Construcciones Y Auxiliar De Ferrocarriles, S.A. v High Speed Two (HS2) Ltd

In expedited litigation, a compressed timetable increases the need for cooperation and prompt disclosure. It does not justify obstructive conduct or repeated failures to disclose obviously relevant documents. Parties must observe ordinary procedural standards, including proper time limits and timely service of evidence. Where disclosure has been wholly outside the norm and has caused repeated applications and hearings, the court may make an unusual costs order, including indemnity costs.

The claimant brought a procurement challenge concerning its exclusion from the shortlist for the rolling-stock tender for the HS2 project. The trial had been expedited because the invitation to tender was due to be issued shortly. The judgment concerned repeated applications about HS2’s disclosure, including allegedly relevant procurement evaluation documents, witness evidence and material held by independent evaluators.

The central issues were whether the disclosure process had been conducted properly and what costs consequences should follow.

1. Disclosure and cooperation. The claimant’s disclosure applications were justified. Once the claim had been issued, legal proceedings were plainly underway and cooperation was required to determine them sensibly. The full rationale for the claimant’s evaluation, including relevant scoring and moderation material, was an obvious example of a document requiring consideration for disclosure.
2. An expedited timetable does not excuse an obstructive or repeatedly inadequate approach to disclosure. The shorter the timetable, the greater the degree of cooperation expected. The court rejected the suggestion that repeated disclosure disputes were normal case management consequences of an expedited trial.
3. The disclosure exercise was wholly outside the norm, both in frequency and content. Matters that should have been addressed in a properly conducted exercise had repeatedly been left unresolved, including whether independent evaluators held personal notes or electronic material.
4. The court also directed the parties to proceed properly thereafter. The court would remain flexible where emergencies arose, but it was not a standing resource for resolving every minor dispute that could be addressed through good sense and professional cooperation. Proper time limits and timely service of evidence were required.
5. The claimant was awarded its costs of the specified disclosure applications and attendances on an indemnity basis, summarily assessed at £135,780.37. The costs of the disclosure exercise between 26 January and 9 February 2018 were made the claimant’s costs in the case, subject to detailed assessment on the indemnity basis.

The judgment was a first-instance decision on interlocutory disclosure applications in an ongoing procurement challenge. No appeal or earlier judgment is stated.