When "encouraged" became "expected": Prime Way Care and the new disclosure discipline for local authority procurements

On 21 July 2026, Mr Justice Constable handed down judgment in Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark [2026] EWHC 1845 (TCC), ordering a London borough to disclose anonymised evaluation records for the five bidders still in contention in an adult home care framework procurement, into a lawyers-only confidentiality ring. On one view, this is a routine specific disclosure application. It is more significant than that. It is the first significant illustration of the rewritten Appendix H to the 2026 TCC Guide in operation, and it signals a change in what the court now expects of contracting authorities from the moment a complaint lands.

The dispute

Southwark ran a two-stage procurement under the Procurement Act 2023 to establish a multi-lot framework for adult home care services. Question 22(ii) of the Procurement Specific Questionnaire asked about workforce management experience, capped responses at 500 words, and required a minimum score of 4 out of 5 to proceed. Prime Way Care scored 3 and was eliminated.

What followed will be familiar to anyone who acts for or against authorities. Prime Way asked for the moderation record and the evaluator guidance. Southwark provided expanded explanatory correspondence instead, stating that it could not release individual evaluator notes, internal deliberations or detailed moderation documentation. Initially it disclosed nothing at all, including the contemporaneous records of the evaluation of Prime Way’s own bid. Prime Way, unrepresented at the time, issued proceedings; once represented, it applied for specific disclosure of the contemporaneous evaluation records for question 22(ii). By the hearing the application had narrowed sensibly, from the 33 bidders (of 144) who scored 4 or more to the five still in the frame for award, whose records were agreed to sit in a small number of readily available spreadsheets capable of anonymisation. The judge ordered disclosure.

The new Appendix H

The interest lies in how he got there. The judgment extracts, as part of the legal framework itself, paragraphs 6 and 7 of the guidance note at Appendix H to the 2026 TCC Guide. Paragraph 7 provides:

"Contracting authorities are expected to disclose the key decision materials relating to the complaints made against them. Where the complaint relates to the award decision or disqualification at an earlier stage of the procurement, such materials should include the instructions given to the evaluation team, documents showing the individual and consensus scores, minutes of moderation meetings, the contemporaneous documentation produced for and by the actual evaluation process, and any documents generated by any independent check of the evaluation process actually carried out."

That wording repays comparison with its predecessor. The earlier Guide encouraged early disclosure in more than one place, including the encouragement to provide "key decision-making materials at a very early stage of proceedings or during any pre-action correspondence", and commentary at the time consistently described authorities as strongly encouraged to disclose key materials relevant to the complaint. But the encouragement was expressed in general terms and the core document set was never defined. The 2026 text goes further in two respects. It says that authorities are expected to disclose. And it identifies, for award and disqualification challenges, what that expectation ordinarily encompasses: evaluator instructions, individual and consensus scores, moderation minutes, the contemporaneous documents generated by the actual evaluation, and the product of any independent check actually carried out.

That expectation sits comfortably with wider public law principles of transparency and good administration, but it is now expressed in far more operational terms for procurement litigation.

Paragraph 6, meanwhile, strongly encourages the parties to establish confidentiality rings and undertakings before proceedings are issued, with a stated aim that could hardly be more pointed: to avoid the need to issue proceedings simply to obtain early specific disclosure. The revised Appendix also offers authorities a piece of practical governance advice with no counterpart in the old text: consider not publishing the contract award notice at the same time as the assessment summaries, so that the standstill period is not triggered before the authority is equipped to answer the queries the summaries will generate.

Roche refined, not replaced

None of this displaces the familiar case law, and the judgment does not abolish the prima facie threshold associated with early specific disclosure. Constable J expressly declined to restate or gloss the principles in Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), which remain the leading guidance: the informational asymmetry between challenger and authority justifies a relatively low bar, but a low bar is not no bar, requests must be tightly drawn, and the court must guard against fishing expeditions.

The judgment does, however, refine the picture in two respects that practitioners should note.

First, timing matters to the threshold. The prima facie case requirement in the Roche line is a feature of early specific disclosure, meaning disclosure sought before the point at which standard disclosure would ordinarily arrive. This application was heard after the principal statements of case had been served and relatively shortly before disclosure would ordinarily have been required, in respect of documents relevant to a pleaded issue, readily available and narrowly defined. In those circumstances the judge questioned how much additional work the prima facie hurdle should do: requiring a claimant to clear it merely because disclosure of the same documents is sought slightly early, when it would not apply once they fell to be provided through ordinary disclosure, may serve little procedural purpose. The point did not require determination because, in the alternative, he held that the low threshold was met in any event, assisted by an apparent discrepancy between the typed moderation minutes and the handwritten moderation notes which, on its face, raised a concern of ex post facto justification. But the direction of travel is clear. Where the documents sought are relevant to a pleaded issue and would shortly be disclosable anyway, an authority should not expect the prima facie requirement to do much work.

Secondly, pleadings are read generously, but the issue must be in play. Southwark argued that unequal treatment had never properly been pleaded: the litigant-in-person Particulars merely reserved the right to plead it after disclosure. The judge disagreed. Read fairly and as a whole, the Particulars alleged a violation of equal treatment through the application of undisclosed "shadow benchmarks", and the express anticipation of further particularisation after disclosure reinforced, rather than undermined, the conclusion that a generalised unequal treatment case was already on foot. Two lessons sit together here. The court will recognise the asymmetry a challenger faces and will not hold an imperfect pleading to counsel’s standard of felicity, particularly where the lack of particularity is itself the product of the information gap. But the order was made because the pleaded case put the issue in play. A challenger with no pleaded foothold at all should not read Prime Way Care as a licence to fish.

The authority’s stance came at a price

One passage deserves particular attention on the authority side. Southwark criticised Prime Way for not seeking comparator documents sooner. The judge considered the criticism unwarranted, observing that it lay somewhat ill in the mouth of an authority which had responded to the original complaint by providing no disclosure at all, even of the claimant’s own evaluation records. An authority that discloses nothing surrenders the argument that the challenger asked for the wrong things too late.

Proportionality then did the rest. A single scored question; five bidders; a handful of spreadsheets already to hand; anonymisation likely achievable; first disclosure into a lawyers-only ring whose terms the parties had agreed. The judge also dealt shortly with the objection that the material would prove nothing: if Southwark is right about that, early disclosure narrows the issues or ends the claim, which is itself a case management virtue. Disclosure that vindicates the evaluation is not a concession. It is frequently the cheapest exit an authority has.

What contracting authorities should do now

Where a complaint genuinely engages the evaluation process, the practical message of the 2026 Appendix H, as applied in Prime Way Care, reduces to three questions, and none of them is whether to disclose.

What to disclose is now itemised: where the complaint concerns an award decision or an earlier disqualification, the paragraph 7 categories are the starting point, and an authority declining to provide them should expect to explain why. When to disclose is equally clear: ordinarily in pre-action correspondence, not after a contested application, because the stated purpose of the protocol is that no one should have to issue proceedings simply to obtain the evaluation record. How to disclose is where the genuine work lies: anonymisation of other bidders, lawyers-only rings established pre-action, proportionate limits by reference to the complaint actually made, and undertakings that protect commercially sensitive material without functioning as a reason for blanket refusal.

Confidentiality, in other words, has moved from being an answer to disclosure to being a design constraint on it. It has not disappeared as a valid concern but the new Guide assumes that any concerns (i) can be accommodated with a robust confidentiality ring and (ii) should not of themselves be a general bar to disclosure. Third parties whose information will be disclosed may have a legitimate concern to see these provisions and ensure that they will be sufficient to protect their interests.

The authorities that will fare best under the new protocol are those whose procurement and legal teams treat the contemporaneous evaluation record as a document set that is likely to be produced, in some form, whenever a complaint has substance, and who therefore keep it in a condition fit to be produced: moderation minutes that match the notes, scores that reconcile, and feedback letters drafted from the record rather than reconstructed after the event. The discrepancy that helped Prime Way over the threshold was between Southwark’s own typed minutes and its own handwritten notes.

The practical significance of Prime Way Care is that the debate has shifted. Where the record is relevant to a properly articulated complaint, it is likely to come out either way; the principal questions for a contracting authority are no longer whether the contemporaneous evaluation materials will be disclosed, but when, and on whose terms: early, within a ring of the authority’s negotiation, or late, by order, with the court already wondering why they were withheld.

Paul Henty is a Partner at Beale & Co.