Private Hearings: How far will the Irish courts go to protect confidential tender information in public procurement proceedings?

In a ruling delivered in December 2025 (later confirmed in a judgment delivered on 12 February 2026), the High Court (the Court) acceded to a successful tenderer’s application, made on consent, that aspects of a hearing in public procurement proceedings be heard otherwise than in public. 

Key takeaways

1. The Court will approach any application for a hearing otherwise than in public with a high degree of scepticism in light of the constitutional imperative that justice is administered in public. 

2. The Court will seek to ensure that there are no lesser alternative measures available to the Court to protect the confidential information at issue before making an order excluding the public from the hearing. 

3. Parties in public procurement proceedings should seek to address any confidentiality issues as soon as they arise, and well in advance of any substantive hearing.

Background

The underlying proceedings are judicial review proceedings taken by an unsuccessful tenderer (the Applicant) in relation to the award of a public procurement contract by a contracting authority (the Respondent). One of the grounds on which the Applicant challenged the award was the manner in which the Respondent assessed the successful tenderer and Notice Party’s (the Successful Tenderer) bid, in circumstances where the bid had been identified by the Respondent as an abnormally low tender. In order to pursue that claim, the Applicant obtained discovery orders requiring the Respondent to make discovery of certain documents, including parts of the Successful Tenderer’s confidential tender relating to pricing. 

The parties recognised the confidential nature of that information, and agreed to the establishment of a Confidentiality Ring Protocol (the Ring) whereby the information would be confined to members of a “confidentiality club” (the Club).

From the date the confidential discovery was made pursuant to the terms of the Ring, the parties exchanged open and confidential streams of affidavits. Only members of the Club could access the confidential affidavits, which related to the confidential discovery made, including pricing. This meant that the Applicant and Successful Tenderer themselves did not have access to the full suite of evidence exchanged (although their legal teams did have access). This prompted the High Court to remark that it was “extraordinary, perhaps unprecedented” that the Proceedings were being moved on the basis of some evidence and arguments which only the Club was aware of. 

In these circumstances, in advance of the substantive hearing, the Court directed that the successful tenderer bring a formal motion for a hearing otherwise than in public pursuant to the Court’s inherent jurisdiction. That application was supported by the Respondent and the Applicant.

The applicable test

The Court’s inherent jurisdiction to make such an order, even in the absence of an express statutory provision, was confirmed by the Supreme Court in Gilchrist [2017] IESC 18. In Gilchrist, O’Donnell J (as he then was) considered the principles to be considered to justify a court exercising this inherent jurisdiction:

1. The interests involved must be very clear, and the circumstances pressing.

2. That justice cannot be done unless a hearing is conducted other than in public.

3. Any departure from the ordinary rule that justice is administered in public must be no more than is required to protect the countervailing interest. The Court will consider if there are any lesser steps available where a departure from the ordinary rule is warranted, and if so, the remedy will be confined by the Court accordingly. 

The decision

Ultimately, the Court was satisfied that the particular circumstances of the case justified the exercise of its inherent jurisdiction to make an order to exclude the public from hearing some aspects of the Proceedings in order to protect the Successful Tenderer’s confidential information.

In making the determination, the following factors were considered by the Court:

1. The interests involved must be very clear – The information in issue (particularly the tender pricing information) was inherently confidential, as confirmed by the CJEU. The tenderers’ interest in retaining this confidentiality was a substantive right which would clearly be impacted by a public hearing of procurement proceedings.

2. The circumstances must be pressing and compelling – The Applicant and Successful Tenderer had provided confidential documents to the Contracting Authority in confidence as part of the public procurement process. The Court noted:

   a. It is an essential feature of public procurement that this confidentiality is maintained. This process would be undermined where confidential information could be readily made available to a competitor simply as a consequence of that competitor challenging an award.
   
   b. In requiring discovery of the confidential information, there is an implication that the discovered documents can be deployed at trial and referred to in open court. However, the conditions which attached to this discovery order (i.e. requiring disclosure only within the terms of the Ring) implied that the confidentiality of the material discovered would be maintained to the greatest extent possible. 

3. The countervailing public interest in proceedings being heard fully in public – While there is a public interest for all proceedings to be heard in public, the Court accepted that there was no additional imperative for that requirement in the Proceedings. In the circumstances, the public policy in affording protection to the confidential information justified the exclusion of the public from the public procurement process.

4. Whether any lesser measures are available –Where the claims advanced in the Proceedings were so closely concerned with the confidential information (i.e. the Applicant’s abnormally low claim), it was determined that no lesser measure was available to the Court than these claims being heard in private. This was determined on the basis that a hearing in public would, in effect, render otiose the Club put in place and endorsed by the High Court and the Court of Appeal, not to mention the efforts which the parties had gone to, to respect the limits imposed by the Ring.

5. However, in respect of the reminder of the claims being advanced, which related largely to the interpretation of and compliance with the tender documents, the Court made the order on a pro tem basis only (i.e. for the time being) and required the parties to address the Court on the requirement to exclude the public from the hearing in relation to any particular argument being advanced as and when necessary during the hearing. In practical terms, no members of the public or press sought to attend the hearing, and the Applicant and Successful Tenderers’ representatives voluntarily absented themselves from the court for any confidential portions of the evidence so the Court did not have to deal with this issue any further during the hearing. 

6. Given the importance of legal proceedings being heard in public, the Court noted that any such issues should be addressed by the parties at the earliest stage possible.

For more information in relation to this topic, please contact Hannah Shaw, Anna-Marie Curran, Amie Creaton, Sinéad Hayes or your usual contact in the ALG Disputes or Procurement teams.

Date published: 16 June 2026