Case background
Lime Technology Limited (Lime), a provider of micromobility services in the UK, brought a procurement challenge against Liverpool City Council (LCC) in the High Court after being unsuccessful in a tender for the provision of e-scooter and e-bike services. The contract was awarded to Bolt Operations UK Limited (Bolt).
Lime alleged that LCC breached its obligations under the Concession Contracts Regulations 2016, particularly in failing to reject Bolt’s pricing submission as abnormally high. Lime sought specific disclosure of documents related to the evaluation of Bolt’s tender, including Bolt’s pricing information.
The Confidentiality Ring dispute
Central to the dispute was Lime’s application for a Confidentiality Ring Order (CRO) that would allow a Lime senior director to access Bolt’s confidential pricing information.
Bolt strongly objected, citing the risk of irreparable commercial harm. It argued that even with undertakings, disclosing sensitive pricing data to a senior executive of a direct competitor posed a significant risk of inadvertent or subconscious misuse.
LCC, while not fully supporting Bolt’s position, advocated for a staged disclosure process, initially limiting access to external legal advisers only.
Key legal arguments
Lime’s position:
Lime argued that the senior director was not involved in bid preparation and that his role in government affairs posed no competitive threat. It emphasised the need for internal expertise to assess the disclosed information and to determine whether to proceed with the claim.
Bolt’s position:
Bolt maintained that any disclosure to a Lime employee, regardless of their role, would distort competition and risk misuse of confidential data. It highlighted the difficulty of proving misuse and the lack of adequate remedies if a breach occurred.
LCC’s position:
LCC proposed a lawyer-only confidentiality ring, citing the high strategic value of the information and the feasibility of involving an external consultant instead of a Lime employee.
The Court’s decision
The Court ruled in favour of Lime, allowing the senior director to be included in the CRO, subject to strict undertakings. The judge emphasised:
- It is quite common to include a client representative in confidentiality rings, especially in procurement disputes;
- The importance of informed decision-making by the claimant at an early stage, which cannot be adequately achieved by lawyers alone; and
- The lack of a suitable alternative, such as an independent expert, and the need for Lime to rely on its own internal expertise.
The judge acknowledged Bolt’s concerns but found that the undertakings offered by Lime sufficiently mitigated the risks. The judge rejected the staged disclosure approach proposed by LCC, citing the urgency and practical needs of procurement litigation.
Conclusion
This decision reinforces the principle that confidentiality rings should, where possible, include client representatives to ensure fairness and effective litigation. While disclosure of winning bidders’ pricing information may appear to risk revealing confidential commercial information, the risk is minimal when weighted against the significant risk of inequality and the potential denial of justice to the aggrieved party.
Provided that robust safeguards and undertakings are put in place, such as clear limitations preventing misuse of the disclosed information for future competitive advantage, confidentiality ring disclosure plays a vital role in ensuring transparency, fairness and enabling effective legal scrutiny. It upholds the integrity of procurement processes and secures justice for all parties involved.
How can we help?
For further information about issues raised in this article, please contact a member of our Procurement team.
