Hidden in plain sight

September 18, 2017

Director, Lisa Boyd looks at the question of confidentiality and disclosure in the light of the recent TCC guidance note.

On 17 July 2017, the Technology and Construction Court Guidance Note (the guidance note) on procedures for public procurement cases came into force.  The guidance note aims to help practitioners negotiate the management of public procurement claims, which are becoming increasingly more complex. Despite Northern Ireland being a much smaller jurisdiction than that covered by the Technology and Construction Court in England and Wales, the principles which the guidance note addresses come up regularly in Northern Ireland procurement cases and therefore practitioners based in this jurisdiction may wish to keep one eye on the use of the guidance note as similar procedures may be introduced by the Commercial Judge in due course should they see fit to do so.

The guidance note
The introduction to the guidance note describes how cases seeking to set aside the decision to award a contract can be on the back foot due to a lack of information. One of the core difficulties of any such proceedings is that, due to the short standstill period, proceedings need to be issued quickly and claimants can feel that they are in an information vacuum. This normally results in an application to court for the disclosure of competing tenderers’ bids. In such circumstances, there are likely to be three different competing concerns:

  • firstly, the aggrieved tenderer who wishes to seek information to substantiate its claim;
  • secondly, the contracting authority who is concerned about its confidentiality obligations; and
  • thirdly, the successful tenderer who wishes to keep its bid confidential. Proceedings are normally between the unsuccessful tenderer and the contracting authority, however in such circumstances it is common for the successful tenderer to make an application to court to be joined to proceedings.

Throughout the entirety of a procurement challenge there are competing interests regarding confidentiality. Following the case of Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust [2013], contracting authorities are encouraged at an early stage to disclose any key decision materials. This can often alleviate the need for a claim, however it places authorities in a difficult position with regards to issuing such materials without breaching any confidentiality obligations.

As per Nassé v Science Research Council [1979], confidentiality is not a bar to disclosure. The court will however seek to balance the need for disclosure against the need for confidentiality and will seek to ensure confidentiality is protected where necessary.

Issue of proceedings
The next possible disclosure of confidential information is upon the issuing of the particulars of claim (statement of claim in Northern Ireland) or indeed subsequent pleadings. The guidance note [Nassé v Science Research Council [1979] UKHL 9; Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC)] now provides that pleadings which contain confidential information should be lodged in court in the following manner:

  • ‘a non-confidential version of the pleading redacted so as to preserve confidential information’; and
  • ‘an un-redacted version marked as confidential and sealed in an envelope also marked as confidential’.

The guidance note goes further, suggesting that confidential information should be in a self-contained schedule or annex and that any confidential information served electronically should be further protected by way of passwords etc.

At para 30 of the guidance note it is suggested that documents that contain confidential information are printed on coloured paper so that they are easily identifiable in any bundle. This seems sensible as it seeks to prevent inadvertent disclosure through human error.

To further protect confidentiality there is a section regarding redactions stating how and when redactions can and/or should be used. The guidance note then helpfully suggests that a schedule should be prepared explaining why each section has been redacted in order for the court to determine whether or not the principle of confidentiality applies. An unredacted version of the documents should be lodged in court with the redactions highlighted so that the court can see the information beneath.

Confidentiality ring
Another common feature of procurement proceedings is the setting up of a confidentiality ring and the giving of undertakings. Some 15 paragraphs of the guidance note cover confidentiality rings and undertakings, highlighting the importance of these safeguards. Confidentiality rings are normally established to allow confidential information to be disclosed to certain people on the basis of their undertaking not to disclose the information to others. It is usual process that the court will be involved in the setting up of the confidentiality ring, agreeing scope and limitations, the persons admitted to the confidentiality ring and any undertakings which need to be given. It is commonplace for the legal advisers to be admitted to any ring.

In some cases, an employee may be required to be admitted to the ring as they are the party who will understand the materialdisclosed and be able to give instructions to the legal advisers. Where an employee is to be admitted to the confidentiality ring, the court is likely to closely examine their need to be admitted considering the risks and benefits of them being involved. In some cases, confidentially rings can be set up on a two-tier basis. This two-tier system can have legal advisers in the top tier who see all of the documents with a second tier for people, such as employees, who should only see certain documents or documents in redacted form.

In respect of undertakings for a confidentiality ring, they normally encompass the prevention of the use of the material disclosed
within the confidentiality ring for any other purposes. It is also commonplace for instructions to be given with regards to storage and destruction of the material. Further guidance is given on more limitations that can be placed where there are particular concerns regarding confidentiality.

The guidance note regarding confidentiality provides a helpful overview of the procedures already in practice. Most procurement
practitioners will have encountered redaction of disclosed materials and confidentiality rings, however the colour-coding of confidential papers appears to be a clever way of hiding confidential documents in plain sight and protecting practitioners from accidental disclosure.

Best practice
Currently, the courts in Northern Ireland do not have a formalised document to cover those items set out in the guidance note, however practitioners in this jurisdiction will be well versed in the process of redaction and confidentiality rings. A similar protocol may be issued in the courts of Northern Ireland in due course should the Commercial Judge see fit, however it may be useful for practitioners outside of the jurisdiction of the Technology and Construction Court to refer to the guidance note as best practice.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.

This article is featured in the Procurement & Outsourcing Journal for September/October 2017.