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Dear Alison

Case Ref: 20200652

Your request for information regarding “...exact and entire amount of money you have spent with Pinsent Mason Piper in relation to the whistleblowing case of Alison McDermott ", was received on 20th February 2020 and is being dealt with under the terms of the Freedom of Information Act 2000.

In some circumstances a fee may be payable and if that is the case, I will let you know the likely charges before proceeding.

Please do not hesitate to contact me with any queries you may have via [email address]

Please remember to quote the reference number above in any future communications.

Regards

Judith Griffin
Information Access Manager
NDA, Herdus House,
Westlakes Science & Technology Park,
Moor Row, CA24 3HU
Tel. no. 01925802077

Please note that I work Tuesday – Thursday from 8:30 – 16:30.

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Dear Alison

In relation to your request "... to obtain the exact and entire amount of money you have spent with Pinsent Mason Piper in relation to the whistleblowing case of Alison McDermott..."

We can confirm that we hold the information requested. You state that " I understand that the local press have asked you for this information before and you have stated you don't have a detailed breakdown." The journalist request you refer to, was a different question to the one you have asked. We could not provide the data broken down in the way they required, however we do hold the data re. your ongoing litigation in a format we can extract. We would not normally release information about individual cases to third parties, e.g. journalists, as that would breach GDPR and DPA 2018. However, under the circumstances and as you are the data subject, on this occasion and we are providing the data requested.

To date the NDA has paid £35,383.30 in fees to Pinsent Masons, in relation to your case.

If you are unhappy with the way your request for information has been handled, you can request the NDA carry out an internal review, in the first instance contact [email address]

If you remain dissatisfied with the handling of your request or complaint you have a right to appeal to the Information Commissioner at:

https://ico.org.uk/

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

Regards

Judith Griffin
Information Access Manager
NDA, Herdus House,
Westlakes Science & Technology Park,
Moor Row, CA24 3HU
Tel. no. 01925802077

Please note that I work Tuesday – Thursday from 8:30 – 16:30.

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Dear Alison

Thank you for your follow-on request, received on 30 March 2020. This has been forwarded onto the relevant officer(s) and will be dealt with under the terms of the Freedom of Information Act 2000.

In some circumstances a fee may be payable and if that is the case, I will let you know the likely charges before proceeding.

Please do not hesitate to contact me with any queries you may have via [email address]

Please remember to quote the reference number above in any future communications.

During the coronavirus (COVID-19) pandemic, NDA will endeavour to answer all Freedom of Information and Environmental Information Regulation requests within statutory time limits. However, there may be delays due to the effects of the pandemic, so please bear with us, we will answer your requests as soon as possible and try to keep you updated.

Kind regards,

Jo

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Dear Ms McDermott

Request for Information - Reference Number:  20200652

The Nuclear Decommissioning Authority (NDA) responded to your original
request in full on 17 March 2020, when you were provided with the total
fee paid to Pinsent Masons in relation to your case. On 30 March 2020 you
submitted a follow-up request, asking for additional information:

“Please could you provide a breakdown of the invoices including the
dates.”

Whilst the NDA does hold the requested information it is withholding it
under the exemption provided by s43(2) of the FoIA, i.e. “…its disclosure
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it)”. In this instance we
consider that the commercial interests of the NDA, Pinsent Masons, or
both, would be prejudiced.

In order for section 43(2), to be engaged, three criteria must be met:

 1. The actual harm which the public authority believes would, or would be
likely to, occur if the withheld information was disclosed has to be
related to the applicable interests within the relevant exemption.

The NDA considers that the withheld information relates to commercial
activities conducted in a competitive environment. Although there is a
strong public interest in openness, this doesn’t necessarily override all
other considerations, such as ensuring companies are able to compete
fairly.

In terms of prejudice to the NDA, release of the information into the
public domain could act as a disincentive to offer competitive prices if
other firms don’t consider that they can compete with such rates. This
lack of genuine competition could lead to the misspending of public funds
or at the very least the NDA not getting value for money for the services
it requires. Such consequences are not in the public interest.

As it is not considered appropriate to speculate on prejudice to third
parties, the NDA contacted Pinsent Masons to obtain their viewpoint on
disclosure. They confirmed that the majority of commercial law firms
operate on an hourly rate model. It is their belief that rival firms, with
relative ease, could reverse engineer their fees for the work to arrive at
a close estimate of the hourly rate the NDA were charged in this instance.
This would negatively impact on their ability to tender for similar work
in the future.

Disclosure would also undoubtedly undermine the NDAs current working
relationship with Pinsent Masons.

 2. The NDA must be able to demonstrate that some causal relationship
exists between the potential disclosure of the information being
withheld and the prejudice which the exemption is designed to protect.
Furthermore, the resultant prejudice which is alleged must be real,
actual or of substance.

The NDA is satisfied that the prejudice being claimed is not trivial or
insignificant and that there is a relevant causal link between the
disclosure of the withheld information and the prejudice to the commercial
interests of both Pinsent Masons and the NDA.

 3. It is necessary to establish whether the level of likelihood of
prejudice being relied upon by the public authority is met – i.e.,
disclosure ‘would be likely’ to result in prejudice or disclosure
‘would’ result in prejudice.

Given the nature of the information and services to which it relates, it
is likely that the same companies compete against each other in similar
tendering exercises.  This increases the risk of prejudice occurring if
the information were to be disclosed. The NDA is satisfied that the
potential chain of events, as detailed above, is so convincing that
prejudice is clearly more likely than not to arise and is not
hypothetical. This would be the case even if prejudice were to occur on
only one occasion. Consequently we are satisfied that disclosure of the
requested information ‘would be likely’ to cause prejudice to the
commercial interests of both parties.

As s43 is a qualified exemption the following public interest test was
carried out:

Reasons for favouring disclosure Reasons for favouring non-disclosure
   

Allow for more informed debate; As Pinsent Masons billed the NDA
frequently it would be possible to
  reverse engineer the information to
obtain their hourly rates. This is
Promote accountability and commercially protected information
transparency for our decisions and in from our supply chain;
our spending of public money;
 
 
The information could be used to
Provide assurance that a proper, undercut them during bids for future
transparent and lawful process has law work, resulting in a loss of
been followed; competitive advantage;

Assist the public to understand and Knowledge of Pinsent Masons rates is
challenge our decisions. not currently in the public domain;

Knowledge of its rates could also
lead to other clients questioning
the costs which they have incurred
for what they may believe to be
similar work;

There is a strong public interest in
protecting the commercial interests
of legal firms such as Pinsent
Masons and in ensuring that a fully
competitive environment for the
future bidding of all legal advice
for the NDA is maintained.

 
Outcome
 

As you may be aware, the FoIA is ‘applicant blind’. We treat all
requesters equally and only disclose information under the Act if we would
disclose it to anyone else who asked. The NDA must therefore consider the
effect of making the information public, not the effect of giving it to a
particular requester. ICO guidance on this matter states that “The
requester’s private interests are not in themselves the same as the public
interest, and what may serve those private interests does not necessarily
service a wider public interest. Private interests are irrelevant to the
public interest.” 

The NDA maintains that the public interest has already been covered by the
disclosure of the total amount paid to Pinsent Masons for the work (see
email dated 17 March 2020). The NDA does not consider that the breakdown
of invoices would further the public interest in any way.

Given the very specific nature of the costs in question and the piece of
work to which it relates, the NDA therefore considers that the public
interest in engaging the S43 exemption outweighs the public interest in
disclosure of the requested information.

“Also can you confirm that these costs include the fees for Counsel which
are sometimes invoiced separately to the fees for the legal firm, in this
case Pinsent Masons? To be clear, is the figure you quoted for all the
legal costs including any Counsel fees, e.g those costs incurred by Ms
Stanley and her Chambers at the pre-trial hearing in Julu 2019 and any
other Counsel related expenditure throughout the entire period of the
ongoign litigation?  If not, please can you provide the details of these
costs two please.”

We can confirm that the total amount paid to Pinsent Masons did include
Counsel fees and expenses.

I hope that the above satisfies your enquiry, however if not please
contact the Information Access Manager via [1][email address]. We
will then make an internal review of the decision.

You can also complain to the Information Commissioner at: Information
Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF, Telephone: 0303 123 1113; [2]www.ico.gov.uk

Kind Regards,

[3]NDA_final_logo_Black small

Jo Doran

Information Governance Advisor

NDA

Herdus House

Westlakes Science & Technology Park

Moor Row

CA24 3HU

Tel: 01925 802184

[mobile number]

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