Healthcare At Home Ltd v The Common Services Agency [2011] ScotCS CSOH_22 (01 February 2011)

Healthcare At Home Ltd v The Common Services Agency [2011] ScotCS CSOH_22 (01 February 2011)

The commercial sensitivity of most of the BUPA tender document is low and does not outweigh the interests of justice in disclosure. Only sections 8.3.1 and 8.3.2, and redacted portions of 8.3.3, are sufficiently confidential to justify non-disclosure. The remainder must be disclosed, subject to appropriate safeguards.

Citation
[2011] ScotCS CSOH_22
Parties
Pursuer: Healthcare At Home Ltd; Defender: The Common Services Agency; Interested Party: BUPA Home Healthcare Ltd
Jurisdiction
Scotland
Judgment Date
01 February 2011
Procedural Posture
Commercial Judicial Review / Procurement Challenge / Interlocutory Application for Disclosure of Documents
Outcome
Pursuer's motion for disclosure granted in part
Legal Topics
Confidentiality of Tender Documents, Disclosure in Procurement Litigation, Balancing Commercial Sensitivity and Justice, Freedom of Information in Procurement
Public Procurement Commercial Law Civil Procedure Confidentiality of Tender Documents Disclosure in Procurement Litigation Balancing Commercial Sensitivity and Justice Freedom of Information in Procurement

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Parties

Healthcare At Home Ltd

Pursuer

The Common Services Agency

Defender

BUPA Home Healthcare Ltd

Interested Party

Procedural Posture

Commercial Judicial Review / Procurement Challenge / Interlocutory Application for Disclosure of Documents

Legal Issues

  1. 1 Whether BUPA's tender documents should be disclosed to the pursuer despite claims of commercial confidentiality
  2. 2 How to balance commercial confidentiality against the need for fair disposal of litigation

Ratio Decidendi

The commercial sensitivity of most of the BUPA tender document is low and does not outweigh the interests of justice in disclosure. Only sections 8.3.1 and 8.3.2, and redacted portions of 8.3.3, are sufficiently confidential to justify non-disclosure. The remainder must be disclosed, subject to appropriate safeguards.

Court Disposition

Pursuer's motion for disclosure granted in part

Orders

  • Order for disclosure of BUPA tender documents except for sections 8.3.1, 8.3.2, and redacted portions of 8.3.3, subject to safeguards to be agreed within seven days.