Lime Technology Limited v Liverpool City Council [2025] EWHC 1654 (TCC)
The High Court (Mr Roger Ter Haar KC, sitting as a Deputy High Court Judge) has handed down an important judgment on the use of ‘external eyes only’ (EEO) confidentiality rings in public procurement disputes.
The proceedings concern a challenge to a procurement by Liverpool City Council (LCC) of a new concession contract for on-street e-bike and e-scooter rental services. The grounds of claim include (relevantly) an allegation that the preferred bidder (Bolt) had proposed abnormally or unrealistically high revenues, and therefore payments to LCC, and should, on a lawful approach by LCC, have been excluded from the procurement.
As is common in procurement disputes, Lime sought early specific disclosure. Following Lime issuing its application, LCC accepted that the contents of Bolt’s pricing submission, and related communications, should be disclosed, subject to the establishment of a confidentiality ring order (CRO).
LCC asserted that in the first instance, the CRO should be limited to an EEO arrangement, i.e. no client representative of Lime should be admitted to the CRO or authorised to review Bolt’s pricing information. LCC argued that the pricing information was highly commercially sensitive and that any arguments as to it being necessary for Lime itself to review that information should proceed on an informed basis, after Lime’s lawyers had considered the information. Lime opposed this restriction, contending that it was essential that an employee of Lime with appropriate industry knowledge and expertise was able to see the pricing documents and give instructions to Lime’s legal team on the conduct of the litigation.
Following consideration of authority relevant to CROs, and EEO arrangements in particular, the Court held that it was necessary and appropriate that a Lime client representative be added to the CRO immediately.
This was so notwithstanding that the proceedings were at a relatively early stage. The Court emphasised that: (i) public procurement disputes often give rise to the need for claimants to make important strategic decisions on an urgent basis in the early stages of litigation, and (ii) Lime’s client representative had offered significant undertakings to mitigate the risk of prejudice to the preferred bidder as a result of disclosure into the CRO.
In that context, Lime’s legitimate interests in having a client representative within the ring outweighed the undoubted interest of the preferred bidder in maintaining the confidentiality of its pricing submission.
The judgment provides important guidance regarding how the Court is likely to deal with requests by contracting authorities or preferred bidders for EEO CROs in public procurement challenges.
A copy of the judgment can be found here.
Joseph Barrett KC of 11KBW appeared successfully for the Claimant, Lime, instructed by Kate Gough and Elizabeth Forster of Freshfields LLP.
Jason Coppel KC and Cecilia Ivimy KC (both of 11KBW) appeared for the Defendant, LCC.
