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URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_48.html
Cite as: 2018 SLT 925, [2018] BLR 698, [2018] CSIH 48, [2018] ScotCS CSIH_48, 2018 GWD 26-331

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Menzies

Lord Malcolm

[2018] CSIH 48

P430/18

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Reclaiming Motion by

BILFINGER CONSTRUCTION UK LIMITED

Petitioners and Reclaimers

against

THE EDINBURGH TRAM INQUIRY

Respondent

Petitioners and Reclaimers: Borland QC, Byrne; Pinsent Masons LLP

Respondent: Lake QC, McClelland; Solicitor to the Edinburgh Tram Inquiry

12 July 2018

Introduction

[1] On 25 April 2018, the respondent refused an application by the petitioners, in terms

of section 19 of the Inquiries Act 2005, to prevent publication of certain information

produced by them at the respondent’s request under section 21 of that Act. The information

consisted of entries in monthly reports which had been submitted by the petitioners to their

group headquarters during the progress of the Edinburgh Tram Project, including: project

overview charts; performance sheets; weighted results with chances and risks; cost

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reconciliations and forecasts; overview movements of contingencies; commentaries;

approved change orders; and unapproved changes. A sample report dated May 2009, in

both its original and proposed redacted form, was produced and agreed as representative.

[2] On 8 May 2018, the Lord Ordinary refused the petitioners’ motion for interim

suspension of the decision and interim interdict from publishing the reports. The Lord

Ordinary determined that the petitioners had failed to demonstrate a prima facie case; albeit

that the balance of convenience would otherwise have favoured the grant of the interim

orders sought. In particular, the petitioners had failed to show that the reports contained

information which, if revealed to the public, would cause the petitioners loss and damage.

In this reclaiming motion, the petitioners challenge that decision. The respondent cross-

appeals on the balance of convenience.

Statutory provisions

[3] In terms of section 17 of the 2005 Act, the procedure and conduct of an inquiry are

such as the chairman may direct. “In making any decision as to the procedure or conduct of

an inquiry, the chairman must act with fairness ...”. Section 18 places a duty upon the

chairman to “take such steps as he considers reasonable to secure that members of the public

(including reporters) are able – …(b) to obtain or to view a record of evidence and

documents given, produced or provided to the inquiry…”.

[4] Section 19 provides for restrictions to be imposed on disclosure or publication of any

evidence or documents by means of a “restriction order”. Such an order must specify only

such restrictions “(a) as are required by any statutory provision, enforceable EU obligation

or rule of law, or (b) as the…chairman considers to be conducive to the inquiry fulfilling its

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terms of reference or to be necessary in the public interest, having regard in particular to the

matters mentioned in subsection (4).” Those matters are:

“(a) the extent to which any restriction on…disclosure or publication might

inhibit the allaying of public concern;

(b) any risk of harm or damage that could be avoided or reduced by any such

restriction;

information that he is to give, or has given, to the inquiry;

(d) the extent to which not imposing any particular restriction would be likely –

(i) to cause delay or to impair the efficiency or effectiveness of the

inquiry, or

(ii) otherwise to result in additional cost (whether to public funds or to

witnesses or others).”

“Harm or damage” includes damage caused by disclosure of commercially sensitive

information.

[5] Section 37 confers immunity from suit on members of inquiries in respect of acts

done in good faith in the purported execution of their duties.

Background

[6] The Edinburgh Tram Project was a proposal which, in its final form, was to construct

a tram line from Newhaven, up Leith Walk, through the city centre and on past the Gyle to

the airport; a distance of some 11.5 miles. The cost was estimated at about £500 million, of

which the vast majority of funding was to come from the Scottish Government. A contract

for the work was signed in 2008 whereby a consortium (BSC), comprising the petitioners,

Siemens plc and a Spanish company (CAF), were to build the line. The petitioners were

responsible for the civil engineering works and Siemens for the rail and electrical works.

The project managers were Transport Initiatives Edinburgh (TIE), a company wholly owned

by the City of Edinburgh Council. The work was bedevilled with disputes and delays. By

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the time the line opened to the public in May 2014, the length had been substantially

reduced to between the airport and York Place (8.7 miles) and the cost had spiralled to

something in the region of £1 billion. Shortly after the opening, the Scottish Government

announced that a public inquiry would be held to scrutinise the project.

[7] In November 2014, what had been a non-statutory inquiry was changed to one under

the 2005 Act. This was, according to the chairman (Lord Hardie), because of a lack of co-

operation by some of those involved. The respondent’s remit remained unchanged and is:

“To inquire into the delivery of the Edinburgh Trams project …, from proposals for

the project emerging to its completion, including the procurement and contract

preparation, its governance, project management and delivery structures, and

oversight of the relevant contracts, in order to establish why the project incurred

delays, cost considerably more than originally budgeted for and delivered

significantly less than was projected through reductions in scope.

To examine the consequences of the failure to deliver the project in the time, within

the budget and to the extent projected.

To otherwise review the circumstances surrounding the project as necessary, in order

to report to the Scottish Ministers making recommendations as to how major tram

and light rail infrastructure projects of a similar nature might avoid such failures in

future.”

[8] At a preliminary hearing on 6 October 2015, at which the petitioners were

represented as core participants, the chairman expressed his concerns about the mass of

documentation which, it was estimated, would be potentially relevant. He advised that

much searching through this material would be needed. He continued:

“While it is anticipated that the strategy will result in the identification for analysis of

the most significant documents ... some of the Core Participants may consider that

there is additional relevant material that has either not been identified or has been

excluded through the review process that we have adopted. They may also wish

other documents to be included in the material available to the Inquiry to reflect their

particular interests.

So an important role for Core Participants will be to draw to the attention of the

Solicitor to the Inquiry any documents that they consider to be of significance that

have been omitted. As we move forward, I would encourage parties to fulfil those

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obligations to ensure that their interests and the interests of their clients are

adequately represented in an Inquiry that is shown to be thorough and balanced.”

[9] As the inquiry progressed, the respondent developed a system designed to comply

with the statutory duty to secure that the public had access to the documents produced by

placing some of these on the Inquiry’s public website. The distribution of some material

was restricted by being put on another website, namely “Haymarket”, which is accessible

only by core participants.

[10] On 5 December 2017 the petitioners’ former project director, namely MF, gave

evidence about the petitioners’ reporting methods; notably the sending of monthly reports

to the petitioners’ headquarters in Mannheim. He had earlier mentioned these reports in his

witness statement. He testified that the reports were:

“very similar reports which we do basically on a monthly basis with TIE to (sic) that

time. I think you have seen these, and they are basically with some addition of

executive summary or whatever, basically the same reports. But they must be in

Germany.”

The reports had not been produced to the respondent. On 11 December 2017 the respondent

requested sight of them. On 17 January 2018 the petitioners asked to lodge only redacted

versions, but this request was declined. On 6 February 2018 the respondent issued a notice

under section 21 of the Act requiring production of the reports. The material was produced

on 12 February. On 1 March the respondent intimated that it intended to upload the

materials to the Haymarket database, thus making them available to the core participants.

[11] There had previously been an application by Siemens to restrict publication of

certain material produced by them. This was granted on 22 June 2017. The petitioners

describe this in the following way:

“9 … The subject of the Siemens Application ... was, so far as the Petitioner is aware,

commercially sensitive and confidential pricing information relative to Siemens in

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respect of the Edinburgh trams project. So far as the Petitioner is aware, the Chairman

granted the Siemens Application, and did so having regard to the risk of harm to

Siemens if the information was disclosed to their commercial competitors or the

public at large. Thus, as the Petitioner understands it, the Chairman reached the

decision he did relative to the Siemens Application on account of the commercially

confidential nature of the pricing information contained within the Siemens

documentation at issue.

10 … Importantly, the Siemens Application was, so far as the Petitioner understands it,

made on substantively the same basis as the Petitioner Application… As averred, so

far as the Petitioner understands it, the Chairman reached the decision he did relative to

the Siemens Application on account of the commercially confidential nature of the

pricing information contained within the relevant Siemens documentation”

23 … So far as the Petitioner understands it, the Chairman has made a … restriction

order in favour of Siemens… in relation to exactly the same kind of information as

the Petitioner wishes to prevent the disclosure of… There is no proper justification

for the proposed unequal treatment of the two different parts of [the consortium].

The basis for the Siemens Application, so it is understood, was the same as that of the

Petitioner Application…” (emphases added).

The repeated failure to aver the content of the Siemens’ application and the respondent’s

reasoning for granting that application as fact, rather than being the subject of the

petitioners’ awareness or understanding, is peculiar. This is especially so given that

Siemens had provided the petitioners with a copy of their application before the petitioners

presented this petition; even if it was on condition that, although they could refer to its

content, they could not lodge it with the court.

[12] On 12 March 2018, the petitioners made their own application. In the petition it is

described in summary, as follows:

“11 … The Petitioner Application explained clearly, and in detail ... the

confidentiality and sensitivity of the Confidential Information, as well the (sic) very

real risk of significant harm were the information to be disclosed publicly. The

Petitioner Application was supplemented by an affidavit (sic) from two senior

Bilfinger group legal counsel ... [T]he Petitioner detailed the harm which would

follow disclosure of the Confidential Information ... [T]he Petitioner identified that

the disclosure of the reporting methodology of the Petitioner would amount to

disclosure of a trade secret. The foregoing information has at the present time a

material commercial value to the Petitioner, and thus to its competitors ... Were the

Confidential Information (or the methodology) to become public, there is a real and

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substantial possibility – if not probability – of the Petitioner’s competitors using it to

undercut the Petitioner on price when tendering for construction projects ... the

Confidential Information (including the methodology) could be used to the material

disadvantage of the Petitioner, and other members of the [petitioners’] group, by

prospective employers to whom the Petitioner, or other group members, tender for

work.”

The application’s reference to the Siemens’ application was in the following, limited form:

“5. CONSISTENCY IN APPROACH – SIEMENS’ EXPERIENCE

[The petitioners are] aware that other core participants (in particular ... Infraco

partner Siemens), have successfully made applications for restriction orders under

section 19(2)(b) of the Act. We refer to the document ... which has been redacted by

the Inquiry and to the Inquiry transcript ... where this issue was raised during the

evidence of [MF].

5.1 [The petitioners] respectfully request[s] that [they are] afforded the same

consideration as that shown to other core participants in the Inquiry’s determination

of this application.”

Decision of the respondent

[13] The respondent determined that: the reports were relevant to its terms of reference;

they were sufficiently material that restriction of publication might inhibit the allaying of

public concern; and there was a strong public interest in their release in order to contribute

towards an understanding of the reasons for the conclusions which the inquiry might reach.

Whilst acknowledging the public interest in the prevention of harm due to the release of

commercially sensitive information, the respondent was not satisfied that the redactions

sought contained information, the disclosure of which would give rise to a risk of harm or

damage. In particular: (i) the application was at a high level of generality with little or no

specification (with examples) of why, or to whom, the information was commercially

sensitive; (ii) specification of the type of harm or damage was similarly lacking; (iii) it was

not obvious that the information was not simply of a type, largely relating to income and

expenditure, that might be reported in any large infrastructure project; (iv) it was not

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obvious that there was anything commercially sensitive in the way in which the information

was presented; (v) there was little or no explanation as to why the information may be

relevant to other projects, particularly given the passage of time; (vi) the information, and

the way it was presented, would have been available to individuals no longer employed by

the petitioners and it was unrealistic to suggest that it remained wholly within the

petitioners’ control. The reports had been obtained by witnesses, neither of whom worked

for the petitioners’ group; and (vii) given the lack of explanation on why the method of

reporting differed from that carried out by others, it was not accepted that there was any

likelihood that the data would be misunderstood in such a way as to cause financial harm or

damage to the petitioners.

[14] In relation to the Siemens’ comparison, the respondent said:

“Does the applicant mean that the Inquiry is not giving the Application the same

consideration, if the Inquiry reaches a different conclusion from applications by

others? The success, or otherwise, of other applications cannot be the test… Each

application is determined objectively on its own merits and having regard to the

particular circumstances of each case.”

Apart from the redaction of the names of certain individuals, the application was refused.

Opinion of the Lord Ordinary

[15] The Lord Ordinary was aware that, if he held that no prima facie case had been made

out and publication followed, refusal of the interim orders would effectively determine the

petition. Nevertheless, he concluded that no prima facie case had been demonstrated. It

could not be said that the decision was one that no inquiry could reasonably have reached

on the basis of the material presented. The respondent had to be satisfied that the

information was commercially sensitive. It was not obvious that either the substantive

content of the reports or the manner of its presentation was commercially sensitive. No

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adequate explanation had been given of why or to whom the information was commercially

sensitive or of the type of harm or damage that might be suffered following publication.

The application:

“was at a high level of generality with little or no specification, and no examples, of

either the commercial sensitivity of the material or the anticipated harm… It did no

more than assert without explanation that the material in the reports and their

methodology were commercially sensitive.”

There was no description of the material or its internal uses, or an explanation of how

publication might benefit the petitioners’ competitors. There were inconsistencies in the

petitioners’ position: on the one hand, disclosure was said to enable competitors accurately

to estimate their rates and profit margins; on the other hand, it was said that damage would

be caused because the information was insufficient to enable accurate estimates to be made.

[16] The Lord Ordinary had some sympathy with the argument that the respondent had

rejected the application on the basis that the information was already available to

individuals no longer employed by the petitioners’ group. If the information or

methodology were commercially sensitive, then it was likely to be subject to legal or

contractual protection. This issue was not, however, central to the decision, which was

“based primarily upon the [petitioners’] failure to satisfy [the respondent] that the

information was commercially sensitive”. The statements of witnesses had not contained

anything additional to the application. The petitioners had failed to overcome the statutory

presumption in favour of publication.

[17] The petitioners had acknowledged that, although a restriction order had been made

in relation to Siemens, they were unaware of the underlying material. They nevertheless

maintained that the two core participants were in the same position. The petitioners’

averment that there was no justification for unequal treatment was “no more than an

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unsubstantiated assertion”. The same applied to the petitioners’ related submission, that

their contention that the two applications related to the same matters, was something which

raised an issue of disputed fact that could not be resolved at a hearing on interim orders.

The respondent’s duty had been to address each application on its merits. No factual basis

had been pled for “the proposition that that necessitated reaching the same decision in

relation to both applications”.

[18] The petitioners’ argument founded upon Article 1 of Protocol 1 to the European

Convention did not add anything. The court was required to go beyond the domestic rules

of judicial review when considering proportionality and to make its own value judgment by

reference to the circumstances prevailing at the material time (R (SB) v Governors of Denbigh

High School [2007] 1 AC 100). However, it could not be said that publication would

constitute a disproportionate interference with the petitioners’ enjoyment of their

possessions, when they had failed to discharge the onus of establishing that commercial

sensitivity arose at all.

[19] Had the balance of convenience arisen, the Lord Ordinary would have granted the

interim orders. It was difficult to see how publication could cause loss and damage, having

regard to the terms of the petitioners’ published report in 2016 that “the group” had stepped

out of the construction and civil engineering business and that the petitioners would not be

seeking to acquire any new projects. However, while the risk of harm or damage to the

petitioners might be remote, on the hypothesis that a prima facie case of commercial

sensitivity had been made out, the Lord Ordinary was not prepared to assume that

publication could not cause harm or damage to the group. Any such harm or damage

would be irreversible and not amenable to compensation. It was not submitted that any

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particular prejudice would result from delaying publication pending the outcome of the

proceedings.

Submissions

Petitioners

[20] The petitioners advanced three grounds of appeal, viz. that the decision was:

(1) contrary to the statutory duty of fairness (2005 Act, s 17(3)); (2) a violation of the

petitioners’ A1P1 rights; and (3) was irrational, failed to take proper account of relevant

material, and took account of considerations for which there was no evidential basis.

Fairness (ground 1)

[21] The petitioners’ application ought to have been given “fair and equal treatment

comparable to that given to a substantively similar application …, which had previously

been granted ...”. The Lord Ordinary’s decision was based on a misunderstanding that the

petitioners’ contentions in relation to the Siemens application were unsubstantiated

assertions. The petitioners had seen the Siemens application and the relative decision, but

had been unable to lodge the documents due to their confidential nature. The recovery of

those documents was sought in the petition proceedings. The petitioners’ averments that

the Siemens application concerned the same type of internal financial information and the

same risk of harm ought to have been taken pro veritate. The respondent had concluded that

the information was commercially sensitive in Siemens’ case but not in the petitioners’

application. The applications were sufficiently similar that they ought to have been

determined in the same way.

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[22] The fairness of decisions in a public inquiry was ultimately to be determined by the

court; whether at common law (R (on the application of A & Ors) v Lord Saville of Newdigate

[2000] 1 WLR 1855, at para 38) or in terms of the statutory duty (R (on the application of

Associated Newspapers Ltd) v Leveson [2012] EWHC 57 (Admin), at para 47). The Lord

Ordinary erred in holding that the petitioners did not have a reasonably arguable case in

this regard.

A1P1 (ground 2)

[23] It was not disputed that commercially sensitive information was a possession for the

purposes of A1P1. Compatibility with the A1P1 right was a matter for the court to assess. It

was not to be answered by asking whether the respondent’s conclusion had been

reasonable. The court had to assess the balance which the decision-maker had struck; not

merely whether the decision was within a range of reasonable decisions. The

proportionality test went further than that in traditional grounds of review. Consideration

had to be given to the relative weight to be afforded to competing interests and

considerations. Even a “heightened scrutiny” test may not be sufficient to protect

Convention rights (R (on the application of Daly) v Secretary of State for the Home Department

[2001] 2 AC 532, at para 27; R (on the application of SB) v Governors of Denbigh High School

[2007] 1 AC 100, at para 30). The decision amounted to a disproportionate and unlawful

interference with the petitioners’ possessions. Such deprivation of a possession, without

compensation, could only be justified in exceptional circumstances (Lithgow v United

Kingdom (1986) 8 EHRR 329, para 120; James v United Kingdom (1986) 8 EHRR 123, para 54).

[24] The petitioners ought to be afforded the opportunity to argue their case at a

substantive hearing on the basis of the material that may be available at that stage. It was

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sufficient that the petitioners had set out, by way of averment and submission, the basis

upon which it was said that the information is confidential.

Rationality (ground 3)

[25] The inquiry had failed to take express account of the evidence contained in the

statement of the petitioners’ witnesses, which was attached to the application. This failure

to provide specific reasons for rejecting this evidence was sufficient to demonstrate that the

decision was prima facie irrational. The Lord Ordinary accepted that the inquiry had taken

account of an irrelevant consideration, namely that the information at issue was not within

the petitioners’ control. There was no evidential basis for such a finding. The Lord

Ordinary had erred in considering that this was not a central aspect of the respondent’s

decision.

Cross-appeal

[26] The prima facie case was not an inherently weak one. Delay was not a strong factor to

the contrary and, in any event, was not of the petitioners’ making. The petition had been

lodged on 26 April 2018. The Lord Ordinary’s opinion had been issued on 8 May 2018. If

the petitioners were successful, the merits of the petition could be determined in a similarly

expeditious manner. In the meantime, the status quo ought to be preserved.

[27] It had not been suggested to the Lord Ordinary that the grant of interim orders

would delay the inquiry or that any particular prejudice would result from delaying

publication. It was no answer to say that vindication of the petitioners’ rights should be

denied because of any delay. It was not in the public interest for a core participant to be

treated unfairly or deprived of its possessions (R (on the application of Associated Newspapers)

v Leveson (supra), at para 53). Publication was an irreversible step; if allowed, confidentiality

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would be lost forever. Any damage consequent thereon would not be amenable to

compensation. New material had been produced, which set out the most recent examples of

construction work in which the petitioners’ group were involved. This listed some eight

appointments or contract awards between April 2017 and May 2018.

[28] The petitioners’ profit margins were shown in the reports. That information had not

changed. A competitor could calculate how the petitioners derived their preliminary,

general and administrative costs and use this information either to undercut their tenders or

to negotiate a price. A sub-contractor might be able to work out how the petitioners

calculated contingencies. The cost reconciliation sheet had been specially developed and the

formulae were disclosed only to the petitioners’ accountants. If a sub-contractor or client

could work out the formulae from the data, it would be very damaging. The same could be

said for future clients, if they were made aware of how the company costed jobs. It could

encourage them to look for a discount on the anticipated profit; the calculation of which

remained the same today.

Respondent

Fairness (ground 1)

[29] The content and disposal of the Siemens application had no bearing on the issue. No

details of the Siemens application had been put before the respondent or the Lord Ordinary,

despite it having been seen by the petitioners. The respondent had to treat each application

on its own merits. The commercial sensitivity of entries, and the risk of harm or damage,

were they to be published, depended on the particular documents forming the subject

matter of the application and the commercial context in which the applicant operated.

Although there could be a situation in which there was such similarity that it would be of

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assistance for the later applicant to refer to the earlier application, it was for the petitioners

to explain why the earlier decision had a bearing on the later one. They had failed to do so.

The petitioners had made explicit reference to Siemens in their application and had only

asked to be “afforded the same consideration”. That did not articulate why the Siemens

application would be of assistance. The petitioners were afforded the same consideration.

Their application was determined on its own merits.

[30] In describing the petitioners’ averments as “unsubstantiated assertion”, the Lord

Ordinary meant that no sufficient basis in fact had been identified. The unsubstantiated

assertion was that of unequal treatment of the petitioners and Siemens. It was not a sound

criticism of the Lord Ordinary’s reasoning that he did not treat the petitioners’ averments

pro veritate. The Lord Ordinary’s decision was not inconsistent with the facts averred by the

petitioners. He had been entitled to assume that the averments and submissions adequately

reflected whatever material was available to the petitioners. Any error as to the basis for

those averments and submissions was immaterial.

A1P1 (ground 2)

[31] This ground added nothing. It was predicated on the entries being confidential.

Since the petitioners had failed to establish that, or that disclosure would present a risk of

harm or damage, there could be no prima facie case that A1P1 was engaged. The statutory

regime recognised the need for a balance between publicity and the interests of proprietors

of confidential information. The discretion to strike the requisite balance was conferred on

the respondent and was therefore “according to law”. It had not been necessary for the

respondent to strike the balance. Whilst the court was entitled to reach its own conclusion,

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it was confined to reviewing the respondent’s decision on the basis of the material that had

been made available to it.

Rationality (ground 3)

[32] Although the decision did not refer expressly to the statement of the petitioners’

witnesses, it was taken into account. The statement contained nothing that was not already

in the application. It was not necessary to reject the contents of the statement or to give

reasons for doing so. The contents of the application, even when taken with the statements,

were insufficient. The failure to make an explicit reference to the statement was immaterial.

The observation about the petitioners’ control of the information, even if wrong, was

immaterial. It was entirely reasonable to expect that individuals, who were party to the

information, might no longer be employed in the petitioners’ group. There was no

evidential basis for the proposition that the material in question was likely to be subject to

legal or contractual protection.

Cross-appeal

[33] The Lord Ordinary erred in holding that the balance of convenience would have

favoured the grant of interim orders. He had failed to take account of two factors. First, he

ought to have taken into account the weakness of the petitioners’ case (cf Boehringer

Ingelheim Pharma v Munro Wholesale Medical Supplies 2004 SC 468 at para [16]). Secondly, the

grant of interim orders would delay the proceedings of a public body acting in the public

interest (Fergusson-Buchanan v Dunbartonshire County Council 1924 SC 42, at 50). Contrary to

the Lord Ordinary’s Opinion, the respondent had made submissions based on the delay

which would result if publication were prohibited. The inquiry would be held up pending a

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decision on whether the reports could be shown to, and made the subject of possible further

submissions by, the parties.

[34] The Lord Ordinary erred in his assessment of the extent to which the petitioners and

their group remained active in the construction and engineering business. It was apparent

from their 2016 annual accounts that “the group had stepped out of the construction and

civil engineering business”. The Lord Ordinary erred in giving weight to the possibility of

harm to the wider group. The group has ceased involvement in civil engineering.

Decision

Fairness

[35] The court is concerned to determine the legality of the respondent’s decision rather

than to explore its merits. Subject to rationality, the respondent was entitled to determine,

as a matter of fact and on the material provided to it, that the petitioners had failed to

demonstrate that the material in the reports was “commercially sensitive information” in

terms of section 19 of the Inquires Act 2005. The petitioners’ contention in this process is

that it could not do so because, it is said, the Siemens’ application was on “substantively the

same basis” as that of the petitioners. There are two major problems with this contention.

First, it is not one which was presented to the respondent. The petitioners mentioned the

Siemens’ application and asked that their own be “afforded the same consideration”. They

did not advance the proposition, which they now do, that the respondent was bound to

grant the petitioners’ application simply because of its comparative similarity to the

Siemens’ case. Had this been advanced, the respondent would no doubt have addressed

that issue and provided reasons for differentiating between the two. As matters stand, the

court does not have the respondent’s reasoning on this point because it was not advanced at

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the time. In these circumstances, it is not possible to conclude that the respondent failed in

its duty of fairness because different decisions were reached in respect of two different

applications.

[36] Secondly, as noted above, the petitioners’ averments about the content of the

Siemens’ application are extremely coy. They are of the most general type and refer to the

petitioners’ understanding or awareness of the Siemens’ case, rather than its factual content.

This is so notwithstanding the fact that they (as distinct from the court) have seen that

application and must have been in a position to aver its terms and thus to conduct some

kind of comparative analysis. The petitioners are correct to submit that, as a generality, at

the stage of asking for interim orders, the court will often proceed on the basis that the

petitioners’ averments are true. They may, in the absence of contradictory material, have to

be read pro veritate. However, mere relevancy is not the test. The averments have to be

sufficiently specific and weighty to engage a prima facie case; here that the Siemens’ material

was of an identical, or very similar, nature and that its commercial sensitivity arose in

similar circumstances. The petitioners have not set out such a case. Their averments are

vague. Their submissions did not advance matters; references being made to the Siemens’

application involving “commercially sensitive pricing information” or similar phrases.

Although Siemens were part of the same consortium, they were engaged on a different part

of the works. They may still be engaged in very similar works elsewhere. They may have

been able to persuade the respondent that there was a clear danger of loss and damage, if

the information were released to the public. There may, in short, be a myriad of reasons for

treating the two applications differently. For these reasons, the first ground of appeal fails.

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A1P1

[37] The A1P1 argument cannot succeed in the absence of the petitioners setting out a

prima facie case that the information is commercially confidential. They require to do so

against a background of the information being about ten years old, at least, and in

circumstances in which the petitioners’ annual group accounts indicate that they have

withdrawn from civil engineering projects of the type under consideration. Furthermore,

the testimony given to the respondent by MR (supra) was that the information provided in

the reports to Mannheim was “basically the same” as had been sent to TIE.

[38] Again, the petitioners plead that the court must take what they have averred pro

veritate at this interim stage. That is, once more, subject to the qualification that the

information being provided to the court must be sufficiently specific for the court to hold

that the respondent’s conclusion, that the information was not demonstrably commercially

sensitive, amounted to an error of law; applying the standard tests for judicial review on this

particular point (cf proportionality). The court has considered the terms of the application.

Having done so, and subject to considerations of rationality (infra), it agrees with the Lord

Ordinary that there is no such error disclosed in the respondent’s reasoning. Indeed the

Lord Ordinary reached the same conclusion having reviewed the material.

Rationality

[39] The decision taken by the respondent was an incidental, although no doubt

important, one taken in the wider context of a public inquiry. The respondent has provided

a written note of the reason for the refusal of the petitioners’ application. In general terms,

the reason was because the application lacked the degree of specification required to

persuade the respondent of its merit. The respondent illustrated this under reference to

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seven matters. There was no requirement for the respondent to state specifically that it

rejected the content of the supporting witnesses’ statements. The statement no doubt

justified the averments made, but, as the Lord Ordinary also found, there was nothing

substantial in the statement that was not already in the statements of fact in the petition.

The court will normally assume that a decision maker has taken account of the material put

before him in the absence of material to suggest otherwise. The failure to make an express

reference to something which is designed to support the principal averments does not fall

into that category. It is relatively apparent that, in reaching its decision, the respondent had

in mind what was averred and hence what the petitioners’ witnesses were saying.

[40] The Lord Ordinary had some sympathy for the view that the respondent’s reference,

to the information being available to individuals who were no longer employed by the

petitioners’ group, was an irrelevant consideration given that such employees would be the

subject of contractual restraints. He held, however, that it was not a material one. Whilst

the court agrees with that reasoning, in fact the respondent was correct in its view that the

information would be available to those no longer employed by the petitioners’ group, since

the witness himself fell into that category. It is not an unreasonable assumption that there

will be many former group employees, who will have been involved in many projects

involving similar information and reports, who have moved on to work for other concerns.

Whatever the contractual restraints, historical information on the petitioners’ working

estimates and margins of the type under consideration would be likely to be held by many

working elsewhere in the civil engineering field. For all of these reasons the rationality

challenge fails.

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Cross Appeal

[41] The Lord Ordinary states that it was not submitted that any particular prejudice

would result to the respondent from delaying publication of the material pending the

conclusion of the petition proceedings. This may seem somewhat surprising, and it was

contrary to the respondent’s submissions. Although the respondent’s decision to publish, at

least on the Haymarket site, was made on the eve of the date for closing submissions, if the

reports are of importance, the possibility that they, if disclosed to the core participants,

could be made the subject of further submissions must remain. If they are at all significant

to the terms of reference, which the respondent has held to be the case, it is difficult to see

how the inquiry can proceed at all pending a resolution of the issues raised in the petition.

Nevertheless, the Lord Ordinary did not consider that any such delay would override the

other considerations to be taken into account in determining the balance of convenience.

[42] If a prima facie case had been made out, that would have presupposed that the

reports did contain commercially sensitive information, the disclosure of which could cause

the petitioners irreparable loss and damage. Compensation would not be recoverable from

the respondent, since immunity from suit was statutorily conferred. This was, and is, an

important consideration which, the Lord Ordinary was entitled to hold, tipped the balance

in favour of granting the interim orders. In so determining, there is no indication that the

Lord Ordinary failed to take into account the weakness of the petitioners’ case. He made a

specific reference to one aspect of that weakness when referring to the entry in the

petitioners’ annual report regarding their continuing interest in civil engineering projects.

[43] The determination of where the balance of convenience lies is a matter primarily for

the discretionary judgment of the court of first instance having regard to all the

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circumstances. The court would normally only interfere with the exercise of that discretion

on one or more of the conventional grounds for doing so. None appear to exist in this case.

Conclusion

[44] The court will refuse the reclaiming motion and the cross-appeal and adhere to the

interlocutor of the Lord Ordinary dated 8 May 2018.