Citation: [2017] EWHC 2425 (TCC)
The claimant had been unsuccessful in its bid for a contract with the defendant and sought an extension of time for serving its particulars of claim and an order for specific disclosure. This case related to the manufacture and supply of a railway. The company, X, that successfully won the tender, had made a bid based on a carousel system whereas the claimant had based theirs on a long-line system. This allowed X to make their bid 18% cheaper. X refused to disclose certain documents that the claimant had requested on the basis that they were highly commercially sensitive. The claimant argued that it could not serve its particulars of claim until it had received this requested disclosure.
Coulson J refused the extension of time. The claimant had embarked on a risky course of waiting until it received the documents before it served its particulars of claim. It should have served on the basis of the information available. It was plainly arguable that the design was flawed and abnormally low. The claimant had sufficient information to plead that the bid had been abnormally low and so no extension of time was needed.
Coulson J also held that the claim for specific disclosure had not been made out. There were no difficulties in restricting the confidentiality ring to lawyers, at least at the initial stage. It was usual for outside advisers to sign an undertaking that they would not be involved in future procurements before they were given access to highly sensitive information. The court was not prepared to sanction the widening of the confidentiality ring in these circumstances. The disclosure of documents that would that would reveal the DNA of the whole company would be disproportionate and unjustified.
http://www.bailii.org/ew/cases/EWHC/TCC/2017/2392.html
Sarah Hannaford QC and Emma Healiss were instructed for the Defendant.
