Prime Way Care v Southwark: The first judgment on early disclosure under the Procurement Act 2023

The Technology and Construction Court has delivered its first key judgment considering the principles that apply to applications for early specific disclosure under the Procurement Act 2023 (PA23).

The PA23 came into force on 24 February 2024 and replaced the Public Contract Regulations 2015. It was seen as a significant overhaul of the UK's public procurement regime and there is much anticipation in relation to key decisions, such as Primeway, under the PA23.

The case, Prime Way Care Limited v Mayor and Burgesses of London Borough of Southwark [2026] EWHC 1845 (TCC), does not represent a significant departure from the established principles set out in Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), but it is nevertheless likely to encourage bidders to seek early specific disclosure. Central to any such application will be whether the claimant has advanced a case that is sufficiently coherent to establish a prima facie case.

For bidders, the decision confirms that focused early disclosure applications may succeed where there is a coherent prima facie case; for contracting authorities, it reinforces the need to maintain clear evaluation records and respond carefully to proportionate disclosure requests.

Facts: The procurement dispute and disclosure request

The case relates to a two-stage procurement process for a multi-lot Framework Agreement concerning Adult Home Care Services (the Procurement). Stage One required bidders to respond to a Procurement Specific Questionnaire (PSQ), with only those bidders who successfully met the requirements of the PSQ being shortlisted and invited to proceed to Stage 2 of the Procurement.

The Claimant was excluded from the Procurement at Stage One having failed to meet the minimum score requirements for a particular question in the PSQ. Following notification of its exclusion, it sought disclosure of the moderation records relating to that question as well as any guidance notes provided to the evaluators who conducted the scoring.  The Claimant was concerned that the evaluation process had not been carried out on a consistent or equal basis across all bidders.

The contracting authority declined to provide the requested disclosure in full. The Claimant subsequently issued proceedings and applied to the Court for specific disclosure.  In summary, the application sought the following:

• All contemporaneous evaluation records of the Claimant's response to a specified question in the PSQ; and
• All contemporaneous evaluation records of responses to the specified question in the PSQ from other bidders who achieved a score of 4 (or higher).  

Decision: The test of a prima facie case

Application granted.

Mr Justice Constable acknowledged that previous authorities, including Roche, provide for a relatively low threshold to obtain early specific disclosure in procurement cases because of the inherent imbalance of information as between the contracting authority and bidders. That said, Mr Justice Constable was careful to note that just because there is a low bar, it does not mean that there is no bar at all. Claimants must still satisfy the court that it has established a prima facie case before an order for specific disclosure will be granted.

The judgment went on to consider the meaning of a "prima facie" case and concluded that determining whether such a case exists does not require an analysis of competing evidence or any assessment of the merits of the case. In fact, the exercise involves looking at the claimant's case alone and considering whether, taken at its highest, it is sufficiently strong to warrant a response.

The Judge stated that, pending disclosure, a prima facie case:

"… 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. The overall assessment may also involve, as the authorities demonstrate, the identification of general concerns about the adequacy of the procurement process".

The Judge considered that the Claimant met the above test.

The Judge also stressed the importance of proportionality and concluded that there is a need to guard against applications for specific disclosure being "used simply as a fishing exercise, designed to shore up a weak claim, which will put the defendant to needless and unnecessary cost".

Courts will, therefore, be mindful of the risk of ordering disclosure where it imposes a disproportionate burden on a contracting authority. Focused requests for specific documents, rather than broad requests that reflect a fishing exercise, are more likely to succeed (which has always been the case).

Finally, and importantly on the issue of proportionality, the contracting authority in this case had already conceded that the documents sought by the claimant would be readily available and amounted to a small amount of material so there was no obvious issue with the disclosure being disproportionate or burdensome for the contracting authority.

Key takeaways: What this judgment means for you

Prime Way Care represents the first reported judgment to consider an application for specific disclosure under the PA23. The judgment reflects that the Court did not consider the new statutory regime to require a fundamentally different approach to disclosure applications from that which applied under the Public Contracts Regulations 2015.

The principles established in cases such as Roche continue to be applied when considering applications for specific disclosure in procurement cases.

For Suppliers:

• Bidders who suspect inconsistent or irregular evaluation should seek legal advice promptly and consider whether early disclosure of contemporaneous evaluation records is needed to properly understand what has taken place.

For Contracting Authorities:

• Contracting authorities should continue to prepare evaluation records on the basis that they may be scrutinised by unsuccessful bidders, lawyers and the Court.
• Care should be given when providing feedback to excluded bidders ensuring clear, accurate and well-evidenced feedback.
• Requests for disclosure should be carefully considered, taking into account whether there is a prima facie case to answer and the ease with which disclosure can be provided.

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This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2026.  For more information see our terms & conditions.