Construction industry disputes

The balance of public interest was “very strongly” in favour of maintaining the confidentiality of documents in order to “protect the course of justice” both in Jackson v Info Commissioner, EA 2012/0263, FTT Decision on 19 July 2013, and in “many other such disputes” said Judge Hughes.  The value of the disclosure of the material was limited.  The adverse impact of disclosure on dispute resolution was substantial.  Judge Hughes concluded: “If there were to be change in the arrangements underpinning construction dispute resolution then this should be explored through a careful process of public debate and consultation leading to an amendment of the statutory framework.”

Cambridgeshire County Council (“the Council”) had entered into a major construction contract with BAM Nuttall for the construction of a guided busway extending 16 miles from Huntingdon to Trumpington.  There have been disputes between the parties to the contract over delays and cost-overruns which have attracted public concern.  In July 2011 the Council launched proceedings in the Technology and Construction Court (“the TCC”) against BAM Nuttall.  The proceedings continue.

Dr Jackson submitted an information request to the Council.  The Council responded.  Further, the Council advised that an application to the TCC had been made.  The Council resisted the request relying on Regulations 12(5)(b) and (f) and 13(1) of the Environmental Information Regulations.

Dr Jackson complained to the Information Commissioner.  The Commissioner upheld the Council’s position, relying on Regulation 12(5), adverse effect on the course of justice.

The FTT was satisfied that this exemption was engaged.  There was a substantial dispute between the Council and BAM Nuttall which was before the Court.  It had been preceded by adjudications held within a scheme which provided for confidentiality and where the statutory framework underpinning the scheme recognised the value of confidentiality.  The ability of parties to communicate on a without prejudice basis underlined the point that parties do deal in a candid way within the adjudication process.  The FTT was satisfied on the evidence that in this specific case there would be an adverse effect on the current litigation if there was disclosure.

Moreover, there was a further more general adverse effect that a decision would call into question the effectiveness of the ADR arrangements for construction disputes, which very often involve a public sector purchaser.  The lack of confidentiality of the ADR stages of such disputes would make the resolution harder to achieve and impact adversely on subsequent litigation, and so on the course of justice.