Bombardier Transportation UK Ltd v London Underground Ltd

Specific disclosure in a procurement challenge may be ordered where the request is tied to pleaded issues, witness evidence and expert material, even if the documents were not before the contracting authority during its evaluation. The court must assess relevance and proportionality in the context of the issues actually raised. A document’s absence from the evaluator’s materials does not make it incapable of being relevant. The appropriate order may define a proportionate period, custodians and keyword searches.

The claim concerned a procurement challenge arising from the proposed use of spheroidal graphite iron in rolling-stock bogie frames. The central dispute concerned the defendants’ evaluation of the claimant’s material and the alleged risk of defects and variability in the casting process.

After disclosure revealed an email referring to serious casting defects, the defendants sought further documents. The claimants addressed the issue in a witness statement, describing the defect as isolated and explaining changes to inspection procedures. The application concerned whether targeted disclosure relating to that issue should be ordered.

1. Application granted in limited form. The defendants were entitled to specific disclosure concerning the casting-defects issue. The request was limited and proportionate because the issue had been raised in the pleadings, expert evidence and a witness statement, and the defendants were entitled to cross-examine the witness on it.
2. The court’s task was not to conduct a general trial of spheroidal graphite iron. Relevance had to be assessed by reference to the issues in the procurement challenge and the evidence actually advanced.
3. The fact that documents had not been seen by the evaluators did not establish that they were irrelevant. Relevance depended on the facts and issues in the particular case. A document discovered through an appropriate search might prove irrelevant, but that did not justify excluding potentially relevant documents in advance.
4. The disclosure order was to be proportionate. The search period ran from August 2017 to 31 March 2019. The search was to be a reasonable keyword search of Mr Winning’s email account, together with the account of any other senior person whom he identified as involved in the relevant issues.
5. The court considered that Mr Winning, as director of structural integrity, was the obvious custodian. The limits imposed were intended to prevent the issue from unnecessarily resurfacing before the court or another judge.