The court must examine whether the requested documents may be relevant to the suspension application, particularly the question whether there is a serious issue to be tried. The court should prevent a contracting authority from refusing disclosure and then relying on the absence of the documents to contend that no serious issue exists. Where the documents may bear on controversial factual assertions, fairness may require disclosure to be determined first.

Alstom challenged the proposed award of a contract by London Underground Ltd and Transport for London under the Utilities Contracts Regulations 2006. The proceedings automatically suspended the defendants’ ability to enter into the contract.

The defendants applied to lift the suspension. Alstom applied for specific disclosure of documents concerning the evaluation of the successful tender and sought directions so that disclosure would be determined first. The issue was the proper sequence of the two applications.

1. The application for specific disclosure was directed to be heard before the application to lift the automatic suspension. The decision was fact-specific and did not establish a general procedural rule.
2. The relevant question was whether any documents sought were, or might be, relevant to the application to lift the suspension. That required analysis of the documents and of the issues likely to arise on the suspension application.
3. The threshold for showing a serious issue to be tried is low. Where a claimant makes a bona fide disclosure application and the defendant relies on disputed facts concerning the procurement while withholding documents relevant to those facts, the court should be astute to prevent an unfair advantage.
4. The court also had to avoid an adjournment part-heard if documents later appeared to be relevant. Accordingly, fixing disclosure first may be the safest course where the relevance of the documents cannot properly be assessed in advance.
5. Pearson Driving Assessments v DVLA [2013] EWHC 2082 (TCC) and Bristol Missing Link Limited v Bristol City Council [2015] EWHC 876 (TCC) were confined to their particular facts. They supported the need to balance urgency against fairness, but neither established a usual or automatic sequence.
6. On the facts, the defendants’ proposed reliance on disputed matters concerning the successful tender meant that the suspension application should not be decided without at least some of the requested documents. The resulting eight-day delay was proportionate and caused no material prejudice.

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