HT-2022-000132 - [2025] EWHC 1058 (TCC)

Into this category, Mr Hossain placed lines 1 to 7 and 17 to 18, although from the list of 20 contested groupings provided to me, it seems that line 18 is no longer in issue.

I start by saying that, as a matter of principle, disclosure issues do not supplant the pleaded cases. Their purpose is to encapsulate the issue that arises and by reference to which disclosure can be undertaken. Where there are agreed issues, the parties and the court should not generally then need to go back to the statements of case to identify what the issue is but, if any dispute arises, it is the statements of case and not the issue that should drive the scope of disclosure.

This disclosure issue arises out of the claimants’ claim that modifications were made to the Enabling Agreement and Licence (“the Challenged Modifications”) which collectively or individually were substantial within the meaning of regulation 43 of the Concession Contracts Regulations 2016; that the modifications are not justified under the regulation; that, therefore, there should have been a new concession award procedure undertaken; and that there is a real prospect that that procedure would have had a different outcome (in the claimants’ favour).

The Amended Particulars of Claim at paragraphs 36 - 38 set out the claimants’ case in respect of the Modification Notice as follows:

“36.

The Modification Notice asserts that the Challenged Modifications were brought about by circumstances which a diligent contracting authority/ entity could not foresee. Two specific matters are relied upon in respect of the Modifications pleaded above.

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Litigation brought challenging the outcome of the 4NLC. The litigation referred to was brought by Camelot, the incumbent licensee and the other unsuccessful tenderer in 4NLC, as well as Camelot’s sub-contract provider, IGT.

….

37.

It is asserted by the Defendant in the Modification Notice that it was unforeseeable that IGT would start proceedings regarding 4NLC as it was a subcontractor to the incumbent provider, or that IGT would continue proceedings once Camelot withdrew its proceedings on 16 February 2023, or that negotiations with IGT would be so protracted and challenging.

38.

It is the Claimants’ case that this position is unsustainable. …..”

The claimants then set out their case as to why a challenge by a subcontractor could or should have been foreseeable. Further, the claimants dispute the reasons for the modifications which, in summary, they argue lie at the door of the Interested Parties.

The GC denies this claim. It points out that it does not rely on litigation by Camelot as unforeseeable. As to proceedings by a subcontractor, the GC maintains that it was unforeseeable that IGT would bring proceedings and maintain them after Camelot withdrew and that negotiations for handover from IGT would be protracted and challenging.

The disclosure issue, therefore, to an extent goes beyond the pleaded issue because it includes the likelihood of a legal challenge by any bidder as well as any bidders’ subcontractors. It is important that the issue is framed in terms of likelihood rather than mere possibility, which fits with the pleaded case as to foreseeability. The issue is also time limited: 31 August 2020 to 15 March 2022.

This issue bulks large in the claimants’ submissions because it is their case that the issue is one which makes it more likely that the defendant would deliberately disclose legal advice going to this issue. The defendant emphasises that the agreement of the disclosure issue does not in itself amount to a waiver of privilege.