HT-2024-000271 - [2024] EWHC 3039 (TCC)

As set out above, the application for disclosure has been restricted both before and during the hearing before me.

The first matter I must consider is whether a prima facie case has been made out by RHH that there has been a failure to approach the procurement process correctly.

I have already concluded in the context of the application to lift the automatic suspension that there is a serious issue to be tried. In those circumstances I also conclude that RHH has established a prima facie case for the purpose of deciding whether to order early specific disclosure of documents.

In my judgment all the documents sought in categories (1) to (4) as now limited (as applying only to consideration of RHH’s tenders) are relevant documents.

I have inquired through Mr Patel as to the volume of documentation falling within categories (1) to (4). It became apparent in relation to category (4) that there are no “model answers” – a matter to which I have referred above. This should be formally confirmed. Otherwise, there is apparently one document to be disclosed in respect of category (4).

As to categories (1) to (3) there were, I am told, 14 evaluators and 1 moderator. Their files and notes are held electronically. It does not seem to me that the volume of documentation will be very substantial.

Whatever the volume of the documentation, Mr Patel, on behalf of OGL, objects to disclosure not only on the basis that RHH has not made out a prima facie case (a submission which I have rejected above) but also on the basis that the reasons and explanations already given give RHH all it needs to plead its case.

In my view, these documents will be documents to be disclosed upon standard disclosure in these proceedings in respect of the Scoring Challenge, which raises fairly and squarely issues as to how the scoring process was carried out. Thus, the question is whether this disclosure should be given now.

In my judgment, this relatively limited disclosure is appropriate at this stage. It will enable RHH to consider whether its claim is appropriately pleaded, and, more importantly, to assess whether it is appropriate to proceed with this action at all.

As to category (5), I indicated during the hearing that I would only be minded to order disclosure in respect of the allegation that the role of Ms Nicklin gave rise to a conflict of interest. It seems to me likely that the emails referred to in the evidence (see paragraph 55 above) are likely to be either the totality of disclosable documents, or close to that total. It is possible that there might also be some documentation concerning the conversations referred to in paragraphs 49 and 50 of Mr McIntosh’s witness statement quoted at paragraph 55 above, if, for example, these were matters discussed internally within OGL’s organisation.

If there is such documentation, then it is in the interests of justice that it should be disclosed.

Accordingly, the application for disclosure succeeds, but in respect of items (1) to (4) in the more restricted form sought during the hearing, and in respect of item (5), only in respect of any conflict of interest arising out of the role of Ms Nicklin.