The judgment in this present case deals with disclosure matters with the full trial to follow. The main areas that will be looked at during the full trial are breach of the Concession Contracts Regulations 2016 in respect of the evaluation of bids, and secondly substantial modifications to the relevant commercial agreements post award.
Most interestingly is the accidental disclosure of a substantial amount of legally privileged information.
The legal test of whether Northern & Shell could use the documents in the litigation was whether they had been disclosed because of an “obvious mistake”.
More specifically, the judge had to assess whether it would have been obvious to a “reasonable solicitor” that the documents had been disclosed in error.
In a ruling Mrs Justice Jefford refused permission for documents in several categories to be used in litigation, such as if they had clearly been marked as privileged, or where it should have been obvious that the documents contained privileged legal advice.
However, she gave permission for Northern & Shell to rely in court on several of the documents. These included documents that did “not disclose the content of any legal advice”, or where it was difficult to establish that a lawyer had written the content.
In2 the bargain 