Disclosure’s role

Procurement litigation is, put shortly, a dispute about a decision the losing party cannot fully see. The authority knows why it awarded the contract; the disappointed bidder does not. With a compressed litigation timetable, disclosure is not a procedural afterthought; it is often central to the case.

While the award notice must give the criteria, the scores where practicable, a summary of reasons and “the characteristics and relative advantages of the successful tender” (PCSR 2015, r. 85) the real evidence of how the evaluation was conducted may be less visible to a disappointed party.

A paradox

In Scotland, one cannot recover evidence unless the facts relevant thereto are set out in pleadings. The rationale of this is good, insofar as it prevents “fishing” for irrelevant information. However, in Scottish procurement litigation, there arises a paradox; the disappointed bidder must commit to a fully pleaded case of breach before it has even seen the material which would actually disclose whether any such breach occurred.

Scottish recovery

In England, the unsuccessful tenderer’s predicament is met by early, tightly-focused specific disclosure of the evaluation material; the challenger is in a “uniquely difficult position”. The reasons for a tender’s failure being within the authority’s peculiar knowledge, thus require prompt disclosure of the essential documentation, subject to proportionality and confidentiality (Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), §20 (a).).

In Scotland there is historically a broader right to recovery (McCowan v Wright (1852) 15 D. 229, per Lord Justice Clerk Hope at p. 232, cited by the Lord Ordinary in Roche Diagnostics Ltd v Greater Glasgow Health Board & Or [2024] CSOH 90, §56.) of information, albeit often a procedurally complex exercise. Recovery runs through a “double filter” insofar as the court first tests the application for recovery of evidence against the pleaded facts, and then a commissioner undertakes a further excerption process to determine which disclosed documents fall into the scope of the application.

Then, where confidentiality is asserted, the court must balance the haver’s confidentiality against the need for fair disposal, and where redaction is impossible it may confine inspection to counsel, solicitors and experts.

The interim stage

The more fundamental point is that the uphill struggle results in an asymmetry of information, which not only inconveniences the disappointed bidder, but it also disables the court to an extent. At the interim stage (after service of proceedings has triggered automatic suspension of the authority’s power to contract) the court may be practically unable to assess the merits of the action because of limited disclosure. (Kellogg Brown & Root Ltd v Mayor’s Office for Policing and Crime [2021] EWHC 3321 (TCC), §§33 to 34)

In Amey OW Ltd v North Lanarkshire Council 2025 S.L.T. 918, Lord Sandison stated the court cannot at the interim stage normally determine allegations of manifest error or breach, and absent a knock-out point it will not weigh parties’ relative prospects. (§ 6.)

He held, in the circumstances of that case, absent any real knock out point for the pursuer, a ‘lifting’ motion fell to be determined without assessment of the prospects of success. (§§ 38 to 39.) Perhaps prospects could be more reliably assessed at the interim stage if disclosure were easier to obtain from the outset, possibly strengthened by the developing duty of candour on authorities. A disappointed bidder may be in difficulty at the interim stage – one of the most important moments in procurement litigation - if the merits are excluded from the court’s decision-making due to lack of information.

Privilege

The questions relevant to disclosure are now increasingly about how much and to whom as opposed to the binary question of whether or not. There does remain one factor that is relatively binary, namely legal professional privilege. The Inner House recently reinforced the absolutism of the doctrine of legal professional privilege in Scottish Ministers v Scottish Information Commissioner [2026] CSIH 15: no judge may invoke even the public interest to override it (§ 1.) – a principle which extends to material related to preparation of litigation and in-house and internal litigation materials. (§ 30.)

Scottish Ministers concerned s. 36(1) of the Freedom of Information (Scotland) Act 2002, but it signals where disclosure is sought, the court will treat privilege as near-inviolable.

Waiver

A never to be ignored concept in issues of privilege is waiver – see Roche Diagnostics Ltd v Greater Glasgow Health Board (No.2) [2024] CSOH 90. The authority there lost privilege because it had voluntarily disclosed internal papers summarising its legal advice (§ 31.). The lesson for the future is that an authority, arguing the rectitude of its award is supported by legal advice, may lose the protection of privilege.

Artificial intelligence

A new consideration for the protection of privilege is an increasing reliance on artificial intelligence. AI may exacerbate the risks of waiver identified in Roche. Feeding privileged material into a generative tool may itself destroy the confidentiality on which privilege depends. A cautionary example of the use of artificial intelligence in litigation can be found in a recent immigration decision of the Upper Tribunal, namely UK v Secretary of State for the Home Department UKUT 81 (IAC).

The Upper Tribunal explained, as a general conclusion, that uploading confidential documents into an open source AI tool “is to place this information on the internet in the public domain, and thus to breach client confidentiality and waive legal privilege”. Further such conduct might warrant referral to the regulator with supervisors being obliged to ensure fee-earners understand the dangers of non-specialist AI. (§ 20.)

The observation is guidance in a case about AI-fabricated citations, but read against Roche privilege may be lost because the holder voluntarily places the material outwith its control. Putting a privileged evaluation analysis, or a note of advice on an award decision, through a public AI tool is by parity of reasoning the type of conduct that cost the authority its privilege in Roche — the same loss, reached by a different route. As contracting authorities often hold their most sensitive reasoning in in-house legal advice, avoiding AI risk becomes vital.

The future and a caution

The warning for the future is therefore stark if carefully protected privilege can be forfeited in a keystroke. More generally, the trajectory is now visible - disclosure in Scottish procurement challenges is widening and increasingly becoming a matter of managed release rather than outright refusal. Privilege, however, remains the fixed point. AI may accelerate the whole process but must be handled carefully to protect privilege.

Thus, while AI may significantly streamline the procurement process, it introduces new dangers. Until the court addresses the matter authoritatively, authorities in particular will need to exercise caution with this new technology.

Visit the Axiom Advocates team at the Scottish Construction Summit on 22 October 2026.