“Assertion grounded in honest belief”: the New Test that Might Blow Open Procurement Challenges

39 Essex Chambers’ Benjamin Tankel appeared in the TCC in the first case on the test for specific disclosure under the Procurement Act 2023.

In Prime Way Care Limited v London Borough of Southwark [2026] EWHC 1845 (TCC), Constable J held that the well-known Roche test for specific disclosure may be satisfied where a party has “little more than assertion grounded in honest belief, which is coherent and constituted of the necessary elements of a cause of action.”

Until now, the Roche criteria have only ever been held to be satisfied at the award stage, and where there is some combination of a solid existing case about some aspects of a procurement exercise; a generic (albeit prima facie) case about the aspects of the exercise in respect of which specific disclosure is sought; and some background factual circumstances which raise concerns about the fair conduct of the procurement exercise.

In Prime Way, the Court held the Roche criteria to be satisfied on by far the most innocuous set of facts to date:

• The challenge was to pre-selection stage, not award stage.
• The claimant was seeking 33 sets of evaluation materials (in the event, because of the stage that the procurement exercise had reached by the time of the hearing, it received five). The previous record was five.
• By comparison with earlier cases in which Roche was applied (including in Roche itself), there was limited concern about the conduct of the procurement process generally
• The pleaded case “lacked strength”, and the relevant cause of action was put in issue by little more than use of the words “the violation of equal treatment” in the Particulars of Claim.

Ostensibly, Prime Way does not change the Roche criteria. In practice, it arguably substituted it with a new “honest belief” test. If it does, the new test would be very hard not to meet. Prime Way is likely to have a significant impact on the early stages of almost every procurement challenge for the foreseeable future.

Benjamin Tankel was instructed by Fran Mussellwhite and Erin Keating at Bevan Brittan.

Click here to read the judgment.