Lime Technology Limited v Liverpool City Council

Confidentiality rings in procurement litigation require a fact-sensitive balance between protecting highly sensitive commercial information and enabling the dissatisfied tenderer to understand and pursue its challenge.

Excluding a party’s employee from important documents is exceptional. A client representative will ordinarily be admitted where the information must be assessed by someone with relevant commercial knowledge, particularly at the early disclosure stage of a procurement challenge. Staged or external-advisers-only disclosure may be appropriate in some cases, but it is not a default solution. Undertakings and carefully defined restrictions may adequately address misuse risks.

Lime Technology Limited, an unsuccessful tenderer, challenged Liverpool City Council’s decision to award a micromobility-services concession to Bolt Operations UK Limited. Lime alleged, among other matters, that the Council had failed properly to evaluate or reject Bolt’s allegedly abnormally high tender.

Lime sought disclosure of Bolt’s confidential pricing information under a proposed confidentiality ring. The dispute concerned whether a senior Lime employee with relevant commercial knowledge should be admitted, or whether disclosure should initially be limited to external advisers. Bolt objected because of the risk of misuse or inadvertent use of its pricing information. The application required the court to determine the appropriate composition and timing of the confidentiality ring.

1. Application granted. Mr Raccagna was to be included in the confidentiality ring, subject to the proposed undertakings. The court rejected the Council’s proposal for an external-advisers-only or staged process.
2. The court’s discretion required a balance between Lime’s interest in the fullest possible access to relevant material and Bolt’s legitimate interest in protecting highly sensitive commercial information. Relevant considerations included the severity of the identified risk, the importance and nature of the information, the role the documents would play in the proceedings, practical difficulties in policing misuse, and the receiving party’s structure and ability to use the material.
3. Excluding a party’s officer or employee from important documents is exceptional. There is no universal confidentiality-ring order suitable for every case or every procedural stage. External-eyes-only arrangements remain exceptional, and any restriction must be justified by the circumstances.
4. In procurement challenges, early access by a client representative may be necessary. A disappointed tenderer ordinarily has limited visibility of the evaluation process before disclosure and must make an informed decision whether to continue the litigation. Assessing whether an abnormal-pricing challenge has sufficient credibility, and formulating any amended pleading, required commercial knowledge which Lime’s lawyers could not provide alone.
5. An independent expert was not a satisfactory substitute on these facts. Lime was entitled to form its own view using its own knowledge and experience, and the evidence did not identify a suitable and available expert.

First-instance decision on an application concerning the composition of a confidentiality ring. No appellate history was stated in the judgment.