30 March 2020

Commercially confidential information is often central to court proceedings in procurement and competition claims (as well as some IP claims and others). Confidentiality can in some cases be maintained through, often complex, confidentiality rings. Confidentiality rings require Court supervision and can form the basis of disputes and court decisions themselves. 

The scope of what is confidential information and the permission to access it has again arisen (in competition law proceedings) in Infederation Ltd v Google LLC and others [2020] EWHC 657 (Ch).

The principles surrounding closed material procedures (such as confidentiality rings) are well known (see e.g. Al Rawi v Security Services [2011] UKSC 34). They are not, however, always easy to implement in practice as they involve the conflict between (i) the natural justice of knowing the case against you and the evidence on which that case is based; and (ii) the need to limit disclosure of sensitive information to a competitor (or more widely) to protect legitimate commercial interests.

While the Courts recognise that closed material procedures may be necessary in some cases, they have consistently held that such procedures are 'exceptional' (this does not mean they are rare, rather that they must be justified in each case) and must be as limited as possible. The Court will consider factors such as how confidential material really is and the likelihood and consequences of the material ‘leaking’ to individuals outside of the confidentiality ring. The contents of winning bids in procurement cases are often the subject of such consideration where the price/rates offered may be seen as confidential, but arguments arise about other business solutions/innovation proposed. In competition cases, parties are often direct competitors and invariably operate in the same markets, so much of how they take key business decisions, such as what prices to charge, and important confidential know-how may be considered for inclusion within a confidentiality ring.

In this case, the Claimant sought to add its independent expert to two highly restricted confidentiality rings, into which Google had disclosed confidential, technical material relating to the signals and techniques it used to rank search results. Google had described this information as its 'crown jewels' and it was undisputed that the material was highly confidential. Ultimately, the Court held that the expert should be admitted to both rings (having given an appropriate undertaking) or Google should renounce reliance on certain parts of its evidence that referred to material within those rings that the Claimant needed its expert to see to understand the evidence against it and to respond. 

Mr Justice Roth was also critical of the 'increasing tendency for excessive confidentiality claims to be asserted over documents and information…only for those claims to be curtailed or renounced in response to protests from the other side or intervention of the court.' He noted, 'this is wasteful of time and costs, and it is not the way modern litigation should be conducted'. The clear message was that protections, such as confidentiality rings, should be sought only for materials that really need protection.

The Court indicated that parties should often be less extensive in their claims for confidentiality and only seek to limit disclosure of genuinely sensitive information where the loss of confidentiality would prejudice them. In this respect, the Court will not always take the same view of the sensitivity of confidential information as the litigants.

This article was written by Ian Tucker. If you have any queries about what was discussed in this update, please contact Ian Tucker or your usual Burges Salmon contact.

Key contact

Ian Tucker

Ian Tucker Partner

  • Dispute Resolution
  • Procurement Disputes
  • Procurement and Subsidy Control

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