Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark

In a procurement challenge, early specific disclosure is subject to a low but real threshold. The court should examine the pleaded case for relevance, recognise the tenderer’s informational disadvantage, and require a focused and proportionate request that respects confidentiality and avoids a fishing exercise. A prima facie case is generally relevant to early disclosure, but it is not an automatic requirement where the application is made after pleadings and shortly before standard disclosure. In that setting, relevant documents may be ordered promptly where they are readily available, confidentiality is addressed and early disclosure promotes case management. A generalised plea of unequal treatment can make comparative evaluation records relevant where the pleading alleges undisclosed criteria and anticipates further particularisation.

Prime Way Care Ltd challenged Southwark’s procurement for a multi-lot framework agreement for adult home care services under the Procurement Act 2023. It had scored 3 rather than the required minimum score of 4 on a workforce-management question and alleged undisclosed evaluation criteria, post-hoc justification and unequal treatment.

Prime Way sought evaluation records for bidders scoring 4 or more. By the hearing, the request had been narrowed to five successful bidders, with anonymisation and disclosure into a lawyers-only confidentiality ring. The central issue was whether those records were relevant to the pleaded case and should be disclosed before standard disclosure, having regard to any prima facie-case requirement, proportionality and confidentiality.

The application was granted. Southwark was ordered to disclose, within the agreed lawyers-only confidentiality ring, the relevant evaluation material for the five anonymised bidders who had scored 4 or more on Q22(ii).

1. Applicable framework. CPR 31.12 provided the procedural power to order specific disclosure. The guidance in Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) established a low but real threshold for early procurement disclosure. The court should recognise the challenger’s informational disadvantage, examine the pleaded case for relevance, require a focused request, and balance disclosure against proportionality, confidentiality, cost and the risk of a fishing exercise. Ordinary standard disclosure is different: relevance to the pleaded issues and a reasonable and proportionate search are ordinarily sufficient.
2. Pleading. The Particulars of Claim alleged undisclosed shadow benchmarks and a violation of equal treatment. Those allegations could found both an undisclosed-criteria claim and an unequal-treatment claim. The reservation to provide further particulars after disclosure supported reading the pleading as an existing, generalised plea of unequal treatment. The comparative evaluation records were therefore relevant.
3. Prima facie case. Because the application was made after pleadings and shortly before standard disclosure, the judge was hesitant to impose the additional prima facie-case hurdle associated with genuinely early disclosure. If that hurdle remained necessary, it was satisfied. The court was not conducting a summary-judgment assessment. It considered the claimant’s side of the case and asked whether it was coherent, grounded in honest belief, contained the necessary elements of a cause of action and warranted an answer. The court could consider the case as a whole and general concerns about the procurement process. The expanded post-hoc reasons and apparent differences between typed and handwritten moderation records provided such concerns, although the process appeared less seriously defective than in Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) and Geodesign Barriers Ltd v The Environment Agency [2015] EWHC 1121 (TCC).
4. Proportionality. The request was narrow, concerned readily available spreadsheets, had been reduced from 33 bidders to five, and could probably be anonymised. The confidentiality ring addressed confidentiality concerns. The request was not a fishing expedition, and uncertainty about probative value did not outweigh its relevance and the case-management benefit of early disclosure.