The Supreme Court has recently considered the proper approach to the application of the law of discovery in procurement cases.
In this long running case, the plaintiff challenged the award by the Minister of a contract for translation services to a rival bidder following a procurement process.1 The plaintiff applied for discovery of certain documents. This was successful in the High Court but overturned in the Court of Appeal. The plaintiff brought a further appeal against that decision to the Supreme Court.
In the Supreme Court, the Minister resisted the application for discovery on the basis that, amongst other things, the documents sought were not “indispensable” to the resolution of the proceedings and that the documentation sought in respect of the successful tender was commercially sensitive.
The EU law dimension
Given the EU law dimension to procurement matters by way of the Remedies Directive, in giving judgment, Clarke CJ first considered whether the application of EU law should inform the proper approach to discovery in a procurement case. He said that while EU law did not, of itself, require any particular regime for the disclosure of materials, it was also clear that, as a general principle, the procedures applied in any Member State, in litigation involving the potential vindication of EU law rights, must provide both an effective remedy and must equally provide equivalent procedures to those which would be involved in purely national law litigation of a similar type. Therefore, one question for the court was whether the law of discovery in Ireland met these requirements of equivalence and effectiveness?
General discovery principles
In looking at discovery, Clarke CJ said that it was clear from Tobin v Minister for Defence2 that ordinarily the sequence in which to consider discovery was to first determine whether the documents sought were relevant to the proceedings. If relevance was established then it would be presumed that the discovery was necessary but it was open to the requested party to seek to satisfy the court that this was not the case.
The bases on which a lack of necessity could be established might vary, but under that general heading it might be appropriate for the court to consider whether the disclosure of confidential information (including in particular information which was confidential to third parties) truly needed to be disclosed for a fair resolution of the proceedings.3 A requested party could also seek to persuade the court that the discovery was disproportionate to the likely utility of the documents to the fair resolution of the proceedings.
General principles applied to procurement cases
Clarke CJ confirmed that the same general principles applied in procurement cases albeit that certain issues arose with this application because the procurement process almost invariably involved commercially sensitive and confidential information in the shape of the tenders submitted by competitors. This similar application meant that there was no breach of the EU principle of equivalence. Exactly the same approach would be adopted by an Irish court in assessing how to approach a request for discovery of confidential information in any other proceedings.
How to deal with confidential information
Clarke CJ said that in a procurement case, when balancing the asserted need of a challenger to obtain information for the purposes of substantiating its claim, as against the furnishing of confidential information relating to its competitors, each case would be considered on its own merits. The court would seek to minimise the risk of injustice and ensure a fair and just resolution of the proceedings with the minimum disclosure of confidential information necessary to achieve that end. Additional comfort might be obtained if confidential materials were made available under a so-called “confidentiality ring”.
Clarke CJ explained that a confidentiality ring allows for limited disclosure of otherwise confidential documentation and information. Where a confidentiality ring is in place, the confidential documents and information in question are ordinarily made available in confidence only to the parties’ legal advisors. Where the information in question relates to a scientific or technical matter, the confidentiality ring may be expanded to include experts in that field. Where a confidentiality ring is established, it is usually provided for in the order for discovery. He noted that confidentiality rings are commonly used by the English courts in procurement disputes to protect commercially sensitive information, while also granting the discovery necessary for the fair disposal of proceedings.
A proposed course of action here
Clarke CJ indicated that in the case before him, an iterated process was required to achieve a proper balance between the competing interests of effectiveness and confidentiality. He directed immediate discovery of documents which were relevant and which either did not involve confidentiality (or any other issue which might be relied on to suggest that relevant documents did not have to be disclosed) or where it was clear, even at the interlocutory stage, that the disclosure of confidential information would be required.
Where this was not the case, he did not order immediate disclosure but directed that the position be preserved so that the trial judge could require further disclosure should it become clear at the hearing that this was necessary for a just and fair resolution of the proceedings. This approach should satisfy the requirement of the Remedies Directive that parties wishing to challenge public procurement decisions should have access to a speedy process as it removed the need for multiple discovery applications.
In practical terms this meant that all documents which were not subject to immediate disclosure should be the subject of an affidavit sworn contemporaneously with the main affidavit of discovery. However, that additional affidavit should not be immediately handed over to the other side. Instead, that affidavit, together with the documents referred to in it, should be available in court so that there could be immediate disclosure of any materials which the trial judge directed. This would include unredacted copies of any documents in respect of which a redacted copy had been made available at the main discovery stage.
Clarke CJ suggested that in future this approach should be adopted in relation to discovery in appropriate procurement proceedings.
This decision brings clarity to the application of the law of discovery in procurement litigation where, resolving the competing demands of disclosure and confidentiality can be particularly complex. It also reiterates that confidentiality provides no absolute bar to discovery. It is hoped that the novel and practical approach of a dual affidavit of discovery, which allows for a single document review process, will reduce the time and costs of discovery in such cases.