Company at centre of tram inquiry loses appeal to keep documents secret

The firm behind the tram inquiry has lost an appeal to keep documents secret.
The firm behind the tram inquiry has lost an appeal to keep documents secret.
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THE company at the centre of the Edinburgh trams inquiry has lost an appeal to have documents it provided to the probe kept secret.

Bilfinger UK had instructed lawyers to return back to the Court of Session in Edinburgh seeking a ruling from appeal judges over a decision made by their colleague Lord Tyre earlier this year.

The firm wanted judges Lord Carloway, Lord Menzies and Lord Malcolm to block moves to publish paperwork saying the information contained was “commercially sensitive” and could help competitors.

Lord Tyre refused to allow the company permission to stop the inquiry publishing the documents which includes monthly reports made during the tram project to the firm’s German HQ.

Lawyers acting for the company argued that Lord Tyre had incorrectly interpreted the law.

READ MORE: Swinney to Edinburgh tram inquiry: ‘I didn’t want Government to get blame’

But in a judgement published on Thursday, the appeal judges ruled that Lord Tyre had acted correctly.

In a ruling written by Lord Carloway, Scotland’s most senior judge, the appeal judges concluded that the documents didn’t contain sensitive information which could damage the business’s interests.

Lord Carloway wrote: “The Lord Ordinary had some sympathy for the view that the respondent’s reference to the information being available to individuals who were no longer employed by the petitioner’s group, was an irrelevant consideration given that such employees would be the subject of contractual restraints.

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“He held, however, that it was not a material one. Whilst the court agrees with that reasoning, in fact the respondent was correct in its view, that the information would be available to those no longer employed by the petitioner’s group.

“It is not an unreasonable assumption that there will be many former group employees who will have been involved in many projects involving similar information and reports, who have moved on to work for other concerns.

“Whatever the contractual restraints, historical information on the petitioner’s working estimates and margins of the type under consideration would likely to be held by many working elsewhere in the civil engineering field.”

The Edinburgh trams project, which caused massive disruption to the capital, was delivered years late and more than £400 million over budget.

The inquiry into what went wrong has run for three years and cost £7 million.

Bilfinger handed over the documents to the inquiry. But it didn’t want the documents to be made public.

The inquiry’s chairman Lord Hardie decided to publish the material because he thought it was in the public interest for it to be made available.

He ruled that Bilfinger hadn’t shown exactly why the information contained within the documents was commercially sensitive.

This prompted Bilfinger to go to the Court of Session. Lord Tyre concluded that the inquiry acted correctly.

The firm then appealed to the Inner House of the Court of Session. But their bid there has also been rejected.

In the judgement published on Thursday, Lord Carloway wrote: “The court will refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated May 8 2018.”