Bombardier Transportation UK Ltd v London Underground Ltd & Anor

When deciding whether material should be withheld from the public in commercial proceedings, the question is whether there is good reason why the public should not know it. The court may make a limited confidentiality order where that test is satisfied. Such an order may restrict references to detailed damages calculations and confidential documents while allowing disclosure of the claim’s overall size. Confidential material may also be used in cross-examination subject to safeguards and advance directions from the trial judge.

This was an interlocutory ruling in connected Commercial Court proceedings involving Bombardier Transportation UK Limited, London Underground Limited and Hitachi Rail Europe Limited. The court was asked to regulate references in open court to the claimant’s schedule of loss and to five documents said to be proprietary or confidential between Bombardier and Hitachi. The central issue was the extent to which those matters should be excluded from public reference while preserving their potential use in the trial.

1. Confidentiality test. The relevant question was whether there was good reason to make it necessary for the public not to know the information. The question was not whether the public needed to know it.
2. Damages information. The defendant was ordered not to refer in open court to the details of the claimant’s claim for damages as set out in the schedule of loss, or to other details of that calculation. The parties remained entitled to refer to the overall size of the claim.
3. Five documents. The court accepted, for the purposes of the ruling, that each document was proprietary or could otherwise be regarded as confidential as between Bombardier and Hitachi. The documents were not to be referred to in open court.
4. Use in evidence. Experts could be cross-examined in relation to the documents, subject to appropriate confidentiality safeguards. Before any proposed cross-examination of a Hitachi witness concerning the documents, the defendant had to identify the proposed area of questioning to the trial judge. The trial judge would then decide whether the questioning was permitted and whether further safeguards were required.
5. Provisional nature of order. The order, in whole or in part, remained subject to further direction by the trial judge. The interlocutory judge would not irreversibly restrict the trial judge’s management of the evidence.

Not stated in the judgment.