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

As Mr Hossain did, I take these lines together as they are all so-called Scribe templates. The claims to privilege are variously that the documents are wholly or partially privileged.

The document group at line 24 is 11 versions of the same document “Scribe Template – Moderation Agreed Consensus Score and Rational Sheet – Applicant 7” dated 13 January 2022. The document is concerned with specific sections of the bid. The document refers to a moderation finalisation session. It lists a moderator, two scribes, evaluators, and others by name, none of whom are lawyers. It records the final score as 9 – “Credible but low confidence in delivery”. There are tracked changes in the document and comments in boxes with initials. Most of the comments are from “SB” which accords with one of the people expressly named. There is then a single comment from “AF”. Against “Scoring criteria – negative deliverable”, AF’s comment is [REDACTED].

It is apparent from that that AF was not at the relevant meeting and that he/she is not one of the scorers or authors of the document but no more than that. AF is now identified as Anne Ferrario who is part of the GC’s legal team. She was not identified as such until 9 January 2025 and, for the reasons I have given, I do not accept that BCLP knew or ought to have known that she was a lawyer. HL say that the document was provided in native form, from which it would be possible to identify that the author of the AF comments was, indeed, Anne Ferrario but that in itself does not identify her as a lawyer and there is nothing in the comment that would alert a reviewer to its being legal advice.

This raises again the question of the knowledge or experience of the reasonable solicitor. What is submitted on behalf of the GC in the Annexure is that it is common for there to be a legal review of notes of moderation sessions so that, if there are comments from someone not at the meeting, it is to be expected that they are made by the legal reviewers. Ms Hannaford elaborated on that submission making the point that because the evaluation and moderation documents are the ones that will be pored over by claimants, they are exactly the sort of documents where comments from someone not at the meeting would be from a lawyer and AF’s comments would be the sort of comments made.

These submissions seem to me to be a bridge too far particularly where there is no obviously legal advice in the comment made. In this instance, the comment simply [REDACTED]. That is as much a drafting comment as it is anything else.

I would note further that the premise of the GC’s submission is not, in any case, accepted and that Mr Bryant’s experience is different. His experience is that it is common for lawyers to be present at moderation meetings and give advice. But his view is that for persons (lawyers or otherwise) who were not present to make drafting comments on notes of moderation meetings is extremely troubling. It is not necessary for me to determine who is right on this topic or what is good or proper practice. It is simply the case that I do not consider that the reasonable solicitor could be expected to jump to the conclusion that any comments from those not at the meeting were from lawyers and amounted to privileged legal advice.

The GC also argued that, as the claimants have accepted that similar documents disclosed with comments from HL and Capital Law are privileged, the same reasoning should apply to the documents with comments from the in house legal team. But if the test is whether it was an obvious mistake to disclose this document, then the same reasoning does not follow because it is not obvious that the comments are made by lawyers and give legal advice.

The document group at line 25 comprises 3 versions of a Scribe Template – “Applicant 7 – Moderation Agreed Outcome and Rationale Sheet”. In this case, the document contains two comments from “DC” who is now identified as Doug Cochran who is part of the GC legal team. The comment is the same comment repeated. It appears against passages in relation to the applicant’s compliance with requirements. The comment is to the effect that [REDACTED]. This is similar in nature to Ms Ferrario’s comment about the drafting of the document and it is difficult to see how a comment of this nature would alert any reviewer, however great their experience in the procurement field, to the fact that this was the advice of a lawyer which had been inadvertently disclosed.

Line 26 is a group of 5 versions of a Scribe template “Moderation and Agreed Outcome and Rationale Sheet”. The comments in issue are again those of “DC”. The first appears alongside a passage which addresses the applicant’s position that there is scope to increase the Scratchcard market, making comparisons with other countries. Mr Cochran comments that, [REDACTED]. He suggests that [REDACTED]. His second comment indicates that [REDACTED]. Again these are very much in the style of drafting comments in particular pointing out where something may be unclear or may benefit from fuller explanation but, unless one accepts the premise that the reviewer ought to know that the comments are made by a lawyer and are capable of being construed as legal advice, there is no obvious error in disclosing the document with these comments unredacted.