On 21 July 2026, the High Court handed down its first judgment addressing the principles in applications for early specific disclosure under the Procurement Act 2023. This judgment in the case of Prime Way Care Limited v Mayor and Burgesses of London Borough of Southwark [2026] EWHC 1845 (TCC) does not significantly change the established position as set out in the case of Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), however it will likely provide encouragement to bidders seeking such disclosure. A key issue will be whether the claimant’s case is sufficiently coherent and substantiated to establish a prima facie case.

This insight considers the position set out in Roche, the significance of this recent judgment and the takeaways for organisations involved in procurement processes.

Roche and principles of early disclosure

In Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), the Court set out the principles around the early disclosure of key decision-making and contemporaneous evaluation documents. These can be summarised as:

a) the claimant should be given the key information and documents to assess the fairness and legality of the evaluation process;

b) disclosure applications must be determined on their individual merits, including whether the claimant has shown a prima facie case;

c) requests for specific disclosure should be specific, targeted and properly focused; and

d) the court must balance the claiming party's need for information against the risk of an application becoming a “fishing expedition”.

The Guidance Note at Appendix H of the Technology and Construction Court Guide also makes clear that contracting authorities should provide the “key decision making materials” at a very early stage in procurement claims.

The background

The case of Prime Way Care Limited v Mayor and Burgesses of London Borough of Southwark arose from a two-stage procurement for a multi-lot framework agreement relating to the provision of Adult Home Care Services (the Procurement). The Procurement was to be conducted in two stages. The first stage involved an Invitation to Participate, where candidates were required to complete a Procurement Specific Questionnaire (PSQ). Only those who successfully passed this first stage were shortlisted and invited to proceed to the second stage of the Procurement.

The claimant – Prime Way – was excluded at the first stage after failing to achieve the minimum required score for question 22(ii) of the PSQ. After being informed of its exclusion, Prime Way sought disclosure of the moderation records relating to that question and any guidance given to the evaluators. It was concerned that the evaluation of tenders had not been conducted on a consistent or equal basis across all participants. The contracting authority refused. Prime Way subsequently commenced proceedings and applied for specific disclosure (after having made a further request for the provision of documents). The application sought:

a) all contemporaneous records of the evaluation of its response to question 22(ii) of the PSQ; and

b) all contemporaneous evaluation records relating to the evaluation of question 22(ii) of the PSQ responses submitted by bidders who achieved a score of 4 or higher.   

By the time of the hearing, request (a) had been resolved, and the Court only had to consider request (b).

Importantly, at the hearing, the contracting authority accepted that the documents sought at (b) would be readily available and amounted to a small amount of material. It was also accepted that the material could be anonymised (it was to be disclosed to lawyers only due to confidentiality provisions having been agreed between the parties).

The judgment

In the judgment, Mr Justice Constable highlighted that previous cases, including Roche, recognise that there is a relatively low bar for early specific disclosure in procurement cases because of the information imbalance between bidders and contracting authorities. It was, however, noted that just because there is a low bar, that does not mean that there is no bar at all. The claimant must still establish a prima facie case before the court will order disclosure.

The Judge addressed the meaning of a “prima facie” case. He explained that establishing whether a prima facie case exists does not demand analysis of competing evidence or an assessment of the prospects of success of the claim. Rather, it merely requires looking at one side of the picture (that of the claimant) and considering whether the case, taken at its highest, is sufficiently arguable to warrant an answer. He stated that this “may amount to little more than assertion grounded in honest belief, which is coherent and constituted of the necessary elements of a cause of action”. He further went on to conclude that while “the facts of this case even at their highest, as they presently appear to be, fall well short of the sort of significant inadequacies within the process identified in [previous cases] taken in the round I consider that the low threshold… of prima facie case is met.”

The Judge also emphasised the importance of proportionality. The Court must guard against ordering disclosure that would impose a disproportionate burden on a contracting authority in terms of time and cost. For that reason, tightly-focused requests for specific categories of documents are more likely to be granted. Applications may also be granted in favour of the claimant where disclosure may bring an early end to the litigation.

In this case, given that the material sought was readily available and limited in size, the Judge considered the application to be proportionate, and the application was granted.

How Capsticks can help

Our Procurement team acts for both contracting authorities and bidders, which means we always advise in the context of understanding both perspectives. Specifically, the team has extensive experience advising across all aspects of public procurement, from structuring a procurement process, options appraisals, implementation and conduct of procurement processes, to defending and bringing procurement challenges for contracting authorities and bidders.

If you are interested in how we may be able to support your organisation in light of this judgment, please contact Senior Associate Catherine Mulroney, Procurement Litigation Partner Tim Dennis or Head of Public Procurement Mary Mundy. This article was co-authored by Associate Mafalda Ribeiro.