Bombardier Transportation Ltd v Merseytravel

Public procurement proceedings are not private merely because they involve commercially sensitive information. The court starts from open justice and public access to court-file documents. Confidentiality is protected only where genuinely necessary, following a careful and proportionate assessment of the material. Redaction, anonymisation and confidentiality rings may be appropriate. Restrictions on inspection should be sought only where necessary, and affected non-party tenderers should have an opportunity to make submissions where their confidential material may be disclosed. Procurement documentation describing the evaluation regime will generally not retain confidentiality once proceedings challenge the legality of the tender evaluation.

The claimant brought a damages-only procurement challenge after the defendant awarded contracts forming part of the Merseytravel Rolling Stock Programme to Stadler. The immediate issue concerned an application under CPR 5.4C to restrict non-party access to the Particulars of Claim and seven annexes said to contain confidential procurement material.

The issue arose alongside concerns that public procurement claims were routinely being marked private and that non-parties were being denied access to the court file. The court therefore considered the general balance between open justice and confidentiality, including the practical guidance applicable to procurement disputes.

1. Open justice. The court held that the starting point in civil proceedings is open justice. Court-file documents should be publicly available unless there is a good reason to restrict access. The fact that proceedings concern public procurement does not justify marking the entire case private or withholding the whole court file from non-parties.
2. Confidentiality and proportionality. Confidentiality is not an absolute bar to disclosure. The court must balance genuine commercial confidentiality against open justice, while avoiding unnecessary cost and complexity. Restrictions should be made only where necessary. Redaction or anonymisation may permit public access while protecting sensitive information.
3. Procurement documentation. Once proceedings challenge the legitimacy of a tender evaluation, a contracting authority cannot generally maintain confidentiality in documentation setting out matters such as the evaluation regime merely because it was confidential during the tender process.
4. Practical safeguards. Confidentiality rings may be used. Parts of a procurement trial may be heard in private where necessary to protect confidential tender information. Where the tender of a successful non-party bidder may be examined comparatively, that bidder should have an opportunity to make submissions before its information is disclosed.
5. The court agreed with paragraphs 27–31 of the draft Guidance Note on Procedures for Public Procurement Cases, while recognising that the Note remained subject to approval by the Master of the Rolls. The claimant was directed to reconsider the confidentiality of the annexes in detail, with the issue potentially to be determined on paper.