The main contractors in the Edinburgh tram project have failed to obtain interim orders in their attempt to overturn a ruling by the chairman of the inquiry into the project that documents alleged to be commercially sensitive should be released in the public interest.

Lord Tyre in the Court of Session refused orders for interim suspension and interim interdict sought by Bilfinger Construction UK Ltd against inquiry chairman Lord Hardie of Blackford QC, a former Court of Session judge, on the basis that the petitioners had failed to show a prima facie case.

Bilfinger had produced documents to the inquiry following a notice issued by the chairman under s 21 of the Inquiries Act 2005 requiring them, but had then made an application under s 19 of the Act requesting a restriction order preventing publication of what was said to be confidential information in the documents. It now sought to challenge the chairman's decision refusing that request and confirming that the documents would be published unredacted on the inquiry's website.

The documents were monthly reports prepared during the project for Bilfinger's group management at its headquarters in Germany. They were said to contain "highly sensitive confidential information" including performance sheets, weighted results with chances and risks, and cost reconciliation and forecast. The sensitive information related to the Bilfinger Group’s pricing strategy, tendering, operating costs, procurement and general commercial strategy, which was highly confidential even within the Bilfinger Group business. Further, the format and structure of the reports was a proprietary tool developed by the Bilfinger Group which itself constituted a trade secret.

It was also contended that the information in question was not relevant to the inquiry's terms of reference; and that another contractor had been granted a restriction order and Bilfinger should receive equivalent treatment.

Lord Hardie had noted the strong public interest in the release of the documents "as contributing to understanding the reasons for the conclusions that the inquiry might reach". He was not satisfied as to commercial sensitivity, as the application was stated in general terms with little specification of the harm or damage that might be suffered, and the information was typical of large construction projects.

Giving his decision, Lord Tyre said he was satisfied that he should refuse the petitioner’s motion on the ground that no prima facie case had been demonstrated. It could not be said that Lord Hardie's decision was irrational or unreasonable at common law: he had addressed the statutory test and the potentially conflicting considerations of the public interest in the publication of documents provided to the inquiry and the public interest in preventing harm or damage caused by disclosure of commercially sensitive information. The onus had been on Bilfinger to satisfy him of the need for a restriction order.

He agreed with Lord Hardie's view as to lack of specification. "Having had the benefit of examining the unredacted version of one of the monthly reports, I find myself at just as much of a loss as the respondent as to why either the substance or the methodology of the report has a continuing commercial sensitivity whose publication would cause damage to the petitioner or to the Bilfinger Group more widely", he stated.

"The assertions in the application of harm or damage are in no better position."

While it was alleged that Lord Hardie had failed to take into account a statement by two Bilfinger officials, it had not contained anything additional to the application itself. The allegation of unequal treatment was unsubstantiated. On a human rights argument based on article 1 of Protocol 1 to the European Convention, "It cannot... be said that publication would constitute a disproportionate interference with the petitioner’s peaceful enjoyment of its possession in circumstances where it failed to discharge the onus of establishing that issues of commercial sensitivity arose at all."

Lord Tyre would have found that the balance of convenience favoured Bilfinger if it had established a prima facie case, but as they had not, he refused interim orders.

Click here to view the opinion.