A disclosure too far

In April this year I blogged on the case of Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust in which the court allowed applications for specific and pre-action disclosure of documents against the contracting authority provided these were tightly focused and relevant to the decision being challenged. Such an application was allowed in order to redress the balance of information where bidders generally have access to very little information before they must bring proceedings for breach of the Regulations.

What was clear from Roche, however, is that the court will not allow generalised requests for documents of only marginal relevance and this has been reiterated in the recent case of Pearson Driving Assessments Ltd v The Minister for the Cabinet [2013] EWHC 2082 (TCC). In Pearson the bidder was facing an application by the contracting authority to lift the automatic suspension. It had already been agreed between the parties that certain documents were relevant and that disclosure of them would be given very soon after the application to lift the suspension. However, Pearson sought disclosure of these documents prior to the application to lift the suspension because they considered that it would help them to establish that there was a 'serious issue to be tried' one of the key questions the court must consider in deciding whether or not to lift the automatic suspension.

Notwithstanding that the documents sought were acknowledged to be relevant and would be disclosed soon after the hearing in any event the High Court refused the application for early disclosure on the basis that they were not necessary to enable Pearson to establish that there was a serious issue to be tried.

The decision shows that while the court is mindful of the need to be fair and to give the Claimant access to documents which are necessary to establish its claim it will only make early orders on disclosure where the documents sought are necessary. It will not sanction a random fishing expedition and will look forensically at what is being sought before making any order.

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