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High Court refuses specific disclosure application in music festival procurement dispute


On 20 August 2020 Mrs Justice Jefford DBE, sitting as a vacation judge, refused an application by Live Nation (Music) UK Limited (“Live Nation”) for specific disclosure from AEG Presents Limited (“AEG”), Live Nation’s other application for disclosure pursuant to CPR r. 31.14 having been conceded by AEG.

AEG is the interested party in a substantial procurement challenge brought by Live Nation against a decision of The Royal Parks to award the contract for the Hyde Park Music Festival (historically operated at British Summer Time) to AEG. Mr Jim King, AEG’s witness, referred in his witness statement to the reasons why he had returned to AEG in 2019.

Mr King’s return to AEG is in issue in the claim because Live Nation says that his return was unlawfully communicated to The Royal Parks outside the tender portal and because the communication of the change via the tender portal was an unlawful amendment to AEG’s tender submission.

Live Nation sought disclosure from AEG of a range of materials evidencing the negotiation of his return to AEG including emails, SMSs, diary printouts, meeting notes and dinner receipts. AEG resisted disclosure on the grounds that the material sought was not relevant to any pleaded issue: why Mr King returned to AEG was tangentially relevant (at best) to the pleaded case that his return was a material amendment to the tender.

Mrs Justice Jefford considered that a nuanced approach to the question of necessity under CPR rule 31.17 was appropriate, in the light of AEG's role in the proceedings to date. She noted the role of Mr King in Live Nation's pleaded case in relation to unlawful communications and unlawful material amendment. Ultimately, though, the Judge agreed with AEG and refused the application. The reasons why Mr King wished to return to AEG; the reasons why AEG wished him to return and the terms on which he returned were not sufficiently relevant to the pleaded issues in the case.

The substantive claim will proceed to trial between 5 and 19 October 2020.

Sarah Love appeared on behalf of Live Nation instructed by Fieldfisher.

Tim Johnston appeared on behalf of AEG instructed by CMS Cameron McKenna Nabarro Olswang.