Alstom Transport

Wednesday November 10th, 2010
BAILII Citation Number: [2010] EWHC B32 (Ch)
    Claim No: HC10C03303

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

    Royal Courts of Justice
Strand
London
WC2A 2LL
    10 November 2010

B e f o r e :

MR JUSTICE VOS
____________________

Between:

  ALSTOM TRANSPORT Claimant
  - and –  
  EUROSTAR INTERNATIONAL LIMITED Defendant

____________________

(Transcript of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Ms Sarah Hannaford QC and Jessica Stephens (instructed by Hogan Lovell International LLP) for Alstom Transport
Mr Michael Bowsher QC and Ewan West (instructed by Burgess Salmon Solicitors) for Eurostar and Siemens
Mr John Howell QC and Mr Rob Williams (instructed by Freshfields Bruckhaus Deringer LLP) for Siemens

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    MR JUSTICE VOS:

  1. In this action, ALSTOM Transport (“ALSTOM”) claim damages against Eurostar International Limited (“Eurostar”) in respect of the conduct of the tendering process whereby it awarded the contract for the design, supply and maintenance of ten high-speed train sets with an option for a further 13 train sets to Siemens PLC (“Siemens”).
  2. After a four-day hearing, I gave judgment orally on Friday, 29 October 2010 refusing ALSTOM an injunction to restrain Eurostar from entering into a contract with Siemens. I approved a final version of that judgment on 3 November 2010 (the “Judgment”).
  3. The factual background to this litigation is set out in detail in paragraphs 12 to 60 inclusive of the Judgment, and I shall not repeat it here. In addition, the relevant regulations and the law applicable to them is also set out in the Judgment, and I do not intend to repeat it. I shall use the same abbreviations in this judgment as are defined in the Judgment.
  4. On 1 November 2010, ALSTOM applied for the disclosure of:- (1) “All documents identifying the detailed scores produced by each evaluator (including but not limited to the scores of all first and second reviewers, the project group and the “group bid” score) for [ALSTOM's] bid”; and(2) “all completed evaluation templates (referred to in the evaluation methodology) in relation to [ALSTOM's] bid”.
  5. On 5 November 2010, Eurostar applied for disclosure of an unredacted copy of ALSTOM’s internal audit and certain other documents concerning ALSTOM’s bid, to which I shall refer in due course, and for detailed trial directions.
  6. These two applications are before me today, though Ms Sarah Hannaford QC, counsel for ALSTOM, has objected to my dealing with Eurostar’s application for disclosure on the grounds that she only saw it at almost 6.30 pm last night and has not had time to take proper instructions upon it. For reasons that will appear, I do intend to deal with Eurostar’s disclosure application in this judgment. I shall also give directions for the future conduct of this action after I have dealt with the two disclosure applications and the parties have had an opportunity to make further submissions arising from my decision.
  7. Despite indications at the injunction hearings that the Agreement between Eurostar and Siemens would be signed immediately I had delivered the Judgment, if so allowed, in fact the Agreement has still not been completed. Mr Michael Bowsher QC, counsel for Eurostar, told me on instructions that this was because there have been discussions at the highest level between the UK and French governments, and those governments had jointly asked Eurostar to defer completion of the Agreement for a further short period, to which request Eurostar has agreed.
  8. ALSTOM has indicated that it does not intend to seek permission from the Court of Appeal, my having refused permission, to appeal the Judgment.
  9. I shall deal first with ALSTOM’s application for disclosure that I have recited above. ALSTOM’s application for disclosurePrevious findings
  10. The disclosure that ALSTOM seeks is most closely related to the second of ALSTOM’s main allegations, namely, its contentions concerning Eurostar’s failure to disclose its criteria, weightings and evaluation methodology that I summarised in paragraph 103 of the judgment as follows: (1) Eurostar was evaluating the financial aspects of the bids on the basis of NPV without having disclosed that criterion to bidders.(2) Eurostar used a banding scoring system, which unfairly attributed four points for satisfying all the financial criteria, and the additional fifth point (amounting to nearly 10 per cent of the overall score) to the lowest bidder, even though that bidder might have only been the lowest by a tiny margin. A rational system should, argued ALSTOM, have awarded points for the lowest figure proportionate to the bids.

    (3) Eurostar’s five-point banding system was in conflict with the 100 point marking system indicated in both the ITN and the BAFO documents, and was unfair, unequal, non-transparent, counter-intuitive and inappropriate for the purpose of selecting the most economically advantageous bid from Eurostar’s point of view.

    (4) Eurostar’s evaluation methodology revealed that bidders were obtaining only three out of five points for satisfying the criteria, and the remaining points for higher levels of confidence in the ability of the bidder to deliver.

    (5) Eurostar’s technical evaluation system was flawed because ALSTOM was marked down for what has been described, for confidentiality reasons, as “Issue A” and “Issue B”, where issue A was a mandatory requirement and adversely impacted issue B, which was not. What is said is that if these issues were so important, ALSTOM should have been told that marks would be awarded for them, rather than the very many other specified matters.

  11. I decided that there was a serious case to be tried on points 1, 2 and 3 above, and that it was impossible to evaluate the fifth point on the information presently available.
  12. In fact, however, the documents that are sought relate to the scoring of ALSTOM’s bid, which is obviously potentially relevant to points 4 and 5, above but not so obviously relevant to the other points. Requests for the disclosure
  13. ALSTOM has repeatedly requested the disclosure of the details of the scoring that Eurostar applied, and of the application of Eurostar’s evaluation methodology. I need not refer to the correspondence, but suffice it to say that such requests were made at various points after the de-briefing on 11 October 2010, including in ALSTOM’s regulation 45 letter of that date, and repeated in letters dated 12, 14, 18 and 22 October 2010.
  14. Burges Salmon, solicitors for Eurostar, have repeatedly rejected the request, saying that the information was not relevant to any properly pleaded breach, and that ALSTOM was not entitled to conduct an audit of the procurement procedure.
  15. In the Judgment, I described Eurostar’s failure voluntarily to disclose the evaluation template showing exactly how it reached its procurement decision as an “unfortunate failure”, and Mr Bowsher indicated in argument that the disclosure of this kind of material was likely to lead to an amendment of ALSTOM’s pleaded case.Eurostar’s objections to disclosure
  16. Eurostar objects to the requested disclosure on the following main grounds: (1) That the material requested is not relevant to, and does not relate to, both ALSTOM’s pleaded case (paragraph 23(d) of the particulars of claim) and to the case notified to Eurostar in its regulation 45 notice, and is therefore not disclosable.(2) That the form of the request is too broad and ill-defined, and would necessitate a trawl through all Eurostar’s hard copy and electronic records to comply with it.

    (3) That to understand the procurement process, ALSTOM would need even more documents than it has sought.

    (4) That the request is premature, and that, now the action is purely for damages, disclosure should be given at the proper time after the conclusion of pleadings.

    (5) That the application is not urgent now that ALSTOM has indicated that it will not appeal the Judgment and is brought as a tactical manoeuvre.

    I shall deal in due course with each of these grounds in turn.

    The law concerning disclosure

  17. Part 31.6 of the CPR provides for standard disclosure as follows:

    “Standard disclosure requires a party to disclose only –

    (a) the documents on which he relies; and

    (b) the documents which –

    (i) adversely affect his own case;

    (ii) adversely affect another party’s case; or

    (iii) support another party’s case; and

    (c) the documents which he is required to disclose by a relevant practice direction”.

  18. Specific disclosure is provided for in part 31.12 CPR as follows:

    “(1) The court may make an order for specific disclosure or specific inspection.

    (2) An order for specific disclosure is an order that a party must do one or more of the following things –

    (a) disclose documents or classes of documents specified in the order;

    (b) carry out a search to the extent stated in the order;

    (c) disclose any documents located as a result of that search …”.

  19. The notes in the CPR tes at paragraph 31.12.2 at page 850 say this:

    “It [the court] may make an order at any time, regardless of whether standard disclosure has already occurred; and it may make orders for specific disclosure against a claimant before the service of the defence where it would assist the defendant to plead a full defence rather than the initial bare denial …

    The court will need to satisfy itself as to the relevance of the documents sought, and that they are or had been in the parties’ control, or at least that there is a prima facie case that these requirements will be met. The relevance of documents is analysed by reference to the pleadings, and the factual issues in dispute on the pleadings: Harrods Limited v The Times Newspaper Limited [2006] EWCA Civ 294 Where a claim is likely to turn on particular documents there is a stronger case for an order to be made: Chantrey Vellacott v Convergence Group plc February 6, 2006, Ch.D Rimer J …”.

  20. CPR part 31.16 deals with pre-action disclosure as follows:

    “(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

    (2) The application must be supported by evidence.

    (3) The court may make an order under this rule only where –

    (a) the respondent is likely to be a party to subsequent proceedings;

    (b) the applicant is also likely to be a party to those proceedings;

    (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

    (d) disclosure before proceedings have started is desirable in order to –

    (i) dispose fairly of the anticipated proceedings;

    (ii) assist the dispute to be resolved without proceedings; or

    (iii) save costs …”

  21. In the case of Arsenal Football Club plc v Elite Sports Distribution Limited [2002] EWHC 3057, Arsenal sued Elite for interfering with Premier League football clubs’ economic interests by publishing calendars containing photos of Premier League players taken or used in breach of licensing arrangements operated by those clubs. It was also claimed that Elite had knowingly breached procured a breach of contract between the clubs and the photographers or agencies from whom they obtained the photos. Unfortunately, the claimants did not know how the defendants had obtained the photos that they were using in their competing calendars. The applications before the court were to strike out the claims against Elite as being too speculative and uncertain to succeed and for an order for disclosure or an affidavit stating how Elite had come by the photos that it had published.
  22. The matter came before me, then sitting as a deputy judge, and I declined to strike out the claim, relying partly on the provisions of the CPR, as making it pointless and contrary to the overriding objective to strike out the claim, and then make an order for pre-action disclosure under part 31.16. Rather, I decided that it made sense to consider the application for pre-action disclosure at the same time, and to order it, if appropriate, even though the action had already been commenced. Relevantly, I said this at paragraphs 35 to 37 of my judgment:

    “35. There is a further reason why I am not inclined to strike out the statement of claim at this stage on the grounds relied on by Mr Purvis. It seems to me that the position under the civil procedure rules is somewhat different than what it was under the previous Rules of the Supreme Court. This is because, under the Civil Procedure Rules, part 31.16 enables the court to order disclosure in a case like the present to enable a potential claimant to ascertain whether he has a pleadable claim or not. Mr Purvis says, of course, the claimants do not apply for pre-action disclosure under part 31.16 so I should not take this into account but it seems to me that it is a relevant factor. Even if, which is not the case here, in my judgment, the case was not pleadable and was too speculative, as in the cases of A to Z couriers and Upjohn, the courts could and would consider an application for pre-action disclosure. In my judgment, there is no reason why, in order to save costs in this case, disclosure should not be ordered now to see whether the claim is doomed to fail as the defendants implicitly suggest. It would be pointless and contrary to the overriding objective to strike the case out and force the claimant to seek pre-action disclosure before starting the case again.

    36. The defendants have stoically refused to cooperate with the claimants to give my information to make any disclosure. They say that it’s contrary to their commercial interests to do so but it seems to me, if they have an absolute defence to the claim and the allegations made against them were wrong, it would be in their interests and not contrary to their commercial interests to produce the disclosure that is sought to demonstrate to the claimants that they had acquired the information lawfully.

    37. In those circumstances, it seems to me that the new provisions of the civil procedure rules for pre-action disclosure need to be taken into account when considering this strike-out application. In the case of Black v Sumitomo Corporation [2002] 1 WLR 1562 the Court of Appeal considered part 31.16 and its effect. The circumstances of that case were completely different from those in this case and I need only cite paragraph 68 of Lord Justice Rix’s judgment where he said as follows:

    “What, however, these authorities on the unamended section of my judgment reveal, and usefully so, is as follows: first, that at any rate in its origin the power to grant pre-trial disclosure was not intended to assist only those who could already plead a cause of action to improve their pleadings, but also those who needed disclosure as a vital step in deciding whether to litigate at all or as a vital ingredient in the pleading of their case. Secondly, however, that, as what I would call as a matter of discretion, it was highly relevant in those cases that the injury was clear and called for examination of the documents in question. The disclosure requested was narrowly focused and bore directly on the injury complained of and responsibility for it in the documents would be decisive on the conduct or even the existence of the litigation. Thirdly, that on the question of discretion it was material that a prospective claimant in need of legal aid might be unable even to commence proceedings without the help of pre-action disclosure”.

    First ground: that the material requested is not relevant to and does not relate to both ALSTOM’s pleaded case and to the case notified to Eurostar in its regulation 45 notice, and is therefore not disclosable

  23. On 11 October 2010, ALSTOM’s solicitors wrote to Eurostar under regulation 45 and said this in relation to “criteria, weightings and scoring mechanism”:

    “As you are aware, the regulations together with the principles of transparency and equal treatment require disclosure of criteria, sub-criteria and their weightings, together with scoring matrices and methodologies prior to submission of tenders … it became apparent at the debrief meeting that Eurostar was in possession of crucial information relating to these matters which had not been disclosed to the tenderers. We refer, for example, to the guidance which you stated was provided to evaluators and to Eurostar’s business model and NPV model which were used to evaluate the financial bids. In addition, you were unable to explain at the debrief meetings the score methodology used to evaluate price or to explain the basis on which our client was awarded a score of 4 and Siemens awarded a score of 5. You were similarly unable to explain the scoring methodology for the other elements of the tender or what our client was required to do to obtain a score of 3, 4 or 5 for any given element.

    Disclosure of this information could and would have affected the way in which bids were prepared and ought to have been disclosed. On the basis of our current understanding of the position, this non-disclosure amounts to a clear breach of the regulations and the above principles. Furthermore, as set out in your letter of 5 October 2010, you changed the scoring methodology set out in the ITN and BAFO document so that, in fact, each element scored was marked out of 5, using whole numbers only, rather than being marked out of the identified marks available for each element, e.g. 50.

    This had the effect of distorting the scores and the potential to exaggerate the difference between the bidders. Again, disclosure of this information could and would have affected the way in which bids were prepared and ought to have been disclosed. We reserve our client’s right to add to or amend these contentions in the light of further information sought. See below.

  24. The particulars of claim filed by ALSTOM on 19 October 2010, little more than a week after the de-briefing, pleaded allegations in relation to criteria weightings and evaluation methodology at paragraphs 23 to 25. I do not intend to set out in their entirety those allegations, but suffice it to say that there is a complaint in paragraphs 23 and 24 about the disparity between the scoring mechanism out of 5 that appeared from the recently disclosed evaluation methodology document and the scoring method out of 100, which had been indicated in the ITN and the BAFO. In addition, at paragraph 23(d) the following is pleaded:

    “It is not clear whether particular individual elements of the defendant’s requirements attracted higher undisclosed weightings than other elements. For example, each sub-criterion included a number of factors and involved consideration of large parts of the bids. It appears from the de-briefing meeting that the defendant may have placed greater emphasis and/or weighting on particular elements of the requirements. Furthermore, it is not clear whether the defendant scored individual responses to sections of the BAFO prior to producing an overall mark for each sub-criterion. The claimant has sought further information in relation to the way in which the marking was carried out and reserves its right to add to the allegations made above on receipt of full and proper information”.

  25. There were then further allegations concerning a lack of transparency and equal treatment in paragraphs 24 and 25, to which I need not refer in detail.
  26. To understand the argument that Mr Bowsher has advanced, it is necessary to consider the documents that ALSTOM seeks. ALSTOM seeks, in essence, the completed evaluation templates and other documents identifying the detailed scores produced by evaluators in respect of ALSTOM’s bid. The evaluation templates were described in the BAFO evaluation methodology as follows:

    “To guide further the reviewers in their analysis, templates are provided at appendix 3 and must be completed in detail. The templates require the reviewer(s) to:

    - Read parts of the ITN response, together with the relevant parts of the BAFO submissions.

    - Advise which questions are relevant for the evaluation of their allocated criteria or sub-criteria.

    - Give a clear indication of what information/bidder’s answer is important to which criteria or sub-criteria.

    - Provide an analysis of the information/bidder’s answer and specifically how the information or answers contained in the BAFO submission varies or amends the information or answer provided in the ITN response.

    The completed evaluation templates will form the evaluation record and could be used at a later stage to debrief bidders; the analysis must therefore be precise and concise so as to provide strong rationale to the award decision. Reviewers must be objective in their evaluation of the bids. Reviewers must also recognise that in the event of a formal challenge by a bidder to the process, such evaluation may be subject to scrutiny by third parties and reviewers challenged as to the rationale behind the allocated scores”.

  27. It can be seen from that part of the evaluation methodology document that there must exist, as indeed Mr Bowsher has now accepted there does exist, completed templates in concise form explaining what scores were awarded to each bidder and the reasons for those scores.
  28. As I have said, these templates are obviously relevant to points 4 and 5 argued on the injunction; namely, the questions of the degree to which confidence in the various aspects of the bid was taken into account in scoring the bid, and the question of A-ness and B-ness to which I have already referred.
  29. It is true that these points have not been intimated directly in the points of claim, nor were they contained in the regulation 45 notice, but they were argued in both cases on the injunction hearing and I did not understand Mr Bowsher to say that I should ignore them today. Since I have already taken them into account in considering the claimant’s case in the injunction hearing, it would be a nonsense if I were now to ignore them in considering the ongoing litigation.
  30. Indeed, Mr Bowsher accepted in oral argument that the documents sought would be disclosable in the action, even as presently pleaded, because they are relevant to his defences: (1) That ALSTOM’s bid was properly scored and was not as good as Siemens’ bid; and(2) That ALSTOM has suffered no loss as it would have lost the bid anyway, even if it had been scored as it says it should have been.
  31. In fact, I accept that there is, as I have said, no satisfactory pleading at the moment complaining about the way ALSTOM’s bid was scored, but that does not seem to me to matter in the face of Mr Bowsher’s admissions that these documents are in any way disclosable in the action, and what was argued at the injunction hearing without complaint.
  32. Moreover, even if there were no pleading at all, because ALSTOM did not have the appropriate information, it seems to me that I could still order disclosure (on the basis of relevance, but without at the moment dealing with the other matters that must be taken into account) under part 31.16, as I did in the Arsenal Football Club case. Contrary to Mr Howell’s submissions, that case is, in my judgment, directly in point here. It would be equally absurd here to force ALSTOM to make a pre-action disclosure application and then bring new proceedings in respect of any further complaint that was discovered as a result of that pre-trial disclosure process.
  33. Mr Bowsher also argues that in the case of Luck v London Borough of Tower Hamlets [2003] EWCA Civ 52, the Court of Appeal decided that no claims could be brought if they had not been intimated timeously under regulation 48. I shall not read out the relevant parts of that judgment, but his submission is supported by paragraphs 27 to 32 of the Court of Appeal’s decision.
  34. This brings into question the limitation period for starting proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules. Here, the three-month period by way of limitation under regulation 45(5)(b) and the decision in Uniplex v NHS Business Services Authority, which I referred to in paragraph 89 of my judgment, only runs from the date on which the claimant knew or ought to have known of that infringement.
  35. It seems to me that the point made by Mr Bowsher about regulation 45 is not, therefore, apt here because ALSTOM had no knowledge of the way in which the bid was scored at all until the de-briefing meeting on 11 October 2010 at the earliest. In those circumstances, the three-month period running from that date has not expired yet and it may well be that the three-month period will not even have started running in relation to any matters that appear from the evaluation templates which have yet to be disclosed.
  36. For all these reasons, therefore, it seems to me that, as to Mr Bowsher’s first point, the documents that are sought by ALSTOM are, prima facie relevant to the pleaded case, as Mr Bowsher accepts. They are not excluded because of an absence of regulation 45 notice at this stage. Although they do not relate to pleaded matters of claim by ALSTOM, they do relate to matters that are crucial to Eurostar’s defence, and to matters that were argued on the injunction hearing and in respect of which ALSTOM intends to amend its pleading as soon as it has time to do so.
  37. Even if I were wrong about that, the matters are sufficiently relevant to warrant disclosure under rule 31.16, in the way that happened in Arsenal Football Club, if the other factors are satisfied.
  38. I should say also, in regard to relevance, that I rely also on the matters dealt with below under Eurostar’s fourth ground as making the documents sought relevant to be disclosed at this stage.
  39. Of course I must now turn to deal with Mr Bowsher’s other arguments, which may outweigh the relevance of the documents to which I have referred. Second ground: That the form of the request is too broad and ill-defined and would necessitate a trawl through all Eurostar’s hard copy and electronic records to comply with it
  40. On 1 November 2010, as I have said, ALSTOM applied for disclosure of:

    “All documents identifying the detailed scores produced by each evaluator (including but not limited to the scores of all first and second reviewers, the project group and the ‘group bid’ score) for [ALSTOM's] bid”, and for “all completed evaluation templates (referred to in the evaluation methodology) in relation to [ALSTOM's] bid.”

  41. Eurostar complains that this will involve a massive trawl through the entirety of its electronic and paper documentation similar to the trawl that will be necessary to give full disclosure in this litigation. It is suggested that it would be burdensome and wasteful of costs for Eurostar to be required to make this trawl at this stage, rather than waiting a matter of a few months at the most before making that trawl and disclosing the documents which Mr Bowsher accepts are in fact disclosable.
  42. It seems to me that this argument cannot succeed in itself. It is true that the formulation that ALSTOM has adopted in its application is broad. Indeed, it seems to me that it is too broad to be allowed on a disclosure application at this stage of the litigation, but that does not mean that there is no interim solution which could be adopted so as to give the disclosure that is necessary at this stage, without requiring Eurostar to undertake the disclosure exercise twice.
  43. Subject to argument, it seems to me that the following would accord with what Mr Bowsher says exists in his client’s possession and can be obtained from their records without a massive trawl through their documents and electronic records. The formulation I regard as appropriate is as follows:

    1. The blank template attached to the evaluation methodology documents.

    2. The overall summary of the scoring outcomes.

    3. Any templates recording scores given by first reviewers.

    4. Any templates recording scores given by second reviewers that Eurostar is able to find.

  44. I have had regard in that formulation to the fact that Mr Bowsher told me on instructions that, at the moment, the documents that I have numbered 2 and 3 above have been located, but that the documents that I have described at 4 above have not yet been located but are being looked for. Third ground: That to understand the procurement process, ALSTOM would need even more documents than it has sought
  45. This argument is probably of less relevance if the disclosure order is limited in the way that I have suggested in dealing with Mr Bowsher’s second ground. Of course it is possible that, after disclosure has been given of the few documents that I have mentioned under the second ground, ALSTOM would discover that further documents were relevant to its intended case or indeed to a case that it intends to plead as a result of seeing those documents, but I cannot legislate for the future. It may be hoped, however, that by limiting the disclosure in the way that I have suggested under the second ground, this problem will be avoided.
  46. In any event, full disclosure is going to be ordered in the directions that I shall give after this judgment, and, therefore, future problems will, in all probability, be avoided by that course. Fourth ground: That the request is premature, and that, now is action is purely for damages, disclosure should be given at the proper time after the conclusion of the pleadings
  47. This, really, was Mr Bowsher’s main point. He said that there was no reason whatever for disclosure even of the limited kind that I have suggested under ground 2 to be ordered now because disclosure would, in any event, be ordered fairly soon, and the normal course of civil litigation did not require early disclosure for any specific reason here.
  48. Mr Bowsher put in evidence certain newspaper articles suggesting that ALSTOM had publicly made clear, since the rejection of its injunction application, that its objective was not just to obtain damages for the breaches of the regulations in relation to the procurement process, but was in fact to stop the bid. Two newspaper articles in particular, published in various organs of the French press, recorded as follows:”Mr Kron [ALSTOM's chairman] indicated to the press when presenting the group’s half yearly results: ‘We are going to initiate a full trial both before the English courts, as the interim procedure did not halt our petition, it continues, and before the European courts’. He added: ‘My goal is simple, to stop the tendering process’”.
  49. That article was published on 4 November 2010. Another article on 5 November 2010, in La Tribune, again in the French press, was entitled “Patrick Kron is not giving up the fight against Eurostar and Siemens”, and included the following:

    “‘Eurostar’s invitation to tender is besmirched with serious legal anomalies that could be harmful to ALSTOM’, Patrick Kron stated on Thursday. ‘we are fighting to prevail upon our rights. I have a simple objective: for this invitation to bid to be stopped,’ he wrapped out. The recent selection by Eurostar, a subsidiary 55 per cent owned by SNCF, of its great rival Siemens for a 600 million euro order for 10 high speed trains was unacceptable”.

  50. These newspaper articles led me to ask Ms Hannaford whether there was any ulterior motive to her application. Her answer was that there was no ulterior motive in bringing the application for disclosure. First, she said that ALSTOM served this application on Saturday, 30 October 2010, a day after I had rejected its application for disclosure, and ALSTOM was told that at that time that the Agreement would be signed on Tuesday, 2 November 2010. Secondly, she said that ALSTOM only discovered last night that the Agreement had not been signed so there could not possibly have been any ulterior motive in making the application on Saturday, 30 October 2010.
  51. Those answers did not, of course, completely answer the question that I had asked her. Ms Hannaford was careful not to say that she would not seek to use the materials to bring a renewed application for an injunction but, as it seems to me, ALSTOM’s motive in making this application is nothing to the point. The question is whether or not it is appropriate, as a matter of discretion, to order disclosure at this stage for specific reasons, and the specific reasons that Ms Hannaford advances for needing the disclosure, the limited disclosure, at this stage is two fold: (1) First, she says she wishes to plead her case properly as to the defects in the scoring process intimated both in the injunction application and before me;(2) Secondly, she says that she does not wish to be faced with limitation problems that may arise if disclosure is given in the ordinary course more than three months from 11 October 2010 and she finds that some argument is raised that she could in some respect have worked out the defect in the procurement process after the de-briefing on 11 October.
  52. It seems to me that there is much force in Ms Hannaford’s submissions to this effect. If Eurostar is required to disclose the templates that I have mentioned indicating their scoring process at this early stage, it would have the great benefit that it will enable ALSTOM at the earliest possible stage in the action to plead its case as fully as it possibly can, thereby giving Eurostar and Siemens a clear indication of where this case is going. Indeed it seems to me that this will be to the advantage of Eurostar, because if, as they have always said, the procurement process was indeed transparent, fair and non-discriminatory, that will be demonstrated by the disclosure of the core documents in the action which are the scoring templates which Ms Hannaford now seeks.
  53. Mr Bowsher finally in this connection says that ALSTOM should have applied for these documents before they sought the injunction. Ms Hannaford explained to me the massively brief timetable which ALSTOM was forced to follow in making their application for the injunction which was heard before me and I’m entirely satisfied that it would have been difficult, although not impossible, for that application to have been made earlier, but even if it could and even if it should have been made earlier, that again is no reason to reject it now, if it is appropriate as a matter of discretion to order the disclosure in order to assist in the proper management of this litigation. Which I believe it is. Fifth ground: that the application is not urgent now that ALSTOM has indicated that it will not appeal the judgment and is brought as a tactical manoeuvre
  54. This ground is effectively dealt with under the fourth ground above. It seems to me, however, that if, as I have said, the documents are properly required in order to enable ALSTOM to know what happened to its bid and how it was dealt with in the procurement process, then the fact that it could be left over to ordinary disclosure at a later stage is not the most relevant feature of the argument. In my judgment, it is appropriate, for the reasons I have given, for this disclosure in the limited form set out above under point 2 to be given now so, as I have said, that ALSTOM can properly plead its case and Eurostar and Siemens can know that case at the earliest possible stage in the litigation.
  55. It is not, of course, impossible that further amendments will be necessary after full disclosure has been given, but that is often the case in litigation and it is certainly not unheard of for particulars of claim to need to be amended more than once in a case of this weight.
  56. In these circumstances, I will order disclosure of the documents that I have mentioned, subject to hearing counsel on the detail of that order.
  57. Before leaving ALSTOM’s application for disclosure, I should mention a debate that was held in the course of argument about the requirements for confidentiality. I fully accept that there may, in the documents that I will be ordering disclosure of, be matters which are confidential to Eurostar. I would not expect the entirety of the documents that are ordered to be disclosed to be confidential. In many cases, the documents will simply relate to ALSTOM’s bid and certainly so far as ALSTOM is concerned, it should be possible for ALSTOM’s officers and staff to be able to look freely at those documents, but there may well be aspects of the evaluation process which deal with secret financial information concerning Eurostar’s business plans. Those documents would obviously be confidential and should not be disclosed to ALSTOM’s executives. What has been, I say loosely, agreed between counsel is that there should be some kind of confidentiality ring put in place whereby lawyers only can see the documents in the first instance, leaving applications to be made to the court if release from that confidentiality ring cannot be agreed where necessary. I would not expect, however, the confidentiality ring to apply more widely than absolutely necessary to Eurostar’s confidence, but there will need to be further provisions that prevent Siemens and ALSTOM seeing details of each other’s bids.
  58. What I propose to do in the first instance is to allow counsel seven days in which to negotiate an appropriate confidentiality regime with liberty to return to me at 9.30 one morning before usual court business for me to resolve any issues of confidentiality that cannot be resolved by agreement. Eurostar’s application for disclosure
  59. Eurostar has applied also for disclosure, but only by application dated, I think, 5 November 2010. They seek:

    1. An unredacted copy of ALSTOM’s internal audit of 17 May 2010 and the internal guidance issued to ALSTOM’s bid team which it used to assist in assessing its bid;

    2. Documents evidencing the preparation of ALSTOM’s financial bid making reports, minutes and analyses;

    3. The key documents, reports and analyses prepared or considered by ALSTOM in connection with its decision to bid on the basis of a DPS solution.

  60. Mr Bowsher argues that he needs these documents so that he can plead his defence fully on the first occasion and to avoid re-pleading it later, so that he can plead his causation defence fully and so that he can show, if appropriate, that ALSTOM never actually even wanted to obtain the contract in this case.
  61. Ms Hannaford argues strongly that she has not had time to deal with the application and submits that there are, in any event, very few redactions in the internal audit, and that Mr Bowsher has failed to address any argument to why he wants those redactions lifted.
  62. As it seems to me, the documents requested at points 2 and 3 above would require a complete trawl through ALSTOM’s documents equivalent to the kind of trawl that would be required for complete disclosure. These documents, whilst of course they will be disclosable when disclosure is given, are not essential to the pleading of Eurostar’s case. It is already fully aware of the case that it wishes to plead on causation and in complaining that ALSTOM did not really either do enough to gain the contract, or want the contract enough.
  63. Mr Bowsher’s own argument raised in answer to ALSTOM’s application is applicable here. His application for disclosure is indeed premature. It does not go to any aspect of the case, of which he is presently unaware, unlike, I should say, ALSTOM’s application, which does. It is, in this case, premature, unnecessary and, I venture to say, as I did in argument, retaliatory in nature.
  64. Mr Bowsher argued that what is sauce for the goose is sauce for the gander so he should thereby be allowed his application, but it seems to me that in this case the goose and the gander are in rather different positions. I will therefore reject his application and it will not be necessary to adjourn it and have it re-argued on another occasion, but of course Mr Bowsher will be getting those documents when disclosure is ordered.
  65. I will hear counsel on the form of disclosure order and confidentiality as regards ALSTOM’s disclosure and on the directions that are appropriate for the continuing conduct of this action.

Leave a Reply

debug