Lime Technology Limited v Liverpool City Council [2025] EWHC 1654 (TCC)

[2025] EWHC 1654 (TCC)Case No HT-2025-000129
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Venue Royal Courts of Justice, Rolls BuildingDate 1 July 2025
London, EC4A 1NL
Before
MR ROGER TER HAAR KCSitting as a Deputy High Court Judge
Between
LIME TECHNOLOGY LIMITEDClaimantLIVERPOOL CITY COUNCILDefendant- and –, LIVERPOOL CITY COUNCIL Defendant for LIME TECHNOLOGY LIMITED Claimant
Joseph Barrett KC (instructed by Freshfields LLP) for Claimant.Jason Coppel KC and Cecilia Ivimy KC (instructed by Mr Patrick Kube, Head of Law (Commercial), Liverpool City Council) for DefendantHearing: 13 June 2025
APPROVED JUDGMENTThis judgment was handed down by the court remotely by circulation to the parties’ representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 1 July 2025 at 2pm.

Mr Roger ter Haar KC:

[1]The application before the Court to which this judgment relates arises out of the Claimant’s application for an Order establishing a Confidentiality Ring (a “CRO”).

Background

[2]The present proceedings challenge a procurement decision made by the Defendant (“LCC”). The Claimant (“Lime”) was an unsuccessful tenderer.[3]Lime is a company that provides services relating to the delivery of “micromobility services” using e-bikes and e-scooters. Lime offers shared electric vehicle services across five cities in the United Kingdom (including 17 separate boroughs across London) and, as such, is an experienced and prominent provider of such services in the UK market. Its case is that the data and information from operating in the cities in which it currently operates were important in informing Lime’s overall pricing submission.[4]LCC issued the tender along with an Invitation to Tender (“ITT”) on 10 January 2025. The ITT was later amended.[5]The ITT required bidders to complete and submit a Pricing Schedule as part of their final tender. The pricing submission that bidders were required to complete as part of the procurement worked as follows: (a) In the Pricing Schedule bidders had to set out (i) their expected mobilisation and exit costs associated with performing the Contract; (ii) their proposed price for various “income items” (such as the fee for unlocking an e-scooter or e-bike and the cost of renting an e-scooter for a week); (iii) their expected overhead cost (including exit costs but not mobilisation costs); and (iv) the income share that would be received by LCC, which could be based on: (i) Profit Share (with bidders having to show what LCC would receive as a percentage of the bidder’s profits); (ii) Revenue Share (with bidders having to show what LCC would receive as a percentage of the bidder’s total revenues); and/or (iii) A Fixed Operator Fee per month (shown as a figure).[6]The ITT, as amended, provided guidance as to how the bidders’ submissions would be evaluated.[7]On 14 February 2025, Lime submitted its final tender response, including its final submission on price.[8]By a letter dated 2 April 2025, LCC informed Lime that it had not been successful and that it was intending to award the Contract to Bolt Operations UK Limited (“Bolt”).[9]Lime commenced these proceedings by the issue of a Claim Form on 25 April 2025 in this Court. It is a claim for breach of obligations under the Concession Contracts Regulations 2016.[10]The claim challenges LCC’s conduct of the tender process.[11]On 30 April 2025, Lime served its Particulars of Claim. In summary, one limb of Lime’s case alleged breach of duties of transparency and equal treatment and of the tender rules in failing to evaluate and reject Bolt’s tender response as abnormally high.[12]On 1 May 2025, Lime applied for specific disclosure of the following categories of documents, amongst others:(1) Any criteria, sub-criteria, information, evidence or standards used by LCC when conducting the evaluation process in respect of Bolt’s tender response;(2) The contemporaneous evaluation documents recording the evaluation and/or verification process conducted by LCC in respect of Bolt’s tender response and LCC’s decision that the Bolt pricing submission should be accepted;(3) Bolt’s pricing submission;(4) The contemporaneous evaluation documents recording the evaluation and/or verification process conducted by LCC in respect of Bolt’s tender response’s compliance with parts of the tender documentation and LCC’s decisions that Bolt complied with the published tender requirements.[13]On 14 May 2025, Lime provided LCC with a draft CRO. This made clear that it was proposed that an “Employee of the Claimant” (i.e. a client representative) should be included within the CRO.[14]LCC’s initial response on 15 May 2025 did not object to the inclusion of a client representative within the CRO. LCC’s position has since changed, and the differences between the Parties in that regard raise the issues which I have to determine (there are also cost issues which I will deal with separately hereafter).

The differences between the Parties

[15]As set out above, Lime proposes that a client representative should be included within the CRO, i.e. should have access to the confidential information which LCC is to disclose.[16]The sensitive information concerns Bolt’s pricing proposals and cost information. There is no doubt that this information is confidential and, with full justification, is regarded by Bolt as being of the highest sensitivity.[17]Lime has identified the client representative that it wishes to include within the CRO. He is Mr Raccagna. (An alternative name has been suggested, but for reasons explained below I do not need to discuss that alternative person.)[18]In a Third Witness Statement, Ms Hardey of Lime says this about Mr. Raccagna:24. Mr Raccagna has been employed by the Claimant since 2019 and has held the position of “Senior Director, Government Affairs – Southern Europe” since 2022. In his role, Mr Raccagna is responsible for overseeing the Claimant’s government relationships in Southern Europe.25. The Claimant’s government relations team is entirely separate from its proposals team, which is responsible for drafting tender submissions. Members of the government relations team (including Mr Raccagna) do not work directly on bids. Rather their only involvement in bid processes is to provide qualitative information to members of the bid team related to the market in which the bid is taking place (including city features and initiatives that a city cares about the most). Mr Raccagna is not therefore directly involved in preparing bids.26. There is almost no overlap between the areas in which Bolt has a micromobility services presence and the regions that Mr Raccagna covers: the only areas of overlap are the cities of Seville, Porto and Lisbon. The public authorities in these 3 areas have not to date taken pricing into account when determining which provider should be awarded public contracts.27. It is therefore not the case that seeing material disclosed into the Confidentiality Ring would “inform [Mr Raccagna’s] approach to the Claimant’s business, to the serious detriment of Bolt”….[19]The draft Order before me includes extensive undertakings to be given by Mr Raccagna. These undertakings include the following: I confirm that I am not presently part of a bid team actively participating in any procurement processes in the United Kingdom relating to the award of concession contracts for the provision of e-scooter and e-bike services that Bolt Operations UK Limited is involved in. I undertake not to actively participate as part of the bid team on future procurement processes in the United Kingdom relating to concession contracts for the provision of e-scooter and e-bike services (including if the tender with reference DN755175, for the provision of e-scooter and e-bike services within Liverpool, is re-tendered), without the consent of Bolt Operations UK Limited, for 12 months after either the date that I cease to have access to such Confidential Information, or the end of the Proceedings (whichever is earlier).[20]In respect of the undertakings, Ms Hardey says: 28. In any event, as the Claimant has previously explained, the proposed undertakings should address any legitimate concerns of Bolt and/or the Defendant as to how the information would be used and/or the risks of it being misused:(a) Mr Raccagna would not be able to actively participate as part of the bid team on future procurement processes in the UK relating to concession contracts for the provision of e-scooter and e-bike services, without the consent of Bolt Operations UK Limited. He would therefore never be in a position where his knowledge of Bolt’s pricing submission in this particular tender could feed into a commercial approach that would harm Bolt’s position.(b) The pricing information that Bolt would disclose into the Confidentiality Ring relates specifically to the prices that Bolt was willing to offer for a specific concession contract for the provision of e-scooter and e-bike services in Liverpool. Each country has its own distinct regulatory arrangements and market dynamics related to on-street bike and scooter services and no evidence has been provided explaining how Liverpool-related pricing information could be relevant to procurements conducted in other countries. Further, as explained above, there would appear to be no relevant overlap between the areas Mr Raccagna covers and other markets in which there is potentially relevant competition between the Claimant and Bolt.[21]Whilst not a party to these proceedings, Bolt has an interest in protecting its commercially sensitive information. I have before me a witness statement from Ms Iva Buric, legal director at Bolt Group. She said this: 12. The Draft Order, as currently drafted, purports a high risk of irreparable commercial harm to Bolt. Bolt is explicitly objecting to the inclusion of Mr Raccagna as a permitted member of the Confidentiality Ring for the reasons set out below.a. As set out in paragraph 7 above, the Claimant is Bolt’s principal competitor in the micromobility market in the UK but also in the rest of the world. Both the Claimant and Bolt are active participants in ongoing and forthcoming competitive tenders across multiple UK jurisdictions. Disclosure of Bolt’s sensitive financial information to a senior director of the Claimant, or any employee of the Claimant that is not a legal adviser, even subject to a confidentiality undertaking, would confer an unfair strategic advantage. This would distort the competitive playing field not only in the context of these proceedings, but in relation to future procurements across the UK and globally.b. Mr Raccagna is a senior executive of the Claimant, likely involved in strategic and commercial decision-making. Even if acting in good faith, there is a clear risk of misuse of confidential information through future commercial decision-making. We are therefore not satisfied that the undertakings proposed would adequately mitigate the risk of inadvertent or subconscious use of confidential information disclosed. Regardless of intentions, there is a clear and persistent risk of inadvertent or subconscious misuse of the confidential information in the Confidentiality Ring.c. In the event that the confidentiality undertaking under the Draft Order is breached, whether inadvertently or otherwise, the damage to Bolt would be detrimental for the following reasons: i. Commercial strategy, once disclosed, cannot be clawed back. ii. It would be practically impossible to establish a causal link between use of Bolt’s confidential information and strategic decisions made by Mr Raccagna or the Claimant after being privy to Bolt’s confidential information. iii. In the event that Mr Raccagna inadvertently breached the confidentiality undertakings and the Claimant used Bolt’s confidential information to its strategic advantage, Bolt would not have a viable remedy. The evidential burden of proving misuse or influence would be prohibitively high, and any injunctive relief or damages would be inadequate to reverse the commercial consequences. 13. Bolt understands that the Court has discretion to limit disclosure where it is necessary to avoid a disproportionate risk of competitive harm. Bolt invites the Court to exclude Alessio Raccagna (and any employee of the Claimant) from the list of Confidentiality Ring members for the aforementioned reasons.[22]I accept that Bolt’s concerns are genuine. Those concerns have to be weighed against Lime’s interest in having a Client Representative within the CRO.[23]LCC does not fully support Bolt’s position. LCC submits that the balance weighs heavily in favour of an external advisers-only confidentiality ring and against the inclusion of a current employee of Lime at the present time.[24]In support of LCC’s position, Mr Coppel KC and Ms Ivimy KC submit:(1) That the TCC Guide at paragraph 41 expressly recognises that there may be cases where a “two-tier” ring will be appropriate, with employee representatives having access to “technical material” but not “pricing information”.(2) The stage of the proceedings is relevant: lawyer only confidentiality rings are not uncommon prior to trial.(3) The information sought to be protected is of a type of a high strategic value.(4) Bolt’s pricing information is not complex and should be capable of being understood by Lime’s lawyers.(5) There is no reason why an external consultant could not be involved rather than Mr Raccagna.[25]LCC’s submissions do not suggest that the proffered undertakings are themselves inappropriate: the challenge is to the involvement at this stage of any client representative, whether it be Mr Raccagna or someone else. It is for this reason that I do not need to consider the alternative to Mr Raccagna suggested shortly before the hearing before me.

The Authorities

[26]I have been referred to a number of authorities.[27]In SRCL Limited v The National Health Service Commissioning Board (also known as NHS England) [2018] EWHC 1985 (TCC), Fraser J. referred to the decision of Hamblen J. in Libyan Investment Authority v Societé Générale SA and others [2015] EWHC 550 (Comm) where at paragraph [34] the learned judge said: 34. The imposition of a confidentiality club and, if so, its terms, generally involves a balancing exercise. Factors relevant to the exercise of the court's discretion are likely to include:(1) The court's assessment of the degree and severity of the identified risk and the threat posed by the inclusion or exclusion of particular individuals within the confidentiality club - see, for example, InterDigital Technology Corporation v Nokia [2008] EWHC 969 at [18] and [19].(2) The inherent desirability of including at least one duly appointed representative of each party within a confidentiality club - see, for example, Warner-Lambert v Glaxo Laboratories [1975] RPC 354 at 359 to 361.(3) The importance of the confidential information to the issues in the case - see Roussel UCLAF v ICI at [54] and IPCom GmbH v HTC Europe [2013] EWHC 52 (Pat) at [20].(4) The nature of the confidential information and whether it needs to be considered by people with access to technical or expert knowledge - see IPCom GmbH v HTC Europe at [18].(5) Practical considerations, such as the degree of disruption that will be caused if only part of a legal team is entitled to review, discuss and act upon the confidential information - see Roussel UCLAF v ICI at [54] and InterDigital Technology Corporation v Nokia at [7].[28]Fraser J. then commented at paragraph [71]: 71. To the factors relevant to the court's discretion at [34] I would add the following: (6) In procurement litigation, the confidential information of other parties (namely the other bidders) will usually be held by the contracting authority. Although it will not invariably be relevant to the claim by the dissatisfied bidder, it will often be relevant. No order for disclosure should be made in respect of such third party confidential information without giving that other third party the right to make representations to the court. (7) As part of considering the balancing exercise necessary, there are a range of options or special measures available to the court which will both preserve the confidentiality of the information, and be consistent with the dissatisfied bidder's rights and the administration of justice. These issues can usually be sensibly resolved by consent. (8) However, if consent is not possible, the court will then rule on any opposed application in this respect, particularly in relation to the identity of personnel who need to see the confidential information and may wish to give evidence in respect of it. It is not a solution to an objection by a contracting authority (or another bidder) to assume that a party's solicitor acting in the litigation should and can be called to give primary evidence of fact in that party's favour.[29]For my present purposes, paragraph [34(2)] of Hamblen J.’s judgment is to be noted.[30]In Anan Kasei Co. Ltd and others v Neo Chemicals & Oxides (Europe) Ltd and another [2020] EWHC 2503 (Pat), Marcus Smith J. said at paragraphs [9] and [10]: 9. Exclusion of a party to the proceedings from a confidentiality ring obviously requires particularly clear and cogent justification. Thus, in TQ Delta v. Zyxel, Henry Carr J stated:
"21. In my judgment, the authorities discussed above establish that it is exceptional to limit access to documents in the case to external eyes only, so that no representative from the party which is subject to the restriction can see and understand those documents. An external eyes tier does not require justification for the restriction by reference to individual documents. It enables one party to decide to exclude all representatives of the opposite party from access to any document that it chooses, and places the onus on the party seeking access to apply to court to obtain it. That approach, in my judgment, is wrong in principle… … 24. An external, eyes only, tier enables a blanket exclusion of access by one of the parties to the relevant parts of key documents. This is incompatible with the right to a fair hearing under Article 6 of the European Convention on Human Rights, and with the principles of natural justice. It is incompatible with the obligations of lawyers to their clients. The principles on which solicitors are obliged to act on behalf of clients instructing them require the sharing of all relevant information of which they are aware." 10. Similarly, Roth J stated in Infederation v. Google: "…In my view, the important points to emerge from the authorities are that: (i) such arrangements [that is, confidentiality rings excluding a client, party to the proceedings] are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness. Any dispute over admission of an individual to the ring must be determined on the particular circumstances of the case."
Later, at paragraph [16], he said: It seems to me that where a party contends that a particular person should be allowed into the confidentiality ring, the court should be slow to second guess that contention. It is, after all, a basic right of every party to conduct litigation as he, she or it sees fit. That does not mean a party can, by bare assertion, dictate the terms of a confidentiality ring: there will always court scrutiny, and the touchstone for that scrutiny is fairness.[31]Mr Coppel KC suggested that this decision is no longer good law, but the Court of Appeal decision to which I now turn is against him on this point.[32]In OnePlus Technology (Shenzhen) Co. Ltd and others v Mitsubishi Electric Corporation and another [2020] EWCA Civ 1562, Floyd L.J. said: 33. TQ Delta concerned a confidentiality regime in a FRAND case. Henry Carr J declined to establish an external eyes only confidentiality regime. At [21], Henry Carr J said:
"In my judgment, the authorities discussed above establish that it is exceptional to limit access to documents in the case to external eyes only, so that no representative from the party which is subject to the restriction can see and understand those documents. An external eyes tier does not require justification for the restriction by reference to individual documents. It enables one party to decide to exclude all representatives of the opposite party from access to any document that it chooses, and places the onus on the party seeking access to apply to court to obtain it. That approach, in my judgment, is wrong in principle." 34. I agree that an external eyes only tier is exceptional. I also agree that it is wrong to place the onus on the receiving party to establish that a document is non-confidential. I do not agree, however, that an approach where prima facie highly confidential documents are first disclosed on an external eyes only basis is wrong in principle. The authorities establish that staged or progressive disclosure of confidential information is permissible. Indeed, later in his judgment, Henry Carr J said this at [23(iv)]: "external eyes only access to individual documents of peripheral relevance, whose disclosure would be damaging, may be justified in specific cases…". 35. It appears that what concerned Henry Carr J was "the exclusion of access by one of the parties to the relevant parts of key documents" (see [24]). I agree that that should not be the result of the establishment of an external eyes only tier. 36. It is worth pondering an alternative approach under which all documents which a party contended should be AEO should be individually examined by the court before they are so designated. Under such an approach the first step would inevitably have to be that some limited form of disclosure be afforded to the opposing party. The court would then have to decide on the basis of submissions and evidence from each side whether the document justified AEO or required more liberal disclosure. There is no difference in substance between that approach, and the approach where the disclosing party can initially designate documents AEO, subject to the receiving party's ability to challenge the designation, provided that the disclosing party does not unfairly seek to take advantage of the opportunity. To the extent that Henry Carr J was outlawing the approach adopted in this case, I respectfully disagree. There was in any event, as I have said, no appeal from Mann J's order. 37. In Infederation Roth J added the observation (see [41]) that confidentiality rings were sometimes established in competition cases to prevent leakage in both directions of confidential information. Sharing of pricing information can of course contravene competition law, and the court ought not to facilitate it by means of the disclosure process unless it is impossible not to do so. His review of the authorities concluded at [42]: "
In my view, the important points to emerge from the authorities are that: (i) such arrangements are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness. Any dispute over admission of an individual to the ring must be determined on the particular circumstances of the case." 38. Anan Kasei was a further case in which a senior executive of the receiving party was admitted to the confidentiality club against suitable undertakings as to misuse. Marcus Smith J took account of the fact that the receiving party was a qualified lawyer. 39. 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: Warner Lambert at page 356; Roussel at page 49. 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 at page 360: Al Rawi 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: Warner Lambert at page 358; Al-Rawi at [64]; IPCom 1 at [31(ii)]. iv) The court must be alert to the fact that restricting disclosure to external eyes only at any stage is exceptional: Roussel at [49]; Infederation at [42]. 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: TQ Delta at [21] and [23]; 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: compare Warner Lambert and IPCom 1; see IPCom 2 at [47]. vii) Difficulties of policing misuse are also relevant: Warner Lambert at 360; Roussel at pages 51-2. viii) The extent to which a party may be expected to contribute to the case based on a document is relevant: Warner Lambert at page 360. ix) The role which the documents will play in the action is also a material consideration: Roussel at page 49; IPCom 1 at [31(ii)]; x) The structure and organisation of the receiving party is a factor which feeds into the way the confidential information has to be handled: IPCom 1 at [33]. 40. To this I would add that the court must be alert to the misuse of the opportunity to designate documents as confidential. It remains the case that parties should not designate such material as AEO, even initially, unless they have satisfied themselves that there are solid grounds for establishing that restricting them in that way is necessary to protect their confidential content.[33]Paragraphs [39(iv)] and [39(v)] are important for the decision which I have to make. I note that a distinction can be drawn between initial disclosure and later stages of the proceedings (paragraphs [39(iii)] and [39(v)]) but I also note the expression “at any stage” in paragraph [39(iv)].[34]Finally, I was referred to the decision of Trower J. in JSC Commercial Bank Privatbank v IGOR Valeryevich Kolomoisky and others [2021] EWHC 1910 (Ch) in which he reviewed the authorities and applied the guidance given by the Court of Appeal in OnePlus Technology.

My Conclusions

[35]As I have said above, I accept that Bolt has legitimate commercial concerns as to the risk of highly sensitive information being leaked and/or misused.[36]However, I also accept that Lime has a legitimate interest in someone from within its organisation having access to the pricing information so as to assess whether the challenge based upon allegedly abnormal pricing in Bolt’s tender has sufficient credibility to justify pursuing the challenge presently before the Court.[37]That assessment and the formulation of any amendments to the pleadings to reflect the disclosed information are not matters which a lawyer can carry out without the benefit of advice from someone experienced in the commercial activity in which Lime and Bolt are engaged: in particular I would regard it as problematic for Lime’s solicitors to make the usual Statement of Truth without informed instructions from either someone within the Lime organisation or an expert witness.[38]These short term considerations suggest to me that the nettle must be grasped now: as is usual in procurement challenges, the disappointed tenderer has limited visibility of what went on in the evaluation of the tenders until initial disclosure has been given. Once initial disclosure has been given the challenger must decide whether to commit time and money to the proceedings (often at considerable inconvenience to the challenged authority and successful tenderer). This needs to be an informed decision: this is explained in the Second Witness Statement of Ms Katharine Gough, Lime’s solicitor. I accept her evidence.[39]Ms Hardey’s Third Witness Statement at paragraphs 11 to 21 explains why leaving matters in the hands of external lawyers would not be a satisfactory course to adopt. I accept her evidence.[40]The authorities which I have cited emphasise that the inclusion of a client representative in a confidentiality ring is the norm, not the exception, and in procurement challenges for the reasons I have just given, needs to occur at an early stage.[41]For these reasons I reject LCC’s position that the Court should allow a staged process.[42]I have considered whether it would be a satisfactory alternative to include an independent expert in the CRO rather than a client representative. It may be that in some cases that would be a satisfactory solution, but I do not regard that as being a satisfactory solution in this case. Firstly, I accept the submissions made on behalf of Lime that it has not identified a suitable and available witness. Secondly, and most importantly, I accept that it is Lime which must make the informed decisions to which I have referred above. I do not regard it as satisfactory for that to be delegated to an independent expert: Lime is entitled to form its own view based upon its own knowledge and experience.[43]For these reasons I accept that Mr Raccagna should be included within the CRO, subject, of course, to giving the proffered undertakings.