Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark
| Court | High Court of Justice, King's Bench Division, Business and Property Courts of England and Wales, Technology and Construction Court |
| Judge | Mr Justice Constable |
| Hearing | 10 July 2026 |
| Judgment | 21 July 2026 |
| Claimant, applicant | Prime Way Care Ltd |
| Defendant, respondent | The Mayor and Burgesses of the London Borough of Southwark |
| Procurement | Multi-lot framework agreement for Adult Home Care Services, challenged under the Procurement Act 2023 |
| Case reference | HT-2026-000072 |
Summary
Southwark ran a two stage procurement for a multi-lot framework for Adult Home Care Services. Prime Way Care Ltd scored 3 on one question where 4 was the minimum, and on 29 January 2026 was told it would not reach the second stage. It asked for the moderation record. Southwark sent further reasons and refused the documents.
Prime Way applied for the evaluation records of the bidders who scored 4 or more on that question. Southwark said the point had never been pleaded and that no prima facie case stood behind it. Prime Way won. The court ordered disclosure of five anonymised bidders into an agreed confidentiality ring, deciding nothing about whether the marking was unlawful.
Background and facts
Question 22(ii) of the Procurement Specific Questionnaire asked about managing the workforce and capped the answer at 500 words, with anything beyond the cap disregarded. Marks ran from 0 to 5, where 4 was a good response and 3 satisfactory. Prime Way was given 3, with feedback that its answer mentioned a charter without specific examples and should have said more about how and where it recruits.
Particulars of claim were served on 17 March 2026 while Prime Way acted in person. They pleaded the section 12(1) duty to treat suppliers equally, alleged undisclosed shadow benchmarks, and reserved the right to amend on unequal treatment once disclosure arrived. Once represented, Prime Way applied on 27 May 2026 for the higher scoring bidders' records. Of 144 bidders, 33 had scored 4 or more, and by the hearing 5 remained in the frame for award.
The issue
Southwark said the pleading attacked the marking of Prime Way's own answer and pleaded no unequal treatment at all, so the documents were irrelevant. It added that there was no prima facie case and that the request came too late.
Prime Way said the asymmetry of knowledge in a procurement challenge is why the bar for early disclosure is low, and that it had pleaded a violation of equal treatment.
The decision
CPR 31.12 governs specific disclosure, and Appendix H to the 2026 TCC Guide tells contracting authorities to hand over the decision making materials at a very early stage, including evaluator instructions, individual and consensus scores and moderation minutes. The governing authority is Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC).
underlying the rationale for the relatively low bar for early specific disclosure in procurement cases is the asymmetric position of the partiesMr Justice Constable, paragraph 26
That there is a low bar, however, does not mean that there is no bar at all.Mr Justice Constable, paragraph 26
The judge accepted the pleading could have been clearer, and that drafting by a litigant in person is no answer to a missing plea. Read as a whole, it advanced a case on the violation of equal treatment in the context of undisclosed criteria. Such criteria can found a claim in their own right and can also found unequal treatment if applied to some bidders and not others.
I therefore conclude that the pleading does include a general plea of unequal treatment sufficient to put in issue a claim to which the documentation sought would be relevant.Mr Justice Constable, paragraph 32
On the prima facie case the judge gave two answers, and marked the first as a hesitation rather than a ruling. That requirement belongs to applications which are genuinely early, and this one was heard shortly before standard disclosure fell due.
But it is difficult to characterise the remaining application as one of particularly 'early' specific disclosure, when the very next step in the proceedings would be to disclose the documents in any event.Mr Justice Constable, paragraph 33
He then decided the point on the alternative footing, and this is the holding that carries the case. If the hurdle did apply, it was met. The test looks at one side of the picture only and asks whether the case warrants an answer. The judge recorded considerable force in Southwark's criticism of the claim. What tipped it was that comments in the typed moderation minutes did not appear in the handwritten notes.
The timing objection failed. Prime Way had raised consistency in its first letter, and the judge held it lay somewhat ill in Southwark's mouth to complain of a late request when it had given no disclosure at all.
There is no question but that the disclosure sought is very narrow, and readily available at little or no cost.Mr Justice Constable, paragraph 38
The order was for the records of the 5 anonymised bidders remaining in the frame, disclosed into the agreed confidentiality ring. The judge decided no issue about the lawfulness of the marking, and his reservation about the prima facie hurdle was expressed for this case rather than as a general rule.
Practical implications
An authority that answers a challenge with prose rather than paper weakens its own position. Southwark wrote at length explaining the score and released nothing behind it, and that refusal defeated its argument that the request had come too late.
A gap between the contemporaneous notes and the typed record is dangerous out of all proportion to its size. The judge thought the claim weak and still ordered disclosure, because comments in the typed minutes were absent from the handwritten notes.
The reasoning on the prima facie hurdle repays attention because it was expressly tentative. The judge did not hold that the requirement has gone. He held it sits awkwardly where standard disclosure is imminent, then found it satisfied anyway.
Practice points
- Answer a scoring challenge with the documents, not with a longer letter. The refusal to give anything, including material on the challenger's own bid, removed Southwark's best procedural answer.
- Reconcile the handwritten moderation notes with the typed minutes before either leaves the building. Any comment appearing only in the typed version invites a finding of reconstruction, whatever the merits of the claim.
- Offer a confidentiality ring early. The narrowness of the class sought and the agreed ring made the order easy to justify on proportionality.
- Narrow the request before the hearing. The application began at 33 bidders and was cut to the 5 still in the frame, which met the objection about the burden on frontline staff.
- Do not treat weakness on the merits as a defence to disclosure. The court can be openly sceptical about a claim and still order production where the class is small, cheap and relevant to a pleaded issue.
- Read a claimant's early correspondence for the widest fair meaning. A reference to consistency in the first letter was held broad enough to cover consistency between bidders.