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You are here: BAILII >> Databases >> Irish Court of Appeal >> Wordperfect Translation Services Ltd. v Minister for Public Expenditure and Reform [2019] IECA 264 (24 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA264.html
Cite as: [2019] IECA 264
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THE COURT OF APPEAL
Neutral Citation Number: [2019] IECA 264
Record Number: 2019/110
Peart J.
Whelan J.
McGovern J.
BETWEEN:
WORDPERFECT TRANSLATION SERVICES LIMITED
RESPONDENT/APPLICANT
AND
MINISTER FOR PUBLIC EXPENDITURE AND REFORM
APPELLANT/RESPONDENT
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 24TH DAY OF
OCTOBER 2019
1. This appeal is from an order for discovery of documents made by the High Court (Simons
J.) on the 14th March 2019 wherein, inter alia, the appellant (“the Minister”) was ordered
to make discovery of nine categories of documents, such discovery to be made in
accordance with a Protocol of Inspection scheduled to the said order.
2. These are public procurement proceedings by way of judicial review wherein the
applicant/respondent (“Wordperfect”), an unsuccessful tenderer, seeks to challenge the
Minister’s decision, communicated to it by the Minister’s letter dated 12th October 2018,
to award the contract for the provision of translation services to An Garda Síochána to
another party who participated in the tender competition.
3. Wordperfect submits that the categories of documents that the Minister has been ordered
to discover are necessary to enable it to fairly and properly challenge the Minister’s
decision in these judicial review proceedings on the basis of the grounds set forth in its
statement of grounds. The Minister had agreed to make limited discovery in respect of
only four of the nine categories of documents sought by Wordperfect and considers that
the discovery as ordered is impermissibly and unnecessarily broad in its scope. It is
submitted that the trial judge erred in concluding that all documents so ordered are
relevant and necessary for the fair and proper determination of the issues in the
proceedings.
4. It is convenient to set forth the nine categories of documents as ordered by the trial judge
at this point. They are as follows:
1. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (b)
– “Very Urgent Requests for Service”.
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2. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (e)
– “Interpreter Support”.
3. All documents relating to the evaluation of tenders by reference to Criterion 4.3 –
“the Quality Assurance Plan”.
4. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (b)
– “Management Structures”.
5. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (c
)—“Management Escalation Processes”.
6. The Successful Tenderer’s Tender and all documents submitted by the Successful
Tenderer in response to the SRFT and/or in response to any requests for
clarification, including any communications between the Successful Tenderer and
the respondent during the course of the Competition.
7. All documents relating to the evaluation of the Successful Tenderer’s Tender.
8. All documents relating to the evaluation of the Applicant’s Tender.
9. All documents relating to the respondent’s failure to observe a Standstill Period.
5. On this appeal the Minister has divided these nine categories into three distinct groups,
and the submissions of the parties have been made by reference to each such group.
Group 1 relates to categories 1, 2, 3, 4 and 5. Group 2 relates to categories 6, 7 and 8.
Group 3 relates to category 9.
6. The parties are in agreement that the principles which guide the Court in relation to
discovery in public procurement cases are best described in the judgment of Ryan P. in
this Court in BAM PPP PGGM Infrastructure Cooperatie UA v. National Treasury
Management Agency and Minister for Education and Skills [2015] IECA 246 (“BAM”)
where at paragraph 29 he summarised the relevant legal principles as follows:
1. The primary test is whether the documents are relevant to the issues between the
parties. Once that is established it will follow in most cases that their discovery is
necessary for the fair disposal of those issues.
2. Relevance is determined by reference to the pleadings. O. 31, r. 12 specifies
discovery of documents relating to any matter in question in the case.
3. There is nothing in the Peruvian Guano test which is intended to qualify the
principle that documents sought on discovery must be relevant, directly or
indirectly, to the matters in issue between the parties on the proceedings.
4. An application for discovery must show it is reasonable for the court to suppose
that the documents contain relevant information.
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5. An applicant is not entitled to discovery based on speculation.
6. In certain circumstances a too wide-ranging order for discovery may be an obstacle
to the fair disposal of proceedings rather than the converse.
crucial question is whether discovery is necessary for “disposing fairly of the cause
or matter.”
8. There must be some proportionality between the extent or volume of the
documents to be discovered and the degree to which the documents are likely to
advance the case of the applicant or damage the case of his or her opponent, in
addition to ensuring that no party is taken by surprise by the production of
documents at trial.
9. Discovery could become oppressive and the court should not allow it to be used as
a tactic in war between parties.
7. In addition to these principles, there can be issues of confidentiality and commercial
sensitivity which arise for special consideration in a public procurement case, and the
court will have to balance those legitimate concerns on the part of the winning tenderer
against an unsuccessful tenderer’s entitlement to challenge the decision to award the
tender to the winning tenderer, and for that purpose to obtain discovery of relevant
documents which are reasonably necessary to enable the applicant to properly and fairly
Court stated at paras. 51-53 of its judgment:
“51. It follows that, in the context of a review of a decision taken by a contracting
authority in relation to a contract award procedure, the adversarial principle does
not mean that the parties are entitled to unlimited and absolute access to all of the
information relating to the award procedure concerned which has been filed with
the body responsible for the review. On the contrary, that right of access must be
balanced against the right of other economic operators to the protection of their
confidential information and their business secrets.
52. The principle of the protection of confidential information and of business secrets
must be observed in such a way as to reconcile it with the requirements of effective
legal protection and the rights of defence of the parties to the dispute … and, in the
case of judicial review or a review by another body which is a court or tribunal
within the meaning of Article 234 EC, in such a way as to ensure that the
proceedings as a whole accord with the right to a fair trial.
53. To that end, the body responsible for the review must necessarily be able to have
at its disposal the information required in order to decide in full knowledge of the
facts, including confidential information and business secrets.”
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8. In accordance with the principles in BAM already referred to, it is first necessary to
identify from the pleadings what are the issues raised by Wordperfect in these
proceedings, and with which issue has been joined by the Minister. Clearly where facts
are admitted on the pleadings those facts need not be proved, and discovery is therefore
not necessary for that purpose, even though they may be relevant in a general sense.
Categories 1, 2, 3, 4, and 5
1. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (b)
– “Very Urgent Requests for Service”.
2. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (e)
– “Interpreter Support”.
3. All documents relating to the evaluation of tenders by reference to Criterion 4.3 –
“The Quality Assurance Plan”.
4. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (b0
– “Management Structures”.
All documents relating to the evaluation of tenders by reference to Criterion 4.2 (c) –
“Management Escalation Processes”.
9. The need for these documents is explained by WordPerfect on the basis that in awarding
higher marks to the winning tenderer based on information provided under various
headings, the Minister has unlawfully applied Undisclosed Award Criteria, and that he has
interpreted and applied the Supplementary Request for Tenders (“SRFT”) in an unlawful
manner. The Minister in his statement of opposition denied this claim, and argued that
each of the so-called Undisclosed Award Criteria “is an example, characteristic or relative
advantage provided to the applicant with the notification letter to assist it with, which the
applicant has mechanistically converted into an alleged undisclosed award criteria”.
10. A useful example of such a complaint can be found at para. 64 of the respondent’s
statement of grounds which states the following relevant to category 1 above (“Very
Urgent Requests for Service”):
“64. With respect to Very Urgent Requests for Service, the respondent applied an
undisclosed award criterion, “the Prioritisation Criterion”:
(1) The Notification criticised the applicant for not demonstrating an approach to
prioritising and establishing the urgency of requests for service (namely, for
non-compliance with the Prioritisation Criterion);
(2) The applicant understood – as would any reasonably well-informed and
normally diligent tenderer – that for the purposes of this question, all
requests were to be considered “very urgent” (unless they were requested
more than 24 hours in advance) and there was no requirement to prioritise
between requests;
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(3) Further, the applicant understood – as would any reasonably well-informed
and normally diligent tenderer – that all “very urgent” requests are to be
dealt with within 60 minutes and that any prioritisation would interfere with
this approach;
(4) The deduction of marks from the applicant in respect of the Prioritisation
Criterion is contrary to the requirements set out in the SFRT;
(5) The Prioritisation Criterion was not specified in the SRFT;
(6) The deduction of marks from the applicant in respect of the Prioritisation
Criterion involved the application of an undisclosed award criterion and/or
requirement;
(7) Had the applicant been aware of the Prioritisation Criterion, it could and
would have amended the applicant’s Tender accordingly;
11. Other instances of alleged undisclosed award criteria are contained in the statement of
grounds, and are further explained at paras. 10 – 67 of the affidavit of Aonghus
McClafferty, solicitor, grounding the application for discovery. As already stated, the
Minister refutes the allegation that by awarding higher marks to the winning tender he
has applied undisclosed award criteria, and pleads that any advantage identified in the
successful tenderer’s tender in the feedback that was provided to Wordperfect, and for
which additional marks were awarded to the successful tenderer, has been
“mechanistically converted” by Wordperfect into an undisclosed award criterion.
12. In response to the letter seeking voluntary discovery of categories 1, 2, 3, 4 and 5 the
Chief State Solicitor denied that these categories of documents were relevant and
necessary. Notwithstanding that denial, an offer was made on a without prejudice basis to
provide certain of the documents within categories 1, 2, 4 and 5. But category 3 was
refused in its entirety. In relation to categories 1 and 2 the offer was to provide “the
specific sections identified above of the final Evaluation Report as it relates to the
applicant”. The letter stated that “the balance of the document, which is irrelevant on the
pleadings, will not be provided or, where it appears on the same page as a discovered
section, will be redacted”. In relation to categories 4 and 5, the offer was “to provide the
specific sections identified above of the final Evaluation Report as it relates to the
applicant”. The letter went on to make the same comment regarding redaction.
13. The offer made in relation to providing certain documentation within categories 1, 2, 4
and 5 was not acceptable to WordPerfect, on the basis that the documents offered were
insufficient to enable WordPerfect to test whether undisclosed award criteria were applied.
The reasons why the documents offered are not considered to be sufficient are explained
by Mr McClafferty in his grounding affidavit. Principally he states at para. 17 thereof as
follows:
“17. … the category of documentation discovery of which is sought is directly relevant
to matters in dispute in these proceedings and is necessary for the fair disposal of
the proceedings and in particular, is necessary to enable the applicant to
demonstrate that the respondent has interpreted and applied the requirements set
out in the SRFT in an unlawful manner with respect to Very Urgent Requests for
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Service and also evaluated Very Urgent Requests for Service unlawfully. Discovery
of this documentation may also serve to save costs by avoiding disclosure at the
hearing and facilitating the admission of certain documents or facts, prior to the
hearing.”
14. Further paragraphs 21 – 24 of Mr McClafferty’s grounding affidavit stated the following:
“21. The applicant maintains that the respondent conducted an unlawful evaluation of its
tender through the application of Undisclosed Award Criteria. The Respondent has
“denied that the matters [identified by the applicant] were ‘undisclosed award
criteria’. Whether or not Undisclosed Award Criteria were applied is therefore clearly
in issue between the parties.
22. The discovery offered by the respondent is insufficient to enable the applicant to
test whether Undisclosed Award Criteria were applied, as in order to do so, it
requires sight, not just of the evaluation notes relating to its own tender, but those
applicable to the evaluation of the Very Urgent Requests generally.
23. It is also apparent that the final evaluation report will be insufficient; the
application of Undisclosed Award Criteria necessarily arises during the course of the
evaluation process. The final evaluation report will not record how that process was
conducted and is manifestly insufficient to enable the applicant’s claim regarding
Undisclosed Award Criteria to be tested.
24. Furthermore, the application of Undisclosed Award Criteria comprises only one of
the complaints made by the applicant relating to the evaluation of Very Urgent
Requests. By way of example only, another complaint is that the respondent erred
in awarding marks to the Successful Tenderer in respect of its approach to
identifying a suitable interpreter and notwithstanding that the applicant also
addressed this issue. Again, it is obvious that the applicant requires more than
sight of the section relating to it in the final evaluation.”
Categories 6, 7 and 8
15. Category 6 seeks the Successful Tenderer’s Tender and all documents submitted by that
party in response to the SRFT and any other requests for clarification. Category 7 seeks
all documents relating to the evaluation of the successful tender, and Category 8 seeks all
documents relating to the evaluation of the Wordperfect’s own tender. Mr McClafferty’s
affidavit, and the letter seeking voluntary discovery of these categories explains why this
discovery is needed. Firstly, it is contended that the Minister treated Wordperfect
unequally by comparison to the successful tenderer (which is denied by the Minister).
Secondly it is contended that the Minister has not explained the scores of the Successful
Tenderer in respect of a number of different criteria (which is denied). Thirdly,
Wordperfect contends that the Successful Tenderer should have been awarded fewer
marks in respect of those award criteria (which is denied by the Minister). It is argued
also that the Minister ought to have rejected the Successful Tender in its entirety on the
basis that it was an abnormally low tender. That is based on Wordperfect’s assertion that
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as explained in the grounding affidavit Wordperfect tendered its own tender at cost, and
yet achieved a lower mark than was awarded to the Successful Tenderer under the cost
criterion (the Minister denies this allegation).
16. In relation to categories 6, 7 and 8 the Minister refused to make any offer of voluntary
discovery on the basis that this was a general discovery request and amounts to ‘fishing’,
and in addition did not meet the level of indispensability that is referred to in the
judgment of this Court in Word Perfect v. Minister for Public Expenditure [2018] IECA 87
in relation to discovery of the rival’s successful tender document. The Minister’s response
also stated that the successful tender had expressly asserted the commercial
confidentiality of its tender documentation. The Minister considered that Wordperfect had
been provided with sufficient information in relation to the relative characteristics and
advantages of its own tender.
Category 9
17. Category 9 documents are all documents relating to the Minister’s failure to observe a
Standstill Period. The Minister declined this discovery firstly on the basis that there was
no “failure” as such since the standstill period is voluntary under law. Secondly, the
Minister stated that it is in any event not in dispute that there was no standstill period,
and that no factual dispute exists in relation to this purely legal question.
The trial judge’s judgment
18. Having outlined the grounds upon which Wordperfect seeks to challenge the decision to
award the contract to the Successful Tenderer the trial judge determined that all the
documents sought on the application were both relevant and necessary, and considered
that the application did not amount to a ‘fishing expedition’. He considered that the
grounds of challenge were not speculative, but rather derive from what he considered to
be “the very limited information which [the Minister] has, to date, made available to
Wordperfect”. He stated that the comparison table that came with notification of the
decision purported to identify in a summary form how it is that the successful tenderer
was awarded higher marks than those awarded to Wordperfect. He went on to state in
para. 61:
“This comparison table indicates that, in some instances, the successful tenderer
was awarded marks for offering to provide a higher level of service than that
actually prescribed under the SRFT”.
19. The trial judge’s conclusions are set forth at paras. 62 – 69 and it is convenient to set
them out as they appear in the judgment, as follows:
“62. WordPerfect wishes to advance an argument to the effect that this approach to
marking entailed the Contracting Authority placing reliance on undisclosed criteria.
Counsel on behalf of the Contracting Authority … submits that discovery is not
necessary to advance this argument … . More specifically, it is suggested that
WordPerfect is already in possession of all the documents necessary to make this
argument, namely the comparison table and the SRFT. It is suggested that
WordPerfect can point to the reasons in the comparison table as indicating that
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marks were awarded for particular items, and can then take the trial judge to the
terms of the SRFT, with a view to demonstrating that such items are not expressly
referenced in the table. Thereafter it is a matter for legal submission as to whether
this involves undisclosed award criteria.
63. With respect, I think that this argument involves an oversimplification of what is
likely to occur at the trial of the action. It appears from the Statement of Opposition
that the Contracting Authority intends to argue at the full hearing that what
WordPerfect seeks to portray as undisclosed award criteria are, in truth, no more
than examples of characteristics and relative advantages of the successful tenderer.
It is further suggested that WordPerfect has simply taken the reasons disclosed in
the comparison table for why the successful tenderer received higher marks, and
“mechanistically converted” these into alleged undisclosed award criteria.
64. Indeed, this argument was presaged to some extent at the hearing before me in
that counsel made express reference to the judgement in Baxter Healthcare v. HSE
[2013] IEHC 413. On the facts, the High Court rejected an argument that a
favourable comment in the evaluation of successful tender, to the effect that the
physical layout of the renal dialysis unit proposed by the successful tenderer would
involve less noise and disturbance for patients, meant that noise had been
introduced as an undisclosed award criterion. It was submitted by counsel that a
similar analysis should be applied to the facts of the present case.
65. This attempt to rely on Baxter Healthcare is consistent with the approach taken by
the Contracting Authority in its pleadings. The Contracting Authority has filed a full
defence to these judicial review proceedings. More specifically, the statement of
opposition filed on behalf of the Contracting Authority represents a full traverse of
the claims made by WordPerfect. Against this background, it is clear that issue has
been joined, and all these matters are in dispute.
66. Given the manner in which the issues have been joined in the pleadings, there is
simply no basis upon which WordPerfect can properly advance its case without
obtaining an order for discovery. Discovery is indispensable. WordPerfect needs to
have access to (i) the successful tenderer’s tender, and (ii) the evaluation of same,
in order to establish inter alia what precise specification the successful tenderer was
offering; the extent to which it goes beyond the specified award criteria; and what
weight and marks the Contracting Authority awarded for same. To date,
WordPerfect only has the benefit of the limited material provided to it by the
Contracting Authority. The comparison table is a document prepared ex post facto,
and is merely a summary of the evaluation process.
67. It may be useful to pause here, and to consider the implications of the Contracting
Authority’s argument if followed through to its logical conclusion. The essence of
the argument is that it is sufficient for the purposes of judicial review that the
applicant has access to limited information, authored by the relevant contracting
authority itself, which purports to provide an ex post facto summary of the
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evaluation process. On this argument, neither the applicant for judicial review - nor
ultimately the court when exercising its supervisory jurisdiction – is entitled to
examine the contemporaneous documentation. With respect, this is to place too
great a premium on the accuracy and reliability of a summary prepared by a
contracting authority. Without in any way impugning the bona fides of contracting
authorities, and ex post facto summary is not the best evidence. As the judgment
in Roche Diagnostics Ltd (discussed at paragraph 13 above) indicates, access to
contemporaneous documentation is critical in order to ensure that an unsuccessful
tenderer has effective judicial review. More generally, it is wholly consistent with
the approach adopted by the High Court (Baker J) in Somague Engenharia S.A. v.
Transport Infrastructure Ireland [2015] IEHC 723 (discussed at paragraph 12
above).
68. If WordPerfect is to have a meaningful opportunity to properly present its case at
full hearing, then discovery of both (i) the successful tenderer’s tender, and (ii) the
evaluation of same by the Contracting Authority, are necessary and indispensable.
The grounds which it pleads cannot be advanced at trial without WordPerfect being
able to take the trial judge to the contemporaneous documentation with a view to
persuading the judge that marks were indeed awarded in respect of undisclosed
award criteria. The compare and contrast exercise as between the specifications in
the SRFT and the evaluation of the successful tender cannot be done without sight
of category 6 and category 7.
69. I am also satisfied that WordPerfect has an entitlement to discovery of the
evaluation carried out of its own tender (category 8). The grounds of challenge
clearly identify concerns as to the manner in which both tenders were marked. As
noted above, WordPerfect has shown to a non-speculative level at least that marks
appear to have been deducted from it for having a level of service above that [was]
specified in the SRFT, whereas in the case of the successful tenderer, the opposite
seems to have happened, i.e. additional marks seem to have been awarded for
offering to exceed the specifications. Further, the argument that the deduction of
marks in respect of the mistaken inclusion of monthly rather than quarterly was
disproportionate or irrational is one which meets any requirement of non-
speculation.”
The Minister’s submissions:
Categories 1, 2, 3, 4 and 5:
20. The Minister submits that the trial judge erred in ordering discovery of these categories,
particularly in the light of the Minister’s offer of certain discovery of documents in these
categories. The Minister accepts the importance of transparency in a tendering process,
and that inter alia this must ensure that award criteria by which tenders are assessed are
confined to those identifiable from the SRFT. The Minister accepts that the successful
tenderer must not be awarded marks for criteria that are not disclosed in advance.
21. However, in the light of the explanations contained in the feedback provided to
Wordperfect, the Minister submits that the issue that the Court will have to determine in
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this regard is not whether the successful tenderer was awarded correct marks in relation
to the particular award criteria identified in the statement of grounds, but rather whether
by reference to the explanations provided to Wordperfect the relative advantage or
advantages identified in the successful tender which were considered to merit a higher
mark than was awarded to Wordperfect are just that (i.e. relative advantages) as the
Minister submits is the case, or whether as Wordperfect submits, they amount to
undisclosed award criteria. It is submitted that no discovery is required for Wordperfect to
advance its arguments in this regard as it will be an issue to be determined as a matter of
interpretation of the SRFT according to the test of the “reasonably well-informed and
normally diligent tenderer” (also referred to as the REWIND tenderer test), and in that
regard the Minister has relied upon the judgment of Finlay Geoghegan J. in Gaswise Ltd v.
Dublin City Council [2014] 3 I.R. 1, and her reference therein to the judgment of the
Court of Justice in Case C-19/00 SIAC [2001] ER-1-7725. In this regard, Finlay
Geoghegan J. stated:
“ … the court in answering the question should attempt to put itself in the shoes of
a reasonably well informed and normally diligent tenderer who would be responding
to this particular ITT [Invitation To Tender], i.e. a person providing the relevant gas
services, and should not do so as a lawyer.”
22. It is submitted that the trial judge will have to interpret the SRFT from the perspective of
“the reasonably well informed and normally diligent tenderer” in accordance with these
principles, and determine whether the “relative advantages” considered to exist in the
successful tender, and which attracted a higher mark that the responses by Wordperfect,
amount to or do not amount to undisclosed award criteria. It is submitted that while the
documents sought by Wordperfect are clearly relevant to the tender process generally,
they are not necessary or indispensable for the advancement of the particular issues of
interpretation of the SRFT raised on the pleadings in these proceedings, where no
disputed facts exist relevant to that question of interpretation, and therefore should not
have been ordered by the trial judge.
23. The Minister has also submitted that if the very broad discovery ordered by the trial judge
is permitted, it is likely that in future public procurement cases similar applications will be
made, where this is both unnecessary and will simply encourage unsuccessful tenderers
to launch an unspecific and broad challenge to the decision to award a tender, in the hope
that something can be found on discovery to give it substance – in other words a classic
form of ‘fishing’.
24. The Minister points also to the fact that categories 1 and 2 as sought and ordered
captures not only the tenders of the successful tenderer and that of Wordperfect, but also
the third tenderer in the competition, which is not even a party to these proceedings.
25. The Minister is willing, as indicated to Wordperfect in its response to its letter seeking
voluntary discovery to provide discovery of sections of the final Evaluation report
identified in categories 1 and 2 in so far as they relate to Wordperfect.
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26. As for category 3, the Minister submits that the trial judge erred in ordering discovery of
“all documents relating to the evaluation of tenders by reference to the criterion 4.3 – the
“Quality Assurance Plan”. Under this heading parties submitting a tender were supplied
with notional information and were asked to present that information based on one
calendar month. The successful tenderer did so, but Wordperfect presented it on a
quarterly basis, and as a result received a lower mark that the successful tenderer. The
feedback received by Wordperfect explained this situation, and Wordperfect has accepted
that it did so. No fact is therefore in issue in this regard. Wordperfect submitted that to
deduct marks in that regard was irrational and disproportionate. The Minister submits that
the trial judge was in error in concluding that all documents relating to the evaluation in
relation to this criterion are necessary – again since there is no disputed fact, and it will
be a matter for submission and argument at trial. The Minister has relied upon the
Supreme Court’s judgment in Carlow Kilkenny Radio Limited v. Broadcasting Commission
27. As for categories 4 and 5, the Minister has submitted that the trial judge erred in order
such wide discovery as sought, particularly where these documents are sought in relation
to complaints that Wordperfect makes in relation to how its own tender was evaluated,
and not that of the successful tenderer. The Minister had offered to provide discovery of
those parts of the Evaluation Report relevant to categories 4 and 5 as relate to
Wordperfect only. The Minister also makes another point under this category, namely that
in any event it would be disproportionate to have to make the discovery ordered in
relation to category 4 where the dispute involves a difference of just 1 mark between the
mark awarded to Wordperfect and that achieved by the successful tenderer, and where
the dispute to which category 5 relates involves a differential of just 0.5 of a mark.
The respondent’s submissions on Categories 1, 2, 3, 4 and 5
28. The respondent submits that the trial judge identified the correct legal principles to be
applied in these type of cases, and that that he correctly applied them. In particular, it is
submitted that the trial judge considered in detail the grounds upon which the challenge
to the Minister’s decision is made, and concluded that the documents sought by way of
discovery “are all directed to issues which are in dispute on the pleadings” and “are
predicated on the grounds pleaded”. The respondent rejects the Minister’s submission
that the trial judge disregarded the pleadings and did not carry out the kind of close
examination of the issues raised on the pleadings in order to determine if the documents
sought by way of discovery were necessary for the determination of the issues in the
case.
29. The respondent submits that the trial judge was correct to state that the application for
discovery was not a fishing expedition and also that this discovery was necessary if
Wordperfect is to have a “meaningful opportunity to properly present its case at full
hearing”.
30. The respondent characterises the issue raised as to Undisclosed Award Criteria to which
categories 1 and 2 relate as a factual dispute as to how the evaluations were carried out.
It submits that the question whether undisclosed award criteria were applied is an issue
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relating to the evaluation process, which therefore requires to be examined by the Court,
and therefore the documents sought under categories 1 and 2 are both relevant and
necessary. It is submitted that the offer made by the Minister to provide the Final
Evaluation Report will provide only a summary of the outcome and will not assist in
scrutinising the evaluation process.
31. The respondent disagrees that the issue as to undisclosed award criteria is purely a
question of interpretation and that there is no factual dispute which would be assisted by
discovery as sought. It contends that there is a clear factual difference between an
undisclosed award criterion and what is called by the Minister “a relative advantage”. It
submits that this is a question of fact which can only be resolved by an examination of the
evaluation documents. It is submitted that there is no error in the trial judge’s
determination as to necessity of the documents sought and ordered to be discovered.
32. As for category 3 documents, which includes but is not limited to parts of the successful
tenderer’s tender the respondent submits that the dispute as to Wordperfect’s tender
being marked down because it presented the notional information on a quarterly basis
whereas the SRFT specified that this should be done on a monthly basis, is a factual
dispute for which discovery of this category of documents is necessary for its fair disposal.
In so far as there may be confidentiality issues arising from the discovery of the
successful tenderer’s tender submission, and a public interest in promoting a competitive
tendering process, Wordperfect submits that this public policy can be adequately
safeguarded by the use of a confidentiality ring or inspection protocol such as was
envisaged in the Inspection Protocol attached to the order made in this case.
Conclusion on categories 1, 2, 3, 4 and 5
33. In my view, while the trial judge correctly identified from the judgment of this Court in
BAM that the first task on an application for discovery is to ascertain the issues that arise
on the pleadings, as it is these issues alone that arise for determination at the substantive
hearing. Clearly the Court cannot decide if documents sought by way of discovery are
relevant to the issues in the proceedings until those issues themselves have been clearly
identified. Once relevance to those issues is established, the question then arises is
whether the documents are necessary for the fair disposal of the issues, and a question of
proportionality may then arise also. The principles in BAM, which both parties accept are
the applicable principles, make that position clear. It is also clear both from BAM and
long- recognised prior authority that where an issue is raised only to the level of
speculation by the party seeking discovery, in the hope that something will turn up on
discovery that may substantiate the speculative issue, discovery will not be ordered.
34. The trial judge stated at para. 7 of his judgment:
“On the facts of the present case, the categories of documents sought are
undoubtedly relevant all relate to issues in the proceedings. As explained at
paragraph 60 below, the documents all relate to issues in the proceedings”.
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35. Having so stated the trial judge went on to state that “the debate before me was directed
principally to questions such as whether the discovery sought was necessary, reasonable
or proportionate”.
36. Paragraph 60 of the judgment stated as follows:
“There is no doubt that the categories of documents in respect of which discovery is
sought satisfy the requirement of relevance. They are all directed to issues which
are in dispute on the pleadings. In this regard it is to be noted that the Contracting
authority has filed a statement of opposition that constitutes a full traverse of the
claim.”
37. The trial judge was satisfied also that the grounds of challenge were not speculative and
derive from the limited information provided to Wordperfect by the Minister.
38. I have already set forth paras 62 – 69 from the judgment of the trial judge. He addressed
in some detail the issue to which categories 1 and 2 relate, namely the undisclosed award
criteria issue which I have outlines above. Having noted the Minister’s contention that this
issue was simply a matter for legal submission at the substantive hearing and to which no
factual dispute arose, the trial judge stated that he considered that to be an over-
simplification of what would likely arise at trial given the position of the Minister as
appears from the traverse in the statement of opposition. As seen from para. 66 of the
judgment, the trial judge considered that “given the manner in which issues have been
joined in the pleadings, there is simply no basis upon which Word Perfect can properly
advance its case without obtaining an order for discovery”. I have already set forth the
balance of paras 62 -69 and will not therefore do so again.
39. While the trial judge’s conclusions as to relevance commenced by reference to the
undisclosed award criteria, his overall conclusion that discovery was necessary and
indispensable appears also to embrace the discovery sought in relation to all categories of
documents sought.
40. I respectfully disagree with the conclusions of the trial judge as to relevance and
necessity. In my view while he carried out some examination of the issues in respect of
which categories 1 and 2 were sought by Wordperfect, namely the allegation that
undisclosed award criteria had been applied resulting in Wordperfect receiving a lower
mark than the successful tenderer, he failed to appreciate that while the statement of
opposition undoubtedly traversed the grounds contained in the statement of grounds, the
issue itself is simply whether the reasons given in the feedback provided to Wordperfect
for awarding a higher mark to the successful tenderer is properly construed as being an
undisclosed award criteria, or whether as the Minister contends it reflects “an example,
characteristic or relative advantage” contained in the successful tender submission
justifying a higher mark. There is, in my view, no factual issue which must be resolved in
order to determine that issue. Wordperfect knows already the marks awarded both to it
and the successful tenderer, and the explanation for the difference between the two. That
information is already known, and I cannot see that sight of the documents relating to the
Page 14 ⇓
evaluation of tenders covered by categories 1 and 2 might assist Wordperfect in making
that case. I would refuse discovery of categories 1 and 2 on the basis that they are not
relevant to the relatively narrow issue to which they are said to be relevant.
41. In relation category 3, the trial judge would appear to have concluded relevance by the
all-embracing conclusion as to relevance contained at para. 7. He makes a brief reference
to this category again at para. 69 where he stated:
“Further, the argument that the deduction of marks in respect of the mistaken
inclusion of monthly rather than quarterly reports was disproportionate or irrational
is one which meets any requirement for non-speculation”.
42. While I would not disagree that the issue is raised above the level of speculation, it does
not follow that in order to advance its case on this point, Wordperfect needs discovery of
“all documents relating to the evaluation of tenders by reference to Criterion 4.3 – the
Quality Assurance Plan”. The issue that the Court must determine is whether having
specified in the SRFT that reports were to be prepared on a monthly basis, and where
Wordperfect failed to comply with this requirement by instead providing a report on a
quarterly basis, it was impermissible to award Wordperfect a mark that was lower than
that awarded to the successful tenderer where the latter had provided a report on a
monthly basis as required. In my view that issue is a matter for legal argument and
submission by reference to the SRFT and the feedback report which explains the basis on
which marks were awarded. There are no facts in dispute which require sight of the
category 3 documents for their resolution.
43. As for categories 4 and 5 as sought, again I consider that the trial judge failed to consider
adequately the actual issues to which discovery of these categories is said to be relevant
and necessary. He did not identify that the complaints made relate to how Wordperfect’s
own tender was marked and not that of the successful tenderer. The trial judge addresses
these complaints in his judgment at para 40 et seq. In so far as the successful tenderer
obtained marginally higher marks than Wordperfect in relation to certain aspects of
“Management Structures” and “Management Escalation Processes”, it is on the basis also
that the justification explained amounts to an undisclosed award criterion (see para. 43 of
the judgment). Again, I consider that these issues, as with categories 1 and 2 already
dealt with, are issues that can be fairly resolved without the discovery of the
documentation sought. They are issues of interpretation, not dependent upon information
that may be discerned from the documents sought by way of discovery. While the
documents sought may have relevance to the tender competition in that general sense
they lack relevance to the precise issues that will be determined in the substantive
proceedings and are not therefore necessary for the fair determination of the
proceedings. Neither would there be a saving in costs. In fact the ordering of discovery
would unnecessarily add to the costs of the proceedings. I would refuse to make an order
in respect of these categories also.
44. Having said all that in relation to categories 1, 2, 3, 4 and 5, I note that certain
documents within categories 1, 2, 4 and 5 were offered by the Minister on a voluntary
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basis. That offer was refused. The Minister may well be still willing to offer that discovery
if Wordperfect wishes to now avail of it. That is a matter for the parties.
Categories 6, 7, and 8
45. The documents sought under these categories are the followings:
6. The Successful Tenderer’s Tender and all documents submitted by the Successful
Tenderer in response to the SRFT and/or in response to any requests for
clarification, including any communications between the Successful Tenderer and
the Respondent duringthecourse of the Competition.
7. All documents relating to the evaluation of the Successful Tenderer’s Tender.
8. All documents relating to the evaluation of the Applicant’s Tender.
46. Wordperfect sought discovery of these categories of documents in order to support
grounds 8 – 10 of their statement of grounds which allege the following:
Ground 8: A breach of equal treatment in the evaluation of the applicant’s tender
by comparison with that of the Successful Tenderer.
Ground 9: A failure on the part of the [Minister] to explain the scores of the
Successful Tenderer in respect of a range of Award Criteria and the applicant’s
concern that the Successful Tenderer should have been awarded fewer marks.
[Emphasis provided]
Ground 10: Unlawful acceptance of an abnormally low tender from the Successful
Tenderer.
47. Wordperfect submitted in the High Court that given the denial of these grounds in their
entirety in the statement of opposition, discovery of these categories of documents was
both relevant and necessary for the proper determination of the issues arising.
48. In resisting the application for discovery, the Minister submitted that in seeking the
entirety of the successful tenderer’s tender and the entirety of the evaluation,
Wordperfect was in effect seeking general discovery, and was indulging in a so-called
fishing expedition. It was submitted that such general pleas in a statement of grounds
could not satisfy a test of necessity in accordance with the principles in BAM, and it was
submitted that, in reality, Wordperfect was seeking discovery for the impermissible
purpose of obtaining the successful tenderer’s tender.
49. The Minister also submitted that it appeared from the statement of grounds that
Wordperfect was attempting to make the case that in relation to certain Award Criteria
where it received equal marks to those awarded to the successful tenderer, the marks
awarded to the successful tenderer had not been explained, and that it needed discovery
as sought under these categories in order to make the case that in fact the successful
tenderer should not have been awarded even the marks that it did receive. In that
regard, it was pointed out by the Minister that Wordperfect had stated in its statement of
Page 16 ⇓
grounds that it reserved its right “to provide further particulars once reasons have been
provided, whether by way of discovery or otherwise”. This, it was submitted, was clearly
indicative that the claims in this regard are mere speculation, and that the application for
discovery amounted to “fishing”. In addition, the Minister submitted that there was no
obligation on him to explain scores where equal scores were obtained by each party, since
there were no relative advantages identified in favour of the successful tenderer. In
making that submission, the Minister had referred to, and relied upon, the judgment of
this Court in WordPerfect v. Minister for Public Expenditure (No. 3) [2018] IECA 156.
supporting his contention that where marks awarded to the successful tenderer in respect
of a particular award criterion are equal or lower, there is no obligation upon the
contracting authority under Regulation 6 of the European Communities (Public Authorities’
Contracts) (Review Procedures) Regulations 2010 (S.I. 130 of 2010) to give reasons for
the marks awarded in respect of that criterion.
50. On the other hand, Wordperfect had submitted that the claim of breach of equal
treatment was similar to the claim made in Bombardier Transportation Limited v.
Merseytravel [2017] EWHC 726 which held that a claimant alleging a breach of equal
treatment “is entitled to investigate fully the comparative treatment of the tenders, either
to confirm criticisms it has already made, or to found freestanding allegations”. It also
relied the judgment of Hogan J. in this Court in Wordperfect v. Minister for Public
Expenditure and Reform (No. 2) [2018] IECA 87 in which a portion of the successful
tenderer’s tender dealing with Quality Assurance was found to be discoverable where no
explanation had been offered by the Contracting Authority as to why it had been awarded
a score of 170 marks.
51. The trial judge referred to those judgments and others to which he had been referred
during the course of argument. Addressing the question of the practical difficulties facing
an applicant in judicial review wishing to challenge the decision to award a contract to
another tenderer due to the fact that the party does not have sight of the successful
tender and the evaluation of same, the trial judge stated that “in particular” he had been
referred to the judgment in Roche Diagnostics Ltd v. The Mid Yorkshire Hospitals NHS
Trust [2013] EWHC 933 (TCC) from which he quoted para. 28 as follows:
“Secondly, and most important of all, I consider that the Claimant is entitled to see
all of the documentation produced for and occasioned by the actual evaluation
process itself. I consider this to be fundamental. It appears that all of the
spreadsheets so far provided are ‘after the event’ exercises and that, thus far, the
defendant has not provided the documents, including the spreadsheets, which were
produced during the evaluation exercise. Yet, at trial, in a procurement case such
as this, the court will work carefully through how the evaluation itself was carried
out. Conventionally that is done by reference to a file of documents which contains
the actual evaluation exercise as it was carried out on both bids. That
contemporaneous documentation is critical in a case of this kind and the Claimant
has made out a clear entitlement to see that material now. (I understand that in
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Germany, for example, public authorities are obliged to keep a file in which all the
documentation produced as a result of a tender evaluation is retained. At the end of
the bidding process, copies of that file are provided to all the tenderers. For the
reasons are apparent in this judgment, I consider that that is an approach which
has much to commend it).”
52. The trial judge then referred to a commentary upon the judgment in Roche in Browne &
McGovern, Procurement Law in Ireland (Round Hall, Dublin) where at paras. 15-702/703
the authors state:
“This decision suggests that once proceedings are issued and the claimant can show
a basic case, it is entitled to see documentation relating to how the evaluation
process was carried out in order that an informed view can be taken as to its
fairness and legality. It is not appropriate for the contracting authority to proffer
only documents created after the issuing of proceedings in an attempt to show that
its evaluation was carried out correctly. On that basis, those evaluating should be
mindful that documents they create at the time of evaluation are disclosable and
could be ordered to be disclosed at an early stage in proceedings. Even before
proceedings are issued, contracting authorities should consider carefully any
request for information and/or documents from a bidder and whether the provision
of such information and/or documentation may help resolve a potential dispute
without a formal claim having to be made. In Wealden Leisure Ltd v. Mid-Sussex
District Council, disclosure of the final tenders was ordered to allow the claimant to
plead its case that the successful tender may have been abnormally low. However,
the High Court of England and Wales (Akenhead J.) refused certain applications for
discovery in Pearson and Covanta although certain elements of discovery/disclosure
were agreed or ordered.
Aggrieved tenderers are considered to be in ‘the uniquely difficult position’ of
knowing that they have lost while the reasons for their failure remain ‘within the
peculiar knowledge of the public authority’. The decision in Roche in relation to pre-
action disclosure confirms that contracting authorities in England and Wales are
under a duty under the Civil Procedure Rules to disclose basic documentation
without proceedings having to be issued. This duty to disclose should be construed
in conjunction with the Freedom of Information Act and the Environmental
Information Regulations.”
53. It seems that the trial judge was persuaded by these authorities that categories 6, 7 and
8 of the discovery should be ordered on the basis that without sight of such them
Wordperfect would not be in a proper position to mount its case that the successful
tenderer ought not to have been awarded the scores that it received under the particular
criteria, even though its own scores under the same criteria were equal.
54. The Minister on this appeal has submitted that the ordering of these categories is an error
on the part of the trial judge. It is submitted that he has erred in concluding that the
grounds of challenge upon which the request for these documents rely are not speculative
Page 18 ⇓
in nature, despite the general and generic nature of the pleas in question. It is submitted
that such generalised claims can be made in any procurement case, and that to allow
discovery in relation to same would have serious implications for the procurement
process. In so far as the Minister has submitted that the pleas contained in the statement
of grounds with regard to alleged unequal treatment, the Minister referred to the
necessity in public procurement cases for grounds of complaint to be stated with
to the judgment of Hogan J. in Wordperfect (No. 2) who stated at para. 13:
“Relevance for discovery purposes is, of course, determined in the first instance by
reference to the pleadings. This is perhaps especially true in procurement cases
where the parties are expected to bring forward their entire case with particularity
within a short period of time and where the possibility of amendment of pleadings is
generally limited. It is therefore necessary carefully to scrutinise the case made by
[the applicant] in the grounding statement.”
55. The Minister also submits that the question whether the Minister is obliged to provide
reasons why particular marks were awarded to the successful tenderer where those
marks are equal to the marks awarded to the applicant, is a question of law and therefore
not dependent upon anything that might be gleaned from discovery as sought in these
categories. The Minister refers to the fact also that in its respondent’s notice on this
appeal Wordperfect has at para. 8 (15) thereof stated, inter alia, that the point being
raised is that “Wordperfect is concerned that the Successful Tenderer should have been
awarded fewer marks in respect of these Award Criteria” [Emphasis provided]. The
Minister submits that being “concerned” amounts to speculation, and as such, cannot
form a proper basis for ordering the discovery of these categories of documents. The
Minister has placed reliance on the judgment of the CJEU in Varec S.A. v. Belgium, Case
C-450/06 where at paras 39-40 the Court stated:
“ … effectiveness would be severely undermined if, in an appeal against a decision
taken by a contracting authority in relation to a contract award procedure, all of the
information concerning that award procedure had to be made unreservedly
available to the appellant, or even to others such as the interveners.
In such circumstances, the mere lodging of an appeal would give access to
information which could be used to distort competition or to prejudice the
legitimate interests of economic operators who participated in the contract award
procedure concerned. Such an opportunity could even encourage economic
operators to bring an appeal solely for the purpose of gaining access to their
competitors’ business secrets.”
56. The Minister in this regard has referred also to this court’s judgment in WordPerfect
(No.2) and its emphasis upon the importance of confidentiality and the protection of
business secrets in relation to the tender process where business rivals must often reveal
their business secrets when advancing their best case in the tender submission.
Page 19 ⇓
57. As regards WordPerfect’s contention that the successful tenderer submitted an abnormally
low tender, and that discovery of these categories is required in order to support that
plea, the Minister submits that discovery is not necessary in circumstances where it is not
alleged that WordPerfect’s pricing strategy was known to the Minister. The Minister points
also to the fact that the differential of 9.65% between Wordperfect’s tender price and that
of the successful is admitted by the Minister, and therefore not a matter in dispute
between the parties. The Minister also submits that it is clear that the discovery sought in
these categories does not in the main relate to the score awarded in relation to price.
58. Turning now to the reliance by Wordperfect upon the judgment in Roche already referred
to, the Minister submits that it does not represent the law here, in the light of the
judgment of this Court in BAM which overturned the judgment of the High Court in that
case which had followed the Roche approach.
59. In response Wordperfect denies that the pleadings supporting the discovery of these
categories are vague, generic and general, and submits that the claims for which
discovery of these categories of discovery are sought are clearly set forth in the
statement of grounds in paras. 59 – 82.
60. The respondent takes issue with the Minister’s reliance upon Wordperfect (No. 3), and
submits that the Minister has mischaracterised the judgment in Roche, and refers to the
fact that the Roche judgment is not even referenced in the BAM decision of this Court
relied upon by the Minister.
61. In my view the seeking of discovery of the documents in categories, 6, 7 and 8 amounts
to a fishing exercise in the hope that by obtaining the successful tenderer’s tender
something may turn up that can substantiate the claims being made. The submissions of
Wordperfect on this appeal state that categories 6, 7 and 8 arise from claims made in the
statement of grounds as to Breach of Equal Treatment, Unjustified Scores, and
Abnormally Low Tender. Those headings appear in the statement of grounds at paras. 78
et seq. But in my view there is insufficient particularity of these claims to indicate that
discovery is necessary. I agree with the submissions of the Minister in this regard. To an
extent also, what is pleaded mirrors the claims already referred to in relation to
undisclosed award criteria, and does not advance the claims further. As regards the plea
of unequal treatment stated in para. 78 for example, the following paragraph states that
“In this regard, the applicant will rely, in particular (and without limitation) on the pleas
already made above”.
62. I would refuse discovery of these categories also.
Category 9: The ‘no standstill period’ claim
63. Wordperfect has pleaded that the Minister acted unlawfully by failing to conduct a
Standstill Period in respect of the award of the contract, and further that in so failing, the
Minister has breached Wordperfect’s legitimate expectations and/or made
representations.
Page 20 ⇓
64. The basis for these claims appear at paras. 60 and 61 of the statement of grounds. The
pleas of unlawfulness are contained in para. 60, and raise purely questions of law. The
case being made as to breach of legitimate expectation was summarised by the trial
judge at para. 31 of his judgment as follows:
“31. … It is also alleged that the Contracting Authority breached WordPerfect’s
legitimate expectation that there would be a standstill period. In this latter
connection, a number of factual matters have been pleaded by WordPerfect as
follows. It is alleged that the Contracting Authority has previously always observed
a standstill period when awarding contracts pursuant to the framework agreement.
Express references then made two other mini-tenders conducted pursuant to the
framework agreement. WordPerfect pleads more generally that, as a matter of Irish
public policy and the Contracting Authority’s custom and practice, a standstill period
is generally observed for contracts awarded pursuant to a framework agreement. It
is stated that WordPerfect has tendered for many public service contracts in Ireland
over many years, and has never come across a situation where a standstill period
has not been observed. The Contracting Authority has joined issue with all of this.”
65. In his statement of opposition, the Minister denied that there was any legal obligation to
provide a standstill for this contract, and went on to state that while it was a matter for
legal submission, the legal position is that under the EU procurement regime “Member
States may avail of derogations from a standstill period including in cases of contracts
called off under a framework agreement. This derogation was invoked by Ireland in
transposing the EU procurement regime. The Minister also pleaded that the applicant’s
allegations in respect of the interpretation of tender documentation or time-barred, and
therefore that any claim regarding the absence of a standstill period should have been
brought within the 30 day time limit. Without prejudice to those objections, the Minister
denied that the terms and conditions of the tender documentation incorporated a
standstill period for the contract, and stated that at the trial of the action he would refer
to the terms and conditions of the tender documentation for their meaning and legal
effect.
66. Turning then to the claims being made that the Minister made representations to
WordPerfect to the effect that a standstill period would be applied, this claim is denied.
The Minister goes on to plead:
“No such representation was made to the applicant. Further, the custom and
practice upon which the applicant purports to rely is not admitted and, in any
event, is not a representation made to the applicant whether in the context of the
Contract or at all.
67. At para. 13 of the statement of opposition the Minister pleads:
“13. Without Prejudice to the above, it is admitted that in the context of two
previous mini-tenders conducted pursuant to the Framework Agreement a Standstill
Period was observed. It is denied that the practice adopted in those mini-tenders
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constituted a representation to the applicant or was in any way capable of giving
rise to an expectation reasonably held by the applicant to the effect that a Standstill
Period would be applied in respect of the Contract.”
68. The documents sought in category 9 related to these claims regarding no Standstill
Period. The documents sought are “all documents relating to the respondent’s failure to
observe a standstill period”. The trial judge granted this discovery as sought. He does not
appear to have given specific consideration to the necessity of such a wide category of
documents, but, as previously stated, did conclude that all the discoveries sought in the
various categories was both relevant and necessary.
69. It does not seem to me that any case of necessity is made out for such a general
category of documents as sought. If WordPerfect wishes to pursue a claim that its
legitimate expectation in this regard was breached, it is in a position to give its own
evidence as to the basis for the claim both factually and as a matter of law. It will be able
to give evidence as to what it considered to be a reasonably held expectation based on
the representations as pleaded. It is entirely unclear what documents it considers would
be in the possession of the Minister that would be relevant and necessary to support its
claim. The Minister submits that this question is a purely legal issue and requires no
determination as to fact. Insofar as WordPerfect wishes to rely upon representations
giving rise to a reasonable expectation that there would be a standstill period the Minister
submits that WordPerfect can give whatever evidence it wishes to give in that regard on
affidavit and that discovery of documents does not arise. Indeed, it can be observed that
the deponent of the affidavit grounding this application for discovery has made averments
as to the basis for the legitimate expectation claim. The Minister makes the point also
that the discovery ordered is entirely non- specific and general.
70. Again, I agree with the Minister in regard to category 9 documents. The category seeks a
general trawl of any documents that the Minister might have in relation to the failure to
observe a Standstill Period relating to this contract. But I am not satisfied that a case of
necessity is made out. Indeed, in the absence of any detail as to the sort of documents
that might exist it is impossible to be satisfied that such documents would be relevant and
necessary. I would refuse category 9 documents as sought.
71. For the above reasons I would allow the appeal and vacate the order dated 14th March
2019.
Result: Allow appeal