The main contractors in the Edinburgh tram project have lost an appeal against a ruling that documents they claim to be commercially sensitive should be released in the public interest.

Three judges in the Inner House agreed with Lord Tyre's decision (click here for report) to refuse 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. Its present action challenged the chairman's decision refusing that request and confirming that the documents would be published unredacted on the inquiry's website.

Before the Inner House Bilfinger argued that the Lord Ordinary's decision was: (1) contrary to the statutory duty of fairness (2005 Act, s 17(3)); (2) a violation of the petitioners’ rights under article 1 of Protocol 1 to the Human Rights Convention ("A1P1"); and (3) was irrational, failed to take proper account of relevant material, and took account of considerations for which there was no evidential basis.

Giving the opinion of the court, in which he sat with Lord Menzies and Lord Malcolm, Lord President Carloway said that the fairness argument was based on the fact that another contractor, Siemens, had had an application granted that was on "substantively the same basis". However this position had not been put to the chairman, Bilfinger having asked only that their application be "afforded the same consideration" as Siemens's, and the court therefore did not have the chairman's views on the point. Further, Bilfinger's  averments about the content of the Siemens application were "extremely coy" and "of the most general type", even though (unlike the court) they had seen that application and must have been in a position to conduct some kind of comparative analysis. Their averments were therefore not sufficiently specific and weighty to engage a prima facie case.

The A1P1 argument could not succeed cannot succeed in the absence of the petitioners setting out a prima facie case that the information was commercially confidential. "They require to do so against a background of the information being about 10 years old, at least, and in circumstances in which the petitioners’ annual group accounts indicate that they have withdrawn from civil engineering projects of the type under consideration." No error was disclosed in the chairman's reasoning. The rationality challenge also failed.

The court also upheld the Lord Ordinary's decision on balance of convenience, refusing a cross appeal.

Click here to view the opinion of the court.