The tail that wags the dog: What is reasonable and proportionate documentary disclosure in the context of procurement litigation?

We consider two recent judgments on the appropriate scope of disclosure for both a contracting authority and a challenging bidder

12 December 2022

Summary

The extent of documentary disclosure which a contracting authority or a challenger should be required to give in a procurement challenge is often a contentious issue. To paraphrase the comments of Mr Justice Stuart-Smith in the Rail Franchising Litigation [2020], disclosure should not become a “tail that wags the dog”, yet equally it has a vital role in revealing “the reasoning that prevailed at the relevant time and not merely an ex post facto justification” as might be found in a witness statement. That is perhaps more so in light of the growing judicial recognition that “The process of civil litigation itself subjects the memories of witnesses to powerful biases” (Instrument Product Development v W D Engineering [2022]).

One of the most consequential changes to litigation in recent years was the introduction of the regime of targeted disclosure now called “PD57AD”. Notwithstanding its many critics, this new regime seeks to achieve the aim of streamlining disclosure by forcing parties to target what they want from their opponent. Yet procurement challenges are exempt from this regime. In procurement litigation, so-called ‘standard disclosure’ remains the usual order. This requires each party (although usually the onus is more on the contracting authority who ran the procurement) to undertake a ‘reasonable search’ for ‘relevant’ documents.

What is a ‘reasonable search’ depends upon factors including the sums in issue, the nature and complexity of the dispute, and the ease and expense of retrieval. We are in an age where procurement documents are generated electronically (often collaboratively on the cloud) and where procurement portals and electronic evaluation tools have proliferated, generating potentially vast pools of electronic data for each procurement. However, disclosure tools are rising to meet the challenge of how to interrogate these pools of documents, bringing key documents to the surface, and minimising the extent of review of irrelevant documents. 

This has necessarily impacted what a ‘reasonable search’ looks like. However, the recent disclosure judgment in InHealth Intelligence Ltd v NHS England (Disclosure) [2022] 11 WLUK 69 provides a useful illustration that the standard approach is not always ordered. As further explored below, this is a case involving very limited grounds of challenge and an expedited trial. There were not widespread allegations of manifest errors in the evaluation of bids. In those specific circumstances, the contracting authority proposed a disclosure search which was correspondingly targeted and narrow, and this was accepted by the Court as appropriate, given the particular issue in question.

In addition, what constitutes a ‘relevant’ document is dictated by the pleaded issues. These are the facts and matters stated in the respective parties’ Particulars of Claim, Defence, Reply and any responses to so-called ‘RFIs’ (Requests for Further Information). Bromcom Computers Plc v Academies Enterprise Trust [2022] 10 WLUK 402 provides a useful illustration of why parties should carefully consider the RFI exposure and disclosure implications of their pleaded arguments. In this case, the challenger’s argument relied on its success in previous procurements, leading to the authority’s successful application to force the challenger to provide information about those previous procurements.

INHEALTH INTELLIGENCE LTD V NHS ENGLAND (DISCLOSURE) [2022] 11 WLUK 69

This decision relates to a disclosure application ahead of the expedited trial between InHealth Intelligence and NHS England. You can read about the unusual facts underlying the case in our previous update. In brief, the case concerns NHS England’s decision to exclude InHealth from a competition after a technical issue prevented a document being uploaded to the procurement e-portal before the submission deadline. InHealth argue that NHS England should not have excluded them for this technical error, and that NHS England acted irrationally and disproportionately in doing so.

Ahead of the expedited trial, NHS England have been directed to give “standard disclosure”. This (broadly) means they must conduct a reasonable and proportionate search for, and disclose to InHealth, all documents supporting or undermining either party’s case. The issues for disclosure had largely been agreed but there was a point of contention around how NHS England should conduct its search.

Rather than a large-scale document capture, intelligent culling, and review exercise, as is often seen in procurement cases, NHS England proposed a much narrowed and targeted approach, given the underlying facts in issue and the tight expedited timeframe for the litigation. NHS England asked key employees to review their emails and provide legal representatives with documents that related to the “procurement process”.

InHealth submitted that a wider search should have been conducted (and by NHS England’s solicitors) and that “procurement process” was too narrow and wouldn’t capture documents relating to the portal’s design or NHS England’s decision to exclude. However, the Court decided that NHS England’s pragmatic approach was appropriate given the very limited issue in dispute and the fact this was an expedited trial, and refused InHealth’s application. NHS England was not required to expand its search.

In coming to this decision, the Court considered the issues requiring documentary evidence (and documents likely to be located through searching) and concluded that they did not require an open-ended search and the harvesting of vast quantities of documents under close legal supervision. The issues in dispute requiring disclosure were narrow – namely: i) what the ITT required; ii) how the e-portal operated; and iii) what discretion was available to NHS England. Importantly, it was rejected that the design and development of the e-portal system was a relevant issue requiring disclosure. It was therefore deemed proportionate in the circumstances (i.e. ahead of an expedited trial during a paused procurement) for employees to conduct their own targeted searches (provided instructions were sufficiently clear and broad) – especially as this still produced around 3,000 documents for legal manual review.

This decision illustrates that what a ‘reasonable search’ for documents looks like is case-specific. Here, the expedited trial (where disclosure is generally more limited given the timescales involved) and the very narrow grounds of challenge in particular merited a more targeted and narrow approach to disclosure than usual in procurement cases. 

BROMCOM COMPUTERS PLC V ACADEMIES ENTERPRISE TRUST [2022] 10 WLUK 402

The substance of the litigation is a challenge to the award of a call-off contract for the provision of a cloud-based IT product. Bromcom, an unsuccessful tenderer, argues (amongst other matters) that AET’s evaluation put too much weight on price and that if different price v quality weighting of criteria had been applied then Bromcom’s bid would have been assessed as the most economically advantageous tender (MEAT). In support of this position, Bromcom cited its previous successful tenders where other authorities had apparently given greater weight to non-price elements.

AET raised an RFI asking i) what other bids Bromcom had been successful in and ii) how those other bids were evaluated and scored. Bromcom resisted the request, asserting that the further information requested was irrelevant. The Court disagreed and granted the application, concluding that the RFI was “confined to matters which are reasonably necessary and proportionate to enable the other party to prepare their case or understand the other’s case” (the test in Part 18 of the CPR). Bromcom’s previous successes were relevant to its pleaded argument on causation – i.e. what the Authority would have done had it evaluated differently – and AET were entitled to further information to understand that pleaded argument.

It’s too early to know whether Bromcom’s tender history will have a bearing on the case but, whatever the outcome, this judgment is a helpful reminder that referring to information outside of the competition under challenge has the potential to cause disclosure later on.

This article was written by members of our Chambers Band 1 Ranked Procurement Team: Richard Binns (Partner), Lloyd Nail (Senior Associate) and David Hine (Associate)

Key contact

Richard Binns

Richard Binns Partner

  • Dispute Resolution
  • Procurement Disputes
  • Healthcare

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