Healthcare at Home Ltd v. The Common Services Agency [2011] CSOH 22

In this action, the pursuer sought the setting aside of a decision of the defender to award a Framework Agreement to BUPA Home Healthcare Ltd. The Framework Agreement was for an extendable period of two years and was for a compounding, dispensing and delivery service of Trastuzumab, with a nursing administration and support service, to the homes of patients or other agreed designated delivery points within Scotland.

The court had previously granted a motion for recovery of documents pertaining to the tender process however BUPA intervened to oppose these documents being given to the pursuers, due to their confidential nature. Counsel for BUPA submitted that the documents would provide material assistance to its competitors (including the pursuer), and that sight of the material was not necessary for the proper resolution of the issues in the litigation. Counsel for the pursuer conversely submitted that when handling confidential documents, the court was required to carry out a balancing exercise, weighing the confidentiality and commercial importance of such documents against the degree to which the proper disposal of the litigation might be hampered by non-disclosure.

Having heard submissions, the Lord Ordinary noted that while there was a clear public interest in maintaining commercial confidentiality, there was also an important public interest in the proper administration of justice. Noting that BUPA's claim to confidentiality was not particularly strong, the court noted that the documents contained no sensitive technical or scientific information, and fell only towards the lower end of sensitivity. While the Lord Ordinary noted that several of the documents contained a docquet stating that the contents of the document were strictly confidential and were not to be divulged to any third party without the prior written permission of BUPA, the court considered that these notices fell short of proper “written notice” in terms of the Invitation to Tender. Carrying out the balancing exercise required, the Lord Ordinary noted that the commercial sensitivity of the documents was so low as to yield to the disclosure of the information.