HT-2025-000129 - [2025] EWHC 1654 (TCC)

As I have said above, I accept that Bolt has legitimate commercial concerns as to the risk of highly sensitive information being leaked and/or misused.

However, I also accept that Lime has a legitimate interest in someone from within its organisation having access to the pricing information so as to assess whether the challenge based upon allegedly abnormal pricing in Bolt’s tender has sufficient credibility to justify pursuing the challenge presently before the Court.

That assessment and the formulation of any amendments to the pleadings to reflect the disclosed information are not matters which a lawyer can carry out without the benefit of advice from someone experienced in the commercial activity in which Lime and Bolt are engaged: in particular I would regard it as problematic for Lime’s solicitors to make the usual Statement of Truth without informed instructions from either someone within the Lime organisation or an expert witness.

These short term considerations suggest to me that the nettle must be grasped now: as is usual in procurement challenges, the disappointed tenderer has limited visibility of what went on in the evaluation of the tenders until initial disclosure has been given. Once initial disclosure has been given the challenger must decide whether to commit time and money to the proceedings (often at considerable inconvenience to the challenged authority and successful tenderer). This needs to be an informed decision: this is explained in the Second Witness Statement of Ms Katharine Gough, Lime’s solicitor. I accept her evidence.

Ms Hardey’s Third Witness Statement at paragraphs 11 to 21 explains why leaving matters in the hands of external lawyers would not be a satisfactory course to adopt. I accept her evidence.

The authorities which I have cited emphasise that the inclusion of a client representative in a confidentiality ring is the norm, not the exception, and in procurement challenges for the reasons I have just given, needs to occur at an early stage.

For these reasons I reject LCC’s position that the Court should allow a staged process.

I have considered whether it would be a satisfactory alternative to include an independent expert in the CRO rather than a client representative. It may be that in some cases that would be a satisfactory solution, but I do not regard that as being a satisfactory solution in this case. Firstly, I accept the submissions made on behalf of Lime that it has not identified a suitable and available witness. Secondly, and most importantly, I accept that it is Lime which must make the informed decisions to which I have referred above. I do not regard it as satisfactory for that to be delegated to an independent expert: Lime is entitled to form its own view based upon its own knowledge and experience.

For these reasons I accept that Mr Raccagna should be included within the CRO, subject, of course, to giving the proffered undertakings.