In Prime Way Care Limited v Mayor and Burgesses of LB of Southwark [2026] EWHC 1845 (TCC), the High Court (Constable J) has handed down its first judgment on the principles applicable to applications for early specific disclosure of contemporaneous evaluation records in procurement disputes under the Procurement Act 2023 (“the Act”).
The proceedings concerned a dispute regarding the evaluation conducted by the Defendant in respect of the procurement of a framework agreement with a value in excess of £200 million. The Claimant was excluded from further consideration at the first stage of the process, and contended that the process was flawed and unlawful in various respects.
Most relevantly, the Claimant was concerned that the evaluation had not been conducted on a consistent or equal basis as between different bids and sought specific disclosure of the evaluation records relating to the other tender responses. This was resisted by the Defendant who argued that: (i) the Claimant had not pleaded any such complaint, and (ii) the request was a ‘fishing expedition’.
The High Court rejected the Defendant’s arguments and ordered disclosure of the evaluation records related to the other tender responses.
In summary:
(1) The Court rejected arguments by the Defendant that the legislative scheme of the Act indicated that the Court should depart from or modify the principles previously stated by the Court in its Roche Diagnostics case-law.
(2) The Court rejected arguments that the absence of an obligation to provide reasons under the Act required or supported a restrictive approach to specific disclosure.
(3) The Court analysed and explained the concept of a “prima facie case” in this context. The Court’s reasoning and conclusion provides further clarity indicating that this is a low bar in the context of procurement litigation.
Joseph Barrett KC of 11KBW appeared successfully for the Claimant (instructed by Ed Williams of DWF LLP).
A copy of the judgment can be found here.
