Court allows discovery of tender methodology but dismisses request for client representative in confidentiality ring.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Record Number: 2025/112

High Court Record Number: 2024 882 J.R. Allen J. O’Moore J. McDonald J.

IN THE MATTER OF COUNCIL DIRECTIVE 2014/24/EU

AND IN THE MATTER OF THE EUROPEAN UNION (AWARD OF

PUBLIC AUTHORITY CONTRACTS) REGULATIONS 2016 (S.I. 284 OF

2016)

AND IN THE MATTER OF COUNCIL DIRECTIVE 89/665/EEC AS

AMENDED

AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (PUBLIC

AUTHORITIES CONTRACTS) (REVIEW PROCEDURES) REGULATIONS

2010 (S.I. 130 OF 2010) AS AMENDED

BETWEEN/

KERRIGAN SHEANON NEWMAN UNLIMITED COMPANY

APPLICANT/APPELLANT

-AND-

SUSTAINABLE ENERGY AUTHORITY OF IRELAND

RESPONDENT

-AND-

ABTRAN UNLIMITED COMPANY

NOTICE PARTY

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 2nd day of October, 2025

1. In this appeal, which concerns discovery issues, the appellant (“KSN”) argues that the judgment and order of the trial judge, Twomey J., ([2025] IEHC 65) should be varied in two respects. These are: -

(1) KSN should be granted discovery against the respondent (“SEAI”) in respect of category 6(b) of the schedule to the notice of motion seeking discovery;

and

(2) A named executive of KSN, Mr. Justin Travers, should be a member of the confidentiality ring which will have access to confidential material disclosed to KSN on foot of the discovery process.

This judgment will therefore be structured under the following headings: -

(1) Category 6(b) – paragraphs 2 to 31;

(2) The proposed inclusion of Mr. Travers in the confidentiality ring – paragraphs 32 to 65;

(3) Conclusions – paragraphs 66 to 70.

Category 6(b)

2. In order to understand whether or not the trial judge was correct in refusing this category of discovery, one must first appreciate the nature of the claim made in these proceedings.

3. According to what is described as the amended amended statement of grounds in these public procurement proceedings, KSN is a “construction consulting firm…” which is also “currently an incumbent supplier of managing agent services to [SEAI] in connection with the provisional surveys, building energy ratings, and inspections for domestic and nondomestic properties…”; see paras. 1.2 and 1.4 of the amended amended statement.

4. The contract under which these services were provided by KSN to SEAI was to expire on the 31st July 2025 (following several extensions). To replace the current contract, in July 2023, SEAI advertised a competition for a contract which would involve (according to para.

3.1 of the amended amended statement): “The provision of managing agent services in connection with the provision of surveys, building energy ratings, and inspections for domestic and non-domestic properties. This includes the provision of a range of evaluation, survey, inspection, BER assessment, audit and related quality assurance and technical services to deliver SEAI schemes in accordance with the objectives set out in the tender documents …” It will be immediately obvious that the range of service to be provided under the new contract is strikingly similar to those provided under the old contract by KSN to SEAI. The term of the new contract was to be 36 months, subject to two optional extensions of one year each, at the discretion of SEAI. The estimated value of the contract was €75M (excluding VAT).

5. Ultimately, KSN failed to have the new contract awarded to it. The successful tenderer was the notice party (“Abtran”). The current proceedings have been brought, therefore, seeking (at para. 13.3 of the amended amended statement): - “… In the first instance the set aside of the Decision and the Notification, and insofar as may arise, any contract entered into between the Respondent and the Successful Tenderer.”

Damages are also sought, without prejudice to this primary relief.

6. The bases upon which these reliefs are sought are numerous. These are: -

(a) an alleged error in accepting an abnormally low tender;

(b) an alleged unlawful evaluation on the selection criteria;

(c) an alleged unlawful evaluation of the award criteria;

(d) an alleged failure to provide reasons;

(e) the alleged unlawful evaluation of a non-compliant tender;

(f) allegedly unequal treatment;

(g) an alleged lack of transparency;

(h) a catchall ground relating (inter alia) to the proper reading of the tender documents, and the exclusion of abnormally low tenders.

While the first of these caught the attention of the trial judge, in a way to which I will return, it is the fifth, sixth and seventh of these that are of the greatest relevance to category 6(b).

7. Put simply, KSN pleads that, under the rules of the tender competition, tenderers were obliged to comply with the invitation to submit final tenders (“ISFT”), and that the ISFT “did not permit alternative or improved processes for delivering the Core Services in Final Tenders” – see paragraph 12.28(b) of the statement. It is then pleaded – at paragraph 12.28(f) and (g) of the statement – that: - “(f) [SEAI] accepted and evaluated the [Abtran] tender that comprised an alternative methodology for delivering the Core Services;

(g) Pending further information, including by way of further responses and by way of discovery or disclosure [KSN] cannot know the precise details of the alternative methodology(ies) tendered by [Abtran] but to the extent that the [Abtran] alternative methodology was based on the combination of items outlined in the Pricing Schedule, this was not permitted by the Statement of Requirements and was not provided for in the Pricing Schedule.”

8. At 12.52 of the current version of the statement, KSN pleads: - “The acceptance and assessment of an alternative methodology for the delivery of the services tendered by the Successful Tenderer gives rise to a serious concern on the part of [KSN] that it has been treated unfairly, unequally and impermissibly differently to [Abtran] and/or other tenderers. In this regard, [KSN] will rely, in particular (and without limitation), on the pleas already made above.”

9. Finally, at para. 12.55 of the current version of the statement it is pleaded: - “In particular (and without limitation):

(a) It is clear from the pleas above, and from the Affidavits of Ms. O’Brien on behalf of the Respondent and Mr. Fitzgerald on behalf of the Successful Tenderer that the Successful Tenderer tendered an alternative methodology for delivery of the services which was less labour intensive and which was not in compliance with the terms of the ISFT and the Statement of Requirements;

(b) The onus was on the Respondent to ensure that the criteria and requirements of the ISFT were formulated so as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way as in its assessment to apply the criteria and requirements objectively and uniformly to all tenderers;

(c) Had the Applicant been aware that an alternative methodology for delivery of the services was permitted notwithstanding the requirements of the Statement of Requirements, the Applicant could and would have tendered alternative proposals for the delivery of the services

(d) In particular, the Applicant would have made proposals with regard to combining certain services. The Applicant currently completes combined post- BERs and Inspections on the Warmer Homes Scheme for a percentage of the homes under that Scheme. Given that the ISFT, the Statement of Requirements, and the Pricing Schedule did not provide for combination of services (unlike the Pricing Schedule in the 2019 tender competition which did provide for combinations), the Applicant did not include any proposals with regard to combining services. The Applicant did not provide for such a methodology because it was not permitted by the tender documents

(e) The Respondent’s failure to formulate the criteria and requirements of the ISFT so as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way and to apply the criteria and requirements objectively and uniformly to all tenderers gives rise to a serious concern on the part of the Applicant that the Respondent has failed to act in a transparent manner. In this regard, the Applicant will rely, in particular (and without limitation), on the pleas already made above.

(f) Pending further information, including by way of further responses and by way of discovery or disclosure, the Applicant cannot know the details of the alternative methodology(ies) tendered by the Successful Tenderer and/or the additional ways in which breaches of the applicable laws have occurred. It reserves the right to advance such additional breaches including if necessary by way of filing an amended Statement Required to Ground and Application for Review of the Award of a Public Contract.”

10. In the amended amended statement of opposition (at para. 156) it is pleaded: - “Without prejudice to the generality of the foregoing, it is expressly pleaded that [KSN] has failed to appreciate the extent to which the ISFT allowed flexibility as to the methodologies that could be proposed by tenderers in their final tenders.”

11. The following relevant paragraphs of the statement of opposition read : - “157. Tenderers were permitted to propose inter alia that:

(i) the same person would perform the Survey, Pre-BER Assessment and Post-BER Assessment;

(ii) the same person would perform the Pre-BER Assessment, Post-BER Assessment and Quantity Check;

(iii) a Pre-BER Assessment and a Survey or a Post-BER Assessment and an Inspection would be carried out on the same home visit.

158. Tenderers were further permitted to propose methodologies in respect of the provision of the services which were different from the methodologies by which the services had previously been provided or by which the Applicant proposed to provide the services, provided that those methodologies were not inconsistent with the ISFT.

159. The Successful Tenderer’s tender was not a variant tender.

160. The methodology proposed by the Successful Tenderer in this regard was not required to be proposed as a Value Added Service.

161. SEAI was fully entitled to treat the Successful Tenderer’s tender as a valid tender and has no reason not to.

162. The Successful Tenderer’s tender was compliant with the ISFT including (without limitation) the Pricing Schedule which permitted and provided for a combination of tasks to be carried out by the same people and/or on the same site visit.

163. SEAI properly evaluated the Successful Tenderer’s tender including verifying its compliance with the provisions of the ISFT, including with the requirements of the Statement of Requirements;

164. SEAI did not commit a manifest error in concluding that the Successful Tenderer’s tender complied with the provisions of the ISFT including with the requirements of the Statement of Requirements.”

12. Importantly, at para. 183 of the current version of the statement of opposition it is pleaded that the acceptance and assessment of the methodology for the delivery of these services tendered by Abtran “in no way involved unfair, unequal or impermissible treatment of [Abtran] or any other tenderer nor did it involve [Abtran] being treated differently from any other tenderer.” Paragraph 188 of the current version of the statement of opposition also contains the following significant plea: - “Without prejudice to the generality of the foregoing, the following matters are specifically pleaded:

(i) nothing in the ISFT (including the Statement of Requirements and the Pricing Schedule) precluded the combination of such services and RWIND [a reasonably well-informed and normally diligent] tenderer would have understood same; …

(iii) SEAI did not fail to formulate the criteria and requirements of the ISFT so as to allow all RWIND tenderers to interpret them in the same way and to apply the criteria and requirements objectively and uniformly to all tenderers; …”

13. It is clear that a great deal of the difference between the parties relates to what was, and what was not, permitted by the terms of the ISFT and associated documents. The construction of those documents is, as counsel for SEAI argues, a question of law and that this category of discovery is therefore not required. Before one considers whether or not that argument is well made, one must set out the approach taken by the trial judge to this category. Before I do this, I should set out category 6 (b) which reads as follows: - “The relevant parts of the Abtran tender setting out its methodology for delivering the services the subject of the Contract, its methodology for satisfying the minimum qualifying threshold under Criterion AM1 (Core Services) and R3 (Resourcing Strategy for Field Service Resources) and its proposed methodology for combining the delivery of the services mentioned above”.

14. As submitted by counsel for KSN, the approach of the trial judge appears to have been (at least in part) coloured by a view that the proceedings involve a claim that Abtran’s winning tender “was too competitive”; para. 1 of the judgment. In the same paragraph, the trial judge contrasts a claim grounded on a contention that a winning tender was too competitive with the need to promote a competitive tendering process. It need hardly be observed that, where there is an overriding need to encourage a competitive process and where the winning bid was the most competitive one, the chances of KSN succeeding in such proceedings would be considered poor. I do not agree that KSN’s claim is that Abtran’s winning tender was “too competitive”. It is surprising that the trial judge could have come to the view that this was the claim being made here. The judgment on discovery in this case was delivered on the 6th February 2025. Prior to that, there had been two High Court judgments on abnormally low tenders.

15. The first of these is my judgment delivered on the 13th of February 2024 in Killaree Lighting Services v. Mayo County Council [2024] IEHC 79, in which I emphasised (on several occasions) that the rules against abnormally low pricing were designed to ensure that only genuine tenders were ultimately successful – see, for example paras. 110 and 115 of my judgment.

16. The second judgment is that of Quinn J. delivered on the 1st of March 2024 in White Mountain Quarries v Mayo County Council, [2024] IEHC 259 where a similar approach was taken; see para. 97 where Quinn J refers to the need for a tender to be “sufficiently genuine”.

17. The current motion was heard on the 22nd January 2025. The following day, this Court gave its judgment in the appeal against my judgment in Killaree. In the judgment of Hyland

J. [2025] IECA 7 she held (at para. 57): -

“Moreover, a purposive interpretation of Article 69 [of the Procurement Directive] also points strongly in that direction. The objective of assessing whether a tender is abnormally low is to ensure that the tender is ‘genuine’ within the meaning of the case law…”

Far from being “too competitive”, a tender which fails the requirements with regard to abnormally low pricing is one which, precisely because it may not be “genuine”, should be rejected.

18. Neither do I agree with the general proposition put by the trial judge (at para. 20 of the judgment) with regard to confidentiality. The first sentence of that paragraph reads: - “One of the reasons that it may not be necessary to discover a document, that is relevant, is if that document is confidential.”

19. The trial judge then goes on to refer to the well-known quotation from the judgment of Clarke C.J. in Tobin v. Minister for Defence [2020] 1 I.R. 211 to the effect that confidential documentation should be produced only if it proves “truly necessary for the just resolution of proceedings”. The emphasis was added by the trial judge. I do not think that the observation by Clarke C.J. in Tobin supports the approach by the trial judge with regard to confidentiality. It is not the case that it is not “necessary” to discover a relevant document simply because that document is confidential. On the contrary, what is said in Tobin (and elsewhere) is if a document is truly necessary it must be discovered notwithstanding its confidential nature. Where a document is confidential, the “special scrutiny” described by Collins J. in Ryan v Dengrove [2022] IECA 1551 is required. However, the fact that a document is confidential does not mean that it is not “necessary”.

At paragraphs 54 and following.

20. At paragraph 36 of his judgment, the trial judge set out his conclusion with regard to “the case law relevant to this case”: - “It seems clear to this Court that there is a high bar to cross when it comes to disclosing the pricing structure of a willing tenderer who has competitively won a tender, particularly where the losing tenderer alleges that it was underbid by a tender price that was too low/too competitive. This Court concludes that the case law makes clear that a Court should only disclose this information where it is absolutely necessary to achieve a just resolution of the proceedings.”

21. It should be noted that in the previous paragraph, the trial judge has again set out the mischaracterisation of KSN’s claim in these proceedings, namely that the successful bid was arguably too competitive (against a backdrop of a public policy of seeking to promote competitive tendering) – my emphasis.

22. It is clear, therefore, that in considering the nature of the claim and the nature of the jurisprudence governing his decision, the trial judge considered as a significant factor in his deliberations, a characterisation of KSN’s case which was simply (but seriously) mistaken. It is difficult to believe that this erroneous characterisation of the KSN claim did not feed into the ultimate decision against KSN on this issue.

23. At paragraph 49 of his judgment, the trial judge found against KSN for the following reasons: - “Thus, the fact that Abtran provided for its pricing to be based on a combination of its services during one site visit (with the resulting reduction in pricing) is not in dispute. Accordingly, it is not necessary, in this Court’s view, for Abtran to have to disclose details of how the combination of services impacted on its pricing (sought in category 6). What is in dispute is whether this combination of services, with its downward effect on pricing, is permitted by the terms of the Statement of Requirements, which is a question for the interpretation of the Statement of Requirements and any other documents.”

24. At para. 51, and referring to the need to proceed “carefully and rigorously” in deciding whether or not to disclose “the (pricing) details of a successful tender…”, the court found it was not necessary for the resolution of the dispute between the parties to make an order for discovery in respect of category 6(b). At para. 52, the trial judge returned to this issue by reference to the proposition that the interpretation of the relevant tender documents was a matter for the court. He concluded: - “As is clear from BAM at paragraph 41, there is usually no need for extensive discovery of documentation where a court is being asked to interpret the meaning of words in a contract or statutory provision, as in this case. Hence this is another reason why the disclosure of category 6 is not necessary.”

25. In fact, the reason given at para. 49 for the refusal of this class of discovery is identical to the reason given at para. 51 and again at para. 52: the trial judge had come to the view that the only issue between the parties was the interpretation of the relevant tender documents, and that discovery of this documentation was therefore not required.

26. The arguments made on this issue on behalf of KSN in the appeal are neatly summarised at para. 72 et seq. of its written submissions. It is most convenient if I set them out in full: - “72. First, the pleaded case of KSN was broader than merely alleging that an impermissible combination of services was proposed by Abtran and it was pleaded by KSN that Abtran had impermissibly proposed an alternative methodology, in circumstances where the Statement of Requirements did not permit alternative or improved processes, and instead comprehensively prescribed a methodology to be employed by the successful tenderer (see, amended statement of grounds, paras. 12.28, 12.33, 12.36), which is denied by the SEAI, which pleads that the Statement of Requirements admitted of significant methodological innovation, permitted the combination of services, and that the Abtran tender was not non-compliant (see, amended statement of opposition, paras. 147, 155, 157 to 161, 167).

73. Second, it is submitted that while it is open to KSN, in the absence of information concerning the methodology proposed by Abtran, to make abstract arguments concerning whether innovative methodologies were permitted by the Statement of Requirement, this exercise lacks reality. The question of whether a particular methodology is compatible with the Statement of Requirements could only be properly answered through a comparison of a proposed methodology with the applicable requirements. In this regard it is submitted that the Court should derive considerable comfort regarding the necessity for the discovery of Category 6(b) from the fact that KSN proposes that discovery be made of documents falling into this category within the confines of the Confidentiality Ring, which will ensure that the confidentiality of the methodology disclosed will be preserved.”

27. The written submissions of SEAI on this topic are summarised at para. 75 et seq. of its written submissions. Paragraph 75 of the SEAI written submissions reads: - “First, in this category KSN seeks access to extracts of Abtran’s tender itself. As such this is the most sensitive and confidential of all documents in the context of a procurement competition. In these circumstances, it was appropriate that Twomey

J. consider (as indicated by Clarke C.J. in Word Perfect [2020] paragraph 8.4) how to strike a balance between disclosure of confidential information and a just and fair resolution of the proceedings.”

28. In fact, as already noted, at no stage in his judgment does the trial judge purport to carry out the sort of balancing exercise suggested by Clarke C.J. in Word Perfect [2020] or, indeed, by Collins J. in Ryan v Dengrove. Instead, the trial judge’s rationale in respect of this category of discovery is as described earlier in this judgment.

29. At para. 76 of their written submissions, counsel for the SEAI refer (correctly) to the finding of the trial judge that the issue between the parties relating to this category was “an entirely legal one relating to the interpretation of the tender documents”. While counsel referred to this being the “crucial factor in striking the balance referred to in the paragraph immediately above …” in fact this was not a decisive factor; it was the only factor considered by the trial judge in deciding whether or not to order discovery of category 6(b).

30. Having referred to evidence given by Ms. Marion O’Brien (of the SEAI) and the reason advanced by KSN for seeking this category of discovery, counsel for the SEAI conclude (at para. 80 of the written submission) that the only issue between the parties in respect of the relevant pleadings are legal ones concerning the interpretation of documents. As such, it is argued, discovery is not required.

31. Strikingly, neither in their written nor their oral submissions do counsel for the SEAI engage with the fundamental proposition advanced on behalf of KSN. It is this. One issue defined in the pleadings concerns the methodologies proposed by Abtran, and whether these were permissible under the tender documents. There are also associated (but separate) issues in the pleadings about unequal treatment (having regard to Abtran’s methodologies) and lack of transparency (again by reference to the methodologies proposed by Abtran). It is of course possible for KSN to make what its counsel describe as “abstract arguments” in connection with the actual methodologies proposed by Abtran, but that exercise becomes unreal in the absence of knowledge of the actual methodologies advanced by Abtran in the procurement process. While undoubtedly some of the cost saving methodologies put forward by Abtran are known to KSN, it is not aware of all of them and cannot be aware of all of them unless discovery is made. Without access to the actual alternative methodologies, KSN may be at a significant litigation disadvantage which is something which the discovery process is designed to avoid. It follows that the fair disposal of these proceedings requires that discovery in the terms of category 6(b) is made. It is only if KSN is aware of every change of methodology proposed by Abtran (and accepted by the SEAI) that it will be in a position to argue that these changes in methodology were, in fact, contrary to the provisions of the tender documents and/or constituted unequal treatment. The decision in respect of this category of discovery is one which fell outside the range of reasonable orders which could have been made by the trial judge. For these reasons, I would allow the appeal in respect of category 6(b).

32. I should add that, given the undoubted confidentiality of these documents, this discovery should be accessible only to members of the confidentiality club. This constitutes a satisfactory safeguard, considering the factors set out by Collins J. in Dengrove. Confidential material discovered in respect of other categories are protected by the confidentiality ring arrangements. It can be taken that this is accepted as satisfactory protection by both the SEAI and Abtran, as there is no appeal by either of these parties against these arrangements.

Should Mr. Travers be included in the confidentiality ring?

33. The confidential and commercially sensitive nature of certain documents to be discovered to KSN was acknowledged by a director of that company, Mr. Travers, in an affidavit sworn by him on the 18th December 2024. This affidavit also records (at para. 46) that SEAI had accepted a proposal by KSN “that a data room should be established to permit the digital inspection of the unredacted documents the subject of the confidentiality protocol.” This portion of Mr. Travers’ evidence also recorded that SEAI had agreed to permit KSN to appoint an independent expert to inspect the documents in their non-redacted form.

34. The issue between the parties is whether or not Mr. Travers himself should be part of the confidentiality club and should be in a position to inspect confidential and commercially sensitive documents discovered to KSN as part of the discovery process.

35. The trial judge dealt with this issue in the section of his judgment beginning with para.

58 and concluding at para.70.

36. Referring to para. 8.7 of the judgment of Clarke C.J. in Word Perfect [2020], the trial judge found that: - “… the starting point is that confidentiality rings are ‘ordinarily’ only open to the lawyers.”

This is at para. 64 of his judgment.

37. The trial judge went on to find that the judgment of Clarke C.J. was not authority for “a default rule that a confidentiality ring contains an employee/officer of each party…”; para.

67 of the judgment of Twomey J.

38. On the contrary, the trial judge found that the “default rule” was that confidential documents are ordinarily made available in confidence only to the parties’ lawyers, and found the authority for this proposition the judgment of Clarke C.J. in Word Perfect [2020]. Having found this to be the “default rule”, the trial judge found no reason to include Mr. Travers in the confidentiality ring. At para. 70 of his judgment, he stated: - “In particular, this Court does not accept that there is any particularly specialised feature of the discovered documentation, dealing as it does with BER’s, surveys, inspections et cetera. Furthermore, this Court does not believe that this is such a specialised area that it cannot be explained by Mr. Travers to his lawyers. Moreover, it could not be said to be scientific or technical information, which is referenced by Clarke C.J. as the only exception area in which might justify the extension of the confidentiality ring (but even then, Clarke C.J. did not see it as justifying the extension of the confidentiality ring to one of the parties to the litigation sought by KSN, but rather to an independent expert).”

39. It should be noted that Mr. Travers was prepared to give very specific undertakings with regard to any use by him of the documentation disclosed on discovery and, apart altogether from this, with regard to his participation “in relevant future procurement processes…”; see para. 10 of Mr. Travers’ first affidavit.

40. The submissions (of both parties) on this issue were singularly extensive. Virtually every observation made by the trial judge in connection with the question of Mr. Travers’ admission to the confidentiality club has been picked over with a view towards the levelling of a criticism (by KSN) or towards the supporting of his conclusions (by SEAI). For example, inordinate attention was paid to the comment made by the trial judge (at para. 58)

that: -

“In this regard, uncontroverted submissions were made that there has been no reported instance in this jurisdiction of a court in a public procurement case permitting a representative of an unsuccessful tenderer (as distinct from its lawyers) to be part of a confidentiality ring.”

41. This constituted an entirely separate ground of appeal (headed “Error concerning submissions of the parties” at para. 16 of the notice of appeal); specific written submissions by both parties (at para. 53 of the KSN written submissions, and para. 21 of the SEAI written submissions); and oral submissions on the topic. In fact, the trial judge was absolutely correct in this summary of the position. There was no case referred to by either party, in which a court in this jurisdiction had permitted a representative of an unsuccessful tenderer to be part of a confidentiality ring established in respect of a public procurement case. The fact that parties may have agreed on at least one occasion that the confidentiality club should include such representative is neither here nor there.

42. Whether it is right or wrong, the reasoning adopted by the trial judge is clear. That reason starts with the proposition that the judgment of Clarke C.J. in Word Perfect [2020] is to be interpreted in a certain way. My analysis of this section of the judgment will also begin with that point.

43. Section 8 of the judgment of the then Chief Justice is headed “Discovery in Public Procurement and EU Law.” Clarke C.J., at the very start of this section of his judgment, considers the position of confidential information. At para. 8.3, he says: - “The case law already cited makes clear that Irish discovery law generally provides for a nuanced and flexible approach to cases where confidential information may be relevant and where the disclosure of that information may be necessary to a fair and just resolution of the case.”

44. He then goes on to deal with various principles which can be identified from the case law. At para. 8.6 he observes: - “However, it also seems to me that the general approach which I have identified makes clear that the asserted need of a challenger to obtain information for the purposes of substantiating its claim will not necessarily trump, in all cases, the need to protect confidential information furnished to the awarding authority by its competitors. But likewise, the need to protect such information will not always trump an assertion on the part of the challenger of the relevance and necessity of the disclosure sought. As in all other discovery cases involving confidential information, each case will have to be considered on its own merits and having regard to its own circumstances, with an order being fashioned which minimises the risk of injustice and which ensures a fair and just resolution of the proceedings with a minimum disclosure of confidential information necessary to achieve that end.”

45. In my view, this last paragraph is the essence of the judgment, at least as far as this question of confidential information is concerned. Exactly what is to be disclosed, and the terms on which it is to be disclosed, is to be decided on a case-by-case basis. The former Chief Justice could not have been clearer. The reference to the consideration of “each case… on its own merits and having regard to its own circumstances” suggests that there is no place for a “one size fits all” approach. In particular, it is inconsistent with the somewhat absolutist approach put forward on behalf of KSN to the effect that client representatives must be included in any confidentiality ring other than in most exceptional circumstances.

46. It is after the former Chief Justice has set down this “general approach” that para. 8.7 (much debated at the hearing of the appeal) appears. It reads: - “In that latter context it is also worth noting that some additional comfort may be obtained if confidential materials are made available under a so-called ‘confidentiality ring’. The confidentiality ring allows for limited disclosure of otherwise confidential documentation and information. Where a confidentiality ring is in place, the confidential documents and information in question are ordinarily made available in confidence only to the parties’ legal advisors. In circumstances where the information in question relates to a scientific or technical matter, the confidentiality ring may be expanded to include experts in that field. Where a confidentiality ring is established, it is usually provided for in the order for discovery.”

47. The statement by Clarke C.J. that ordinarily it is only the parties’ legal advisors or (in appropriate circumstances) experts who are included in confidentiality rings is simply a reflection of the fact that (in most cases) the purpose of a confidentiality ring would be undermined if their clients also have access to the documentation available to members of the ring. This does not establish what the trial judge described as a “default position”. It is merely a recognition that, in most cases, setting up a confidentiality ring which includes the parties themselves would be self-defeating.

48. Paragraph 8.7 of the judgment in Word Perfect [2020] appears to have achieved exaggerated significance in the debate between the parties and, consequently, the judgment of the trial judge. The trial judge found that two English cases, subsequently referred to in the judgment, cannot have been accepted by Clarke C.J. as applicable in this jurisdiction because of the findings of the former Chief Justice contained in para. 8.7 of his judgment. It should also be noted that the trial judge (at para. 68) gave four other reasons – apart altogether from para. 8.7 – why he believed that the English authorities were not approved by Clarke C.J.

49. KSN, on the other hand, say that these English authorities were approved by Clarke C.J. As a result, KSN argue that the judgments of Hamblen J. in Libyan Investment Authority v. Societe Generale SA [2015] EWHC 550 and of Fraser J. in SRCL v. National Health Service Commissioning Board [2018] EWHC 1985 should have been applied by Twomey J. in the current case. In particular, KSN argue that the reference in these two judgments as to the desirability of including a representative of each party in any confidentiality club means that the starting point in considering the inclusion is not (as the trial judge found) that Mr. Travers should not be included, but rather that he should be.

50. In this regard, a truly bold submission is made on behalf of KSN with regard to the interpretation of para. 8.7 of Word Perfect [2020]. As is plain from the text of that judgment, Clarke C.J. made the observation (which I have already set out and analysed) that “ordinarily” confidential documents and information are only made available to the parties’ legal advisors. In considering this, the trial judge had noted that Clarke C.J. “makes no reference to [the alleged] default rule extending to employees/officers of a party.” At para.

17 of the written submissions, counsel for KSN make the following argument:- “As regards [this] point, we do not accept that any difference between Clarke C.J.’s summary of the UK authorities he cited with approval, and the legal principles which those authorities actually establish, must be resolved by assuming that Clarke C.J.’s summary was correct in every respect, including in relation to matters, such as the participation of clients in the confidentiality ring, which did not arise in Word Perfect [2020].”

51. It is worth reflecting on this striking proposition. Counsel for KSN submit that the English authorities establish that the default position is that the parties have a representative in the confidentiality club. They say that this is endorsed by Clarke C.J. in his judgment in Word Perfect [2020]. They then try to explain the apparent difference between the proposition for which they contend, and the actual wording used by Clarke C.J. at para. 8.7 of his judgement, by submitting that the former Chief Justice was incorrect in his summary of what the English cases established. Put more bluntly, KSN’s counsel argue that (in approving the English authorities) Clarke C.J. incorrectly summarised what those authorities in fact established.

52. I do not accept this proposition. The very fact that this submission is advanced shows how far the argument concerning the meaning of the judgment of the former Chief Justice has deviated from reality. I find that Clarke C.J. meant what he wrote, and not that he intended to approve the judgments of the courts of England and Wales but could not find the words to do so.

53. The proper interpretation of the judgment is as I began to set out at para. 44 of this judgment. It is true that the two English authorities upon which KSN rely (and which are to be found cited at paras. 8.9 and 8.10 of the judgment of Clarke C.J.) do endorse the desirability of including client representatives in confidentiality rings. To use the language of Hamblen J. in Libyan Investment Authority, there is clearly an “inherent desirability” in having a representative of the client in the confidentiality ring. A failure to have such a representative will obviously lead to complications (to put it mildly) in the obtaining of instructions and the running of a case. However, as is plain from the judgment of Hamblen

J. itself, this is only one consideration in deciding whether or not the confidentiality club is confined to lawyers and/or experts, or goes further afield. In my view, the judgment of Fraser J. in SRCL does not advance matters to any considerable extent beyond the position set out in Libyan Investment Co. The specific issue concerning the court in the portions of SRCL to which we were directed (mainly the calling of a solicitor to give factual evidence) simply does not arise here. For what it is worth, I would agree with Fraser J. in SRCL, that it is “highly unsatisfactory” to have a solicitor give factual evidence of the type involved in that case. It is difficult to see how that could happen here. Any solicitor purporting to give evidence at trial about discovery documentation as proof of the contents of that documentation is unlikely to be permitted to do so by the trial judge. It is more likely that a party would attempt to prove such facts by the delivery of interrogatories. Whether or not interrogatories are employed in these proceedings, it is not the case that a party’s “own solicitor appears to be the only possible witness to give evidence of fact on matters concerning confidential information …” as warned against by Fraser J. at para. 81(2) of his judgment. Instead, the appropriate expert retained by KSN is the individual who would give such evidence, if such evidence was to be tendered at all.

54. KSN also rely upon the judgment of Floyd L.J. in OnePlus Technology (Shenzhen) Co. v. Mitsubishi Electric Corp. [2021] FSR 13 at para. 39 where he says:- “Drawing all this together, I would identify the following non-exhaustive list of points of importance from the authorities:

i) In managing the disclosure of highly confidential information in intellectual property litigation, the court must balance the interests of the receiving party in having the fullest possible access to relevant documents against the interests of the disclosing party, or third parties, in the preservation of their confidential commercial and technical information…

ii) An arrangement under which an officer or employee of the receiving party gains no access at all to documents of importance at trial will be exceptionally rare, if indeed it can happen at all: Warner Lambert (1975) RBC 354 at 360; Al Rawi [2011] UKSC 34 at [64].

iii) There is no universal form of order suitable for use in every case, or even at every stage of the same case …

iv) The court must be alert to the fact that restricting disclosure to external eyes only at any stage is exceptional…

v) If an external eyes-only tier is created for initial disclosure, the court should remember that the onus remains on the disclosing party throughout to justify that designation for the documents so designated…

vi) Different types of information may require different degrees of protection, according to their value and potential for misuse. The protection to be afforded to a secret process may be greater than the protection to be afforded to commercial licences where the potential for misuse is less obvious … vii) Difficulties of policing misuse are also relevant … viii) The extent to which a party may be expected to contribute to the case based on a document is relevant...

ix) The role which the documents will play in the action is also a material consideration…

x) The structure and organisation of the receiving party is a factor which feeds into the way the confidential information has to be handled…”

55. Many of these factors are unremarkable. They are the sort of considerations which one would take into account applying common sense given the competing interests to be reconciled in making the sort of orders contemplated by Clarke C.J. in Word Perfect 2020.

56. Having considered all of the submissions, and taking into account the plain words employed by Clarke C.J. in his judgment in Word Perfect [2020], I do not think that the judgment of the Supreme Court in that case finds that one starts from the position that a client representative should be included in the ring. By the time the parties have agreed, or the court has determined that a confidentiality ring is appropriate in a particular case, the issue becomes one of crafting an order which minimises the risk of injustice and ensures a fair and just resolution of the proceedings, with the lowest disclosure of confidential information necessary to achieve that end; Clarke C.J. in Word Perfect [2020] at para. 8.6.

57. For the sake of completeness, I should note that (in recognising the jurisdiction of the High Court to make discovery subject to the establishment of a confidentiality club) Collins

J. in Ryan v Dengrove (at para. 68) recalled the judgment of Clarke C.J. in A.P. v Minister for Justice and Equality [2019] IESC 47. Collins J. summarised that judgment as finding such a jurisdiction “because the material at issue is effectively expert material, to the assessment of which the client may not be in a position to make any meaningful contribution.” Collins J. went on to say that “The scope for imposing any equivalent restrictions in respect of other categories of discovery material would appear to be more limited.” The jurisdiction to order a confidentiality ring, as described in Word Perfect [2020] (post-dating the judgment in AP), is not so confined. Undoubtedly, whether or not a client can make a meaningful contribution in respect of certain material (or, more pointedly, whether or not a proper understanding of material requires client input) represent factors to be taken into account in assessing the terms of (and participation in) any confidentiality club. It would, however, be a mistake in my view to interpret this portion of the judgment of Collins J. in Ryan v. Dengrove as suggesting that radically different rules apply to documentation which is not “effectively expert material”, but is nonetheless highly confidential and commercially important.

58. I do not believe, therefore, that the judgment of Clarke C.J. requires a court, in considering who is to be in the confidentiality club, to start from any particular proposition. All that it does is to recognise the reality of the situation, namely that in most cases (ordinarily) the confidential material which warrants the establishment of a confidentiality ring would not be made available to an opposing party. Given the comments by Clarke C.J. in Word Perfect [2020], the starting point adopted by the trial judge was not unreasonable.

59. Given that starting point, the trial judge was correct to consider whether there was any “particularly specialised feature of the discovered documentation …” which may require client input. Mr. Travers gave evidence that he has a “unique understanding of the costing elements of the service…”, that “an expert is going to need explanation and input from someone with knowledge of how these activities are performed…” and that “the practical feasibility of achieving certain savings or combining certain methodologies …is not something that any expert would have a knowledge of…” Strikingly, however, there was no evidence from Ms. Joan O’Connor, the expert retained by KSN, to indicate that she needed client inclusion in the confidentiality ring in order to carry out her role. Equally, Ms. O’Connor does not say that she has the slightest difficulty in understanding any of the documentation. Indeed, as counsel for the SEAI submit, it has been possible for KSN to produce a significantly enhanced statement of grounds (the amended amended statement to which I have already referred) with the input of Ms. O’Connor; this does not suggest that the exclusion of Mr. Travers has inhibited KSN in prosecuting this claim

60. Revealingly, in an attempt to show that the involvement of Mr. Travers in the confidentiality club was essential in order to make the documentation comprehensible, counsel for KSN focussed in his oral submission on one particular word employed in the unredacted discovery documents. That word, which was referred to during the hearing as the “italicised word”, may not be one in general usage. However, it was possible for the Court to search the term online over lunch on the day of the hearing of the appeal. This resulted in a number of materially identical definitions from reputable sources, all of which suggested a meaning for the italicised word consistent with its use in the confidential discovery documentation. Counsel for KSN was made aware of this exercise during the course of the afternoon hearing. Despite having the opportunity to do so, it was not gainsaid either by counsel or by any member of the team attending him that the meaning of this purportedly mysterious term (which it had been strongly argued required Mr. Travers’ participation in the confidentiality club in order to explain it to Ms. O’Connor) was in fact available by a simple internet search.

61. Far from any evidence being available to the court to the effect that Ms. O’Connor was unable to understand the discovery documentation without the input of Mr. Travers, the sole example deployed on behalf of KSN (presumably on the basis that it was the best example available) demonstrated forcefully that no such input was required.

62. The trial judge was therefore correct in his conclusion that it had not been shown that there was any aspect to the discovery documentation that required the input of Mr. Travers. There is also no reason to disturb his finding that any technical aspect of the relevant business could not be explained to the lawyers and the expert by Mr. Travers, or any other representative of KSN, without them being part of the confidentiality club.

63. One further relevant factor taken into account by the trial judge was the difficulty in policing any observance by Mr. Travers with the various undertakings provided by him. In this regard, the trial judge referred to the judgment of Costello J. in Goode Concrete v. CRH & Ors. [2020] IECA 56 at para. 148. While much was made on the appeal of the fact that the solicitor for SEAI had (quite appropriately) stated that she had no desire to (and did not) question the sincerity of Mr. Travers in respect of his proposed undertaking, the fact remained (as indicated in the same affidavit by Ms. Crosson, the relevant solicitor for SEAI)

that:-

“… Neither SEAI nor [Abtran] has any transparency in respect of [KSN’s] internal operations. A critical concern is that it would be close to impossible to meaningfully police an undertaking so as to ensure that it is being interpreted and applied appropriately.”

64. The concern expressed by Ms. Crosson is an entirely legitimate one, and indeed is one of the issues identified as a relevant factor to consider in fixing the scope of the confidentiality ring according to the judgment of Floyd L.J. in OnePlus Technology.

65. It is the case that the trial judge did not consider the potential disadvantages that flow from having no client representative in the confidentiality club. However, the difficulties asserted by KSN in this regard are the universal ones which arise whenever such a confidentiality club (without the inclusion of the client) is put in place. There is no feature above and beyond these which suggests that the interests of justice require the participation of a client representative such as Mr. Travers to be included in the ring. On the contrary, and as found by the trial judge, there are a number of powerful factors which suggest that the confidentiality club should not include a client representative from KSN.

Conclusions

66. I would allow the appeal as far as category 6(b) is concerned, and order discovery in terms of that category. The order will require the SEAI to make discovery of:- “The relevant parts of the Abtran tender setting out its methodology for delivering the services the subject of the Contract, its methodology for satisfying the minimum qualifying threshold and Criterium AM 1(Core Services) and R3(Resourcing Strategy for Field Service Resources), and its proposed methodology for combining the delivery of the services mentioned above.”

67. Given the imminence of the trial of the action, the parties were notified before this judgment was delivered that this discovery is to be made on or before 6 pm on the 13 th of October 2025. The appropriate deponent appears to be Ms. Marion O’Brien.

68. I would dismiss the appeal with regard to the inclusion of Mr. Travers in the confidentiality ring.

69. My provisional view is that, each side having succeeded on one of the two issues ventilated in the appeal, the costs of the application in the High Court and of the appeal should be costs in the cause. In the event that any different order with regard to costs is sought by either party, notice is to be given to the Court of Appeal Office on or before 6pm on 13th of October 2025. In the event that any such notice is given, appropriate directions will be given with regard to the making of submissions on the costs issue.

70. Allen and McDonald JJ. agree with this judgment.