Discovery in procurement cases: Word Perfect Translation Services Limited v Minister for public expenditure and reform

Supreme Court outlines a Proposed Approach for Discovery in Procurement Cases - Word Perfect Translation Services Limited v Minister for Public Expenditure and Reform, judgment of the Supreme Court of 25 September 2020

Summary

In Word Perfect Translation Services Limited v Minister for Public Expenditure and Reform, the Supreme Court (per Clarke CJ) handed down an important judgment in respect of discovery in procurement cases. The Supreme Court judgment provides helpful guidance on the principles to be applied to discovery in procurement cases and proposes a new approach for dealing with discovery so that there is a speedy resolution of the proceedings.

Background

The case related to a challenge by Word Perfect to a decision to award a contract for the provision of translation services for An Garda Síochána to a rival tenderer. Word Perfect claimed that there were errors in the conduct of the tendering process. The High Court granted discovery of nine categories of documents sought by Word Perfect. The Minister appealed to the Court of Appeal which overturned the decision of the High Court in its entirety. Word Perfect was subsequently granted leave to appeal to the Supreme Court.

Supreme Court Judgment 

Discovery in the context of vindicating EU rights

At the outset, the Court acknowledged a potential EU law dimension to the issues which arose. The Court accepted that EU law does not require any particular regime for the disclosure of materials and as such EU Member States enjoy procedural autonomy in this regard. However, the Court made clear that, by virtue of general principles of EU law, Member States must ensure both an effective remedy and procedures equivalent to those which would be involved in similar national law litigation.

Principles to be applied to discovery in procurement law proceedings

The Court considered whether special rules for discovery should be applied in procurement law proceedings. The Court acknowledged that while procurement proceedings bear similarities to judicial review proceedings, the standard or review and scope of the remedies available to the Court are potentially wider. This widened scope has the potential to widen the categories of documents that may be deemed relevant to the proceedings. Nevertheless, the Court emphasised that relevance must first be established before the Court can proceed to consider issues of confidentiality.

The Court outlined the following four principles to be applied in procurement cases:

• the fact that information may be confidential is not, in and of itself, a barrier to its disclosure
• the requirement that discovery be proportionate requires a balance to be struck between the extent to which ordering discovery of a particular category of document may give rise to the disclosure of confidential information and the extent to which it may be reasonable to anticipate that the information concerned may be important to a just and fair resolution of the proceedings
• it may be disproportionate to direct discovery which would involve the disclosure of confidential information where no credible basis has been put forward to suggest that there is a sustainable basis for that aspect of the claim in respect of which it is said that the confidential information concerned is relevant. In procurement cases, the extent to which adequate reasons for the result in the tender competition have been given may be relevant
• the judge conducting the substantive hearing may well be in a better position to identify whether the disclosure of confidential information is really necessary to enable a fair result of the proceedings to be achieved

Confidentiality rings

In the context of discovery proceedings involving confidential information, the Court advocated the use of "confidentiality rings". The Court cited the recent decision in Goode Concrete v. CRH plc & ors. [2020] IECA 56 where the Court of Appeal affirmed a High Court decision endorsing the use of confidentiality rings in competition proceedings.

Discovery ordered

In response to the nine categories of discovery sought, the Court ordered immediate disclosure of the final evaluation report (subject to redactions) in respect of two areas:

• where no reasons were given for the marking in the areas concerned (e.g. because the successful tenderer either scored equal or less marks than the unsuccessful tenderer)
• where issues arose regarding the application of undisclosed award criteria

The Court determined that any further discovery should be dealt with by the trial judge conducting the substantive hearing including in respect of claims relating to an abnormally low tender and criteria where there was a small margin between Word Perfect and the successful tenderer.

New approach for procurement discovery

At the conclusion of its judgment, the Court proposed a new approach to discovery in procurement cases.

In the first instance, immediate discovery must be directed of documents which are relevant and which either (a) do not involve confidentiality (or any other issue which might be relied on to suggest that relevant documents did not have to be disclosed) or (b) where it is clear that the disclosure of confidential information will be required but where it is left to the trial judge to determine whether further disclosure may be necessary. For documents contingent on an iterated approach, those documents should be the subject of an affidavit sworn contemporaneously with the main affidavit of discovery but that additional affidavit would not be handed over during the discovery process. Instead, the additional affidavit and documents referred to in it should be available in court so that there can be immediate disclosure of any materials which the trial judge directs.

The Court was satisfied that such an approach would increase the likelihood of a speedy resolution to proceedings.

Comment

The Supreme Court's judgment is noteworthy in that it proposes a new iterative approach to the discovery process in procurement cases. The proposed approach should contribute to a shortened discovery phase in procurement proceedings which can be particularly important where there is often an automatic suspension in place preventing the public body from concluding the contract or framework agreement. However, the new iterative process could potentially lengthen the duration of the substantive hearing and could delay full and proper disclosure (and new claims arising on foot of that disclosure) to the substantive hearing. Given the relatively few substantive hearings that come before the courts in procurement cases, it may be some time before it can be determined whether the new approach does result in a speedier resolution of proceedings.

For more information on this topic please contact Anna-Marie Curran, Partner or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 1 October 2020