Bromcom Computers PLC v Arbor Education Partners Ltd & Ors [2026] EWHC 1605 (KB)

[2026] EWHC 1605 (KB)Case No KB-2025-000236
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of Justice, Rolls Building, 7 Rolls Buildings, Fetter Lane,Date 30 th June 2026
London, EC4A 1NL
Before
The Hon. Mr Justice Moody
Bromcom Computers PLC Claimant
Between
Arbor Education Partners Ltd DefendantsJames Edward WeatherillPhillippa De’AthMargaret Clare Leichsman
Mr Nigel Jones KC and Paul Burton (instructed by DAC Beachcroft LLP) for ClaimantMr James Segan KC and Tom Leary (instructed by Pinsent Masons LLP) for DefendantsHearing Hearing Date: 4 th June 2026
APPROVED JUDGMENTRemote hand-down: this judgment was handed down remotely at 10.30 am on Tuesday 30 th June 2026 by circulation to the parties or their representatives by e-mail and release to the National Archives.
[1]This is an application brought by the Defendants to strike out the Particulars of Claim and/or for summary judgment.

Background

[2]The Claimant, Bromcom Computers Limited (“Bromcom”) and the First Defendant, Arbor Education Partners PLC (“Arbor”) both carry on business providing management information systems (“MIS”) to schools. The Second, Third and Fourth Defendants are (or were at all material times) directors of Arbor.[3]The dispute arises from a public procurement exercise in which Bromcom and Arbor both sought to win a tender to provide MIS to United Learning Trust (“ULT”) which operates a number of schools in England. Arbor provided (or omitted to provide) information in the course of that process which Bromcom alleges amounted to actionable misrepresentations (as against ULT). Bromcom alleges that, but for the misrepresentations, Arbor would have been excluded from the procurement process at the first stage, and the contract would subsequently have been awarded to Bromcom. The losses are pleaded at £4,180,188.[4]In these proceedings, Bromcom alleges that Arbor is liable in damages to Bromcom by reason of an unlawful means conspiracy. Arbor denies all liability. The proceedings have reached the stage of close of pleadings and, as I have indicated, Arbor has applied to strike out the claim and/or for summary judgment.[5]ULT required all potential suppliers to complete a selection questionnaire (the “SQ”). This was a means of whittling them down at the first stage of the procurement process. Arbor’s SQ was dated 29th November 2019. Part 1 of the SQ included certain information about the supplier. Part 2 addressed mandatory and discretionary grounds for exclusion, for example past criminal convictions and breach of environmental obligations respectively. Part 3 then comprised “Selection Questions” which provided as follows: Section 4 Economic and Financial Standing Question Number Question Response4.1 Are you able to provide a copy of your audited accounts for the last two years, if requested? If no, are you able to provide one of the following? Answer with Y/N in the relevant box. Yes – [tick]* No a) a statement of turnover, Profit and Loss Account/ Income Statement, Balance Sheet/ Statement of Financial Position and Statement of Cash Flow for the most recent year of trading for this organisation. Yes – No - Can provide on request b) a statement of cash flow forecast for the current year and a bank letter outlining the current cash and credit position Yes - No - Can provide on request c) alternative means of demonstrating financial status if any of the above are not available (e.g. forecast of turnover for the current year and a statement of funding provided by the owners and/ or the bank, charity accruals accounts or an alternative means of demonstrating financial status). Yes - No - Can provide on request4.2 A minimum financial threshold has been set within the evaluation criteria for this procurement. Please self – certify that by answering ‘Yes’ or ‘No’ that you meet the requirements set out in the Response Guidance below. Yes – [tick] No - Experian low risk (87) Response Guidance: The Trust will use Experian to obtain a financial risk score for your organisation. The report provided by Experian will be used to determine the level of financial risk you represent. If the score provided by Experian is 51 or more (where a standard UK score is available), or the risk level is ‘satisfactory’ or better (where a standard international score is available) then you will be allocated a ‘pass’ for the Economic and Financial Standing element of the questionnaire. If the Trust determines that the financial risk is determined as being above (i.e. worse than average, then the Tender will be allocated a ‘fail’ and will be excluded from further involvement in this Procurement. If no standard Experian score is available for your organisation, the Trust may contact you to provide a copy of your company’s audited accounts for the most recent two years (and where relevant the audited accounts of your guarantor), and/or one or more of the following in respect of your organisation or guarantor (as the case may be):• a statement of your turnover profit and loss account and cash flow for the most recent year of trading:• a statement of your cash flow forecast for the current year and a bank letter outlining the current cash and credit position; and/ or• an alternative means of demonstrating financial status if trading for less than a year 6. 432 Section 5 If you have indicated in question 1.2 that you are part of a wider group, please provide details below: Name of organisation Arbor Education Partners Group Ltd Relationship to supplier completing these questions Immediate parent company5.1 Are you able to provide parent company accounts if requested at a later stage? Yes – [tick] No-5.2 If yes, would the parent company be willing to provide a guarantee if necessary? Yes – [tick] No-5.3 If no, would you be able to obtain a guarantee from elsewhere (e.g. from a bank)? Yes – No- Not applicable -[6]The focus of these proceedings is on Arbor’s response to questions 4.1 and 4.2. Arbor self-certified (by ticking the “yes” box) that its Experian credit score was 51 or more. It added a rider that gave the actual score (87) and stated “low risk”. It is common ground that the answer was correct and truthful in that Arbor’s Experian score was indeed 87 and so was categorised as “low risk”. (Bromcom pleads that the score was 75 but it is common ground that nothing turns on this.)[7]Bromcom’s complaint is in essence that Arbor was not entitled to such a score because its finances were not such as to justify it. Furthermore, Arbor’s directors knew this and they failed to draw this to ULT’s attention. The precise means by which Experian calculates a credit score is not known, but it is understood that Experian relies upon publicly available information. In this case it is assumed that Experian would have relied on Arbor’s 2018 accounts. Bromcom says that those accounts were abbreviated unaudited accounts which did not include a profit and loss account. At paragraph 24 of the Amended Particulars of Claim, Bromcom alleges that after the 2018 balance sheet and profit and loss account were restated, Arbor’s Experian score fell to 25 and was therefore high risk. They allege further that the Defendants knew of Arbor’s true economic and financial standing, as ultimately recorded in its restated balance sheet and profit and loss account.[8]In light of the SQ, Arbor was not excluded from the selection process, and it went forward together with Bromcom. Arbor was ultimately selected as ULT’s contracting partner. It appears that, after the SQ exercise was completed, Arbor’s finances were scrutinised in some detail by ULT and Arbor’s risk profile was indeed duly reduced to “high risk” with a score of 25. However, Arbor’s score was increased to 60 by no later than 11 June 2020, less than two weeks after the decrease to 25. No complaint was made by ULT about the SQ. Such concerns as ULT had appear to have been addressed. Bromcom’s point however is that if the SQ had not contained the alleged misrepresentations, then Arbor would never have made it through to the post SQ process. On that basis, Bromcom says that it would have been selected by ULT.[9]As I have indicated, the cause of action relied upon by Bromcom is unlawful means conspiracy. The elements of this tort were identified in Kuwait Oil v Al Bader (No. 3) [2000] 2 All ER at [108] per Nourse LJ:
“A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so.”
[10]The allegation in this case is that Arbor and its directors combined together to win the tender by unlawful means and therefore caused Bromcom loss. The unlawful means alleged are that Arbor made actionable misrepresentations as against ULT. It follows that Bromcom will have to establish all the elements of misrepresentation as against ULT.

The Amended Particulars of Claim

[11]Bromcom’s pleading has been subjected to a sustained attack from Arbor. Paragraphs 1 to 13 set out an introduction and some background facts. Paragraphs 14 to 22 address the SQ and allege that Arbor’s score of 75 [actually 87] in November 2019 (i.e. when the SQ was completed) “did not accurately reflect the true state of Arbor’s economic and financial standing at the date of the SQ.” Paragraphs 23 to 37 set out in some detail Arbor’s true financial position. (I observe that much of the detail was added by way of amendment after this application was issued.) Paragraphs 38 to 46 have the heading “Misrepresentation by conduct and/or implied representation”. Paragraph 38 then alleges that at the time of completing the SQ, the Defendants knew that ULT would use the Experian score to determine the level of financial risk, and that ULT would rely on the SQ for this procurement exercise. Paragraph 41 then includes the alleged implied misrepresentations which are at the heart of this application. It provides as follows: 41. By self-certifying that Arbor had an Experian score of 75, and by completing and submitting the SQ to ULT, Arbor impliedly represented to ULT on 29 November 2019 that:a. Its true economic and financial standing at that date justified a risk profile of Below Average Risk and a score of 75; and/orb. It had no reason to think that the score of 75 did not represent its true economic and financial standing on that date; and/orc. Its true economic and financial standing supported an Experian risk profile of Below Average Risk, and a score of 51 or more; and/ord. It had not withheld from Experian any information that may have affected its assessment of Arbor’s risk profile and score; and/ore. That it knew of no material facts that would have affected its risk profile and score or otherwise rendered its score inaccurate or misleading to ULT in the absence of ULT’s knowledge of those material facts.[12]At paragraph 45 it is alleged that the implied representations were false. Paragraph 46 then states: Further or alternatively, by their knowledge and conduct pleaded… above and by their self-certification of Section 4 of Part 3 of the SQ, Arbor and the Directors made false representations to ULT with regard to Arbor's economic and financial standing at the time of submitting the SQ.[13]Paragraphs 47 to 51 have the heading “Knowledge of falsity or recklessness”. It is then alleged that the Defendants knew of the true state of Arbor’s economic and financial standing, that the risk profile was not below average as required by the SQ but was a high risk, and consequently that the Defendants knew that the representations were false. Paragraphs 52 to 58 are headed “Non-disclosure” and allege that Arbor owed ULT a duty positively to disclose its “true economic and financial standing”. Paragraphs 59 to 70 plead unlawful means conspiracy. Paragraphs 71 to 77 are allegations of particulars of loss.

The Application

[14]Arbor’s application is to strike out on the basis that the Particulars of Claim disclose no reasonable grounds for bringing the claim (CPR 3.4(2)(a) and/or fail to comply with a rule or practice direction, viz. paragraphs 8.2(1) and 8.2(3) of PD16 (CPR3.4(2)(c)). The references to the Practice Direction are to the requirements that a claimant must specifically plead particulars of any allegation of fraud, and details of any misrepresentation. In the alternative Arbor seeks summary judgment pursuant to CPR 24.3 on the same grounds.[15]The application notice cross-refers to the witness statement of Mr Michael Fletcher, the Defendants’ solicitor, and he sets out the grounds relied upon. The grounds were refined by Mr Segan KC for Arbor in his written and oral submissions such that Bromcom now relies upon four grounds in support of its application. These are: Ground 1: No reasonable person in the position of ULT could or would have understood Arbor’s response at 4.2 of the SQ to be making the alleged implied representations; Ground 2: Bromcom has not pleaded or identified any primary facts which would enable it to plead that Arbor intended to convey to ULT the implied representations; Ground 3: Bromcom has not pleaded that Arbor intended to induce ULT by the alleged implied representations, and nor does it plead any primary facts capable of supporting such a case; Ground 4: The allegation of a duty of positive disclosure is not properly pleaded and is bad in law anyway.[16]No objection was taken to the grounds being framed in this way, and I address them below in the same sequence.

The approach to striking out and summary judgment

[17]The focus of both parties’ submissions was by reference to the test for summary judgment. Pursuant to CPR 24(3)(a), the Defendants must show (a) that the Claimant has no real prospect of succeeding on the claim or issue. The applicable principles were formulated by Lewison J (as he then was) in Easyair v Opal Telecom Ltd [2009] EWHC 339 and approved by the Court of Appeal in AC Ward and Sons v Catlin (Five) Ltd [2009] EWCA Civ 1098 at [24]. This is all well digested in the White Book at 24.3.2. I note in particular that:a. I must consider whether the claimant has a realistic as opposed to a fanciful prospect of success;b. A realistic claim is one that carries some degree of conviction, and is more than merely arguable;c. I must not conduct a mini trial;d. This does not mean that the Court should accept at face value and without analysis everything the claimant says;e. I must take into account not only the evidence placed before the Court on this application, but also the evidence which may reasonably be expected to be available at trial.[18]I bear this all in mind as I approach the Defendants’ application.

Ground 1 - No real prospect of establishing the implied representations

[19]This ground was not contained in the original application or supported by Mr Fletcher’s first statement, but Bromcom did not object to Arbor advancing it. Arbor’s case in this respect is straightforward. They submit that the SQ asked a simple question as to Arbor’s Experian score, and it was answered truthfully and accurately. Mr Segan emphasised that the question sought a yes/no answer and gave a pass/fail result. Arbor submits that there can be no room for implying the alleged misrepresentations which go to Arbor’s actual financial position at the time.[20]Looking at the implied representations alleged at paragraph 41 of the Amended Particulars of Claim, sub-paragraphs (a), (b), and (c) address broadly the same point, viz. that the completed SQ impliedly represented that Arbor’s true financial position justified a below average risk profile. Sub-paragraph (d) alleges that Arbor represented that it had not withheld contrary information, and sub-paragraph (e) that Arbor knew of no contrary information.[21]For Bromcom Mr Jones KC emphasised what he described as “the strength” of Bromcom’s position on the facts(a) as to Arbor’s true financial circumstances, and(b) the directors’ undoubted knowledge of those circumstances. He pointed out that Arbor should not have ticked “yes” at 4.1 in answer to the question as to whether Arbor would have been in a position to provide audited accounts for the last two years if requested, because the true position was that none were then available. He submitted that Arbor went further than simply ticking the “yes” box at question 4.2; they also added the rider “Experian Low Risk (87)”, but this was unnecessary and not requested. He emphasised that the Response Guidance stated that ULT would “determine” whether the financial risk was worse than average, which suggested that ULT would positively assess the material provided (as opposed to simply accepting a score). Mr Segan however emphasised that the SQ was no more than part of an initial filtering process. The finances of the potential suppliers who passed the first stage would no doubt be subjected to further scrutiny at a later stage. Moreover, if ULT had wanted more information about the potential suppliers’ finances at the first stage, they could have asked for it.[22]The test for the implication of representations is what a reasonable person in the position of the representee would have understood was being implicitly represented by the representor’s words and conduct in context: see IFE Fund SA v. Goldman Sachs International [2006] EWHC 2887 at [50] per Toulson J. This is a question of fact.[23]A misrepresentation may be made by silence or as a result of a half-truth: As Lewison LJ observed in Mellor v. Partridge [2013] EWCA Civ 477 at [17]:
“...First a representation which is literally true may nevertheless be a misrepresentation if relevant facts are concealed. Second, allied to this proposition is the proposition that a representation may be implicit. Often the two will overlap. A half truth may amount to deceit if it is suggestive of a falsehood and intended to be so.”
[24]I observe that Lewison LJ went on in the same paragraph to note:
“What the court must consider is what a reasonable person would have inferred was being implicitly represented by the representor’s words and conduct in their context. These are fact sensitive questions which, in my judgment, can only be fairly determined at trial.”
[25]In my judgment, that is the position here. It is true that question 4.2 of the SQ asked one specific question and it was answered in a way that was strictly correct, but Arbor added a rider which was arguably untrue (in that they were arguably not entitled to that risk rating at that time), and the answer to question 4.1 was also arguably untrue. Whether the alleged implied representations were made is a question to be determined objectively in the light of the context on the basis of how it would have appeared to a reasonable person in the position of the representee. Mr Jones’s points seemed to me to mix the subjective knowledge of Arbor with the reasonable understanding of ULT, but I consider that there is enough in the surrounding evidence and context (as set out in paragraph 21 above) for the issue - as in Mellor – to go to trial.[26]Arbor submit that the alleged implied representations would impose a positive disclosure obligation by the back door, and that this would reallocate the contractual risk as between Arbor and ULT. Once again, these seem to me to be points that need to be determined in light of an evaluation of the evidence. Arbor also submit that ULT never complained about Arbor's conduct, and never alleged that the implied representations were made or that it was deceived. That may be so, but it seems to me that this evidence as to conduct after the event cannot be relevant to an objective consideration as to how matters would have appeared to a reasonable person in the position of the representee at the time.[27]I consider that Bromcom has a real (not fanciful) prospect of establishing the alleged implied representations. I therefore reject Ground 1.

Ground 2: the need to plead “an intention to convey”

[28]Arbor’s second ground is that Bromcom has failed to plead that Arbor intended to convey the alleged misrepresentations with the meanings alleged, and there are no primary facts to support such a case in any event. It is common ground that it is a necessary component of the tort that Arbor should have “intended to convey” the alleged meaning, and it is also common ground that those specific words are not used in the pleading. Bromcom submit that the point is self-evident and implicit in the Amended Particulars of Claim in that it pleads Arbor’s knowledge of its true financial position (paragraphs 23 to 37), and pleads the purpose of the representations, ie Arbor’s knowledge as to how ULT would use and rely on the information in the SQ (paragraph 38).[29]Upon examination this is really a pure pleading point. Mr Jones recognised this by offering to re-amend so as to add at paragraph 41 “Arbor impliedly represented, and intended to represent, to ULT…” (This was a belated concession since Bromcom previously rejected an opportunity to clarify the position in response to Arbor’s Request for Further Information.) Mr Segan submitted that this would not address the point since the pleading still lacked primary facts upon which the plea could be based and there was no plea as to which Defendant(s) held the requisite intention or how that intention was attributable to the First Defendant. I reject these submissions. In my judgment paragraphs 23 to 37 and 38 constitute sufficient primary facts. As to the question of which Defendant held the intention, it is alleged against all of them and it is trite that the intention of a director may be attributed to the company. I therefore reject ground 2, albeit I direct that Bromcom should re-amend to plead the underlined words identified above.I consider that this is an appropriate and pragmatic way of dealing with the point. I have already concluded that the allegations of misrepresentation have a real prospect of success and it would not be fair or proportionate to strike out on this ground.[30]It is now common ground that Bromcom needs to plead and prove that Arbor intended to induce ULT to rely on the misrepresentations. (That was not Bromcom’s position when responding to the Request for Further Information.) It is also now common ground that those precise words do not appear in the Amended Particulars of Claim. Bromcom’s position is that the point is implicit in that, since the representations were made in the context of Arbor’s completion of the SQ in a procurement exercise, it is obvious that Arbor intended ULT to rely on them. Mr Jones submitted that the point was “baked in” to the pleading. He pointed out that at sub-paragraphs 38 (a) to (e) the purpose of the representations is pleaded, and at sub-paragraphs (f) and (g) it is pleaded that ULT would rely on them. Upon examination this is – as with ground 2 – a pure pleading point. Since it is agreed that an intention to induce is a necessary component of the tort, and since this is fraud pleading where particularity and precision are of the essence, I consider that – once again - the appropriate and pragmatic way of dealing with this is to require Bromcom to re-amend to plead the point clearly. Mr Jones indicated that he would not object to that course of action. I have already concluded that the allegations of misrepresentation have a real prospect of success and again it would not be fair or proportionate to strike out on this ground.[31]This ground is distinct from the other three in that it is directed to a freestanding part of the pleading, paragraphs 52 to 58. They are headed ‘Non-disclosure’ and provide as follows:52. Further or alternatively, and without prejudice to paragraphs 38 to 51 above, Arbor, acting by the Directors, had a duty to disclose its true economic and financial standing to ULT owing to the following facts and matters.53. The Procurement Exercise was conducted and the Contract awarded pursuant to the Regulations.54. At the time of its completion and submission the SQ gave effect to the European Single Procurement Document (“SPD”), which provided a list of questions in order that potential suppliers could self-certify that none of the grounds for exclusion applied to them and that they met the required selection criteria.55. By operation of regulation 59 of the Regulations ULT was bound to accept the SQ, and Arbor’s self-certification, acting by the Directors, as evidence that Arbor fulfilled the requisite conditions identified in regulation 59(1).56. By operation of regulations 59(3) and 59(4) of the Regulations the SQ was Arbor’s formal declaration that no relevant exclusionary ground applied to it and/or that it fulfilled the relevant selection criteria.57. Bromcom repeats paragraph 35 above. Further or alternatively, at the time the SQ was submitted only Arbor, and the Directors, had knowledge of the material facts pleaded in paragraphs 23 to 34 above, and of the true state of Arbor’s economic and financial standing. At the time Arbor avoided a “fail” pursuant to section 4 of part 3 of the SQ, and automatic disqualification from the Procurement Exercise, ULT was unaware of Arbor’s true economic and financial standing.58. In the premises, during the Procurement Exercise and/or at the time of the submission of the SQ, Arbor and ULT were in a relationship of trust and confidence. Further or alternatively, the Procurement Exercise and/or the Contract imposed under common law an obligation on Arbor, at the time of completing and submitting the SQ, to disclose the facts and matters pleaded in paragraphs 23 to 34 above.[32]So, the allegation is of a free-standing duty of disclosure during the SQ process. Before addressing the substance of this point it should be noted that the pleading does not clearly allege a breach of this duty, or seek relief arising from such a breach, and there is no reference to it in the prayer. Mr Jones submitted that the intention was that breach of this duty of disclosure was relied upon as an alternative to the allegations of misrepresentation; in other words an alternative unlawful means, but he recognised that this is not what the Amended Particulars of Claim says.[33]Putting on one side the defective pleading, I consider that this argument stands no real prospect of success for the following reasons.[34]The starting point is that there is no general duty of disclosure prior to the conclusion of a contract: see: Cartwright on Mistake, Misrepresentation and Non-Disclosure (7th ed.) at 16-02:
“English law does not impose on parties who are negotiating for a contract a general obligation to disclose information: that is to say, the starting point is that each negotiating party may remain silent, even as to facts which he believes would be operative on the mind of the other.”
[35]That much is well understood and is accepted by Bromcom. There is a series of recognised exceptions to this principle which are identified by Cartwright as insurance contracts [17-12], partnership contracts [17-26], settlements between family members [17-35] and surety contracts [17-27]. Bromcom submits that public procurement could be recognised as an additional exception, but it accepts that it cannot point to analogous cases.[36]The arguments deployed by Mr Jones on this aspect of the case were faint but he relied upon two matters in particular. First, he submitted that the final contract could be regarded as a “relational”, and second he relied upon the context of the Public Contracts Regulations 2015.[37]On the question of a relational contract, Mr Jones submitted that the final contract between ULT and its chosen partner was one that was likely to persist for some time. He submitted that a duty of trust and confidence had been recognised in such contracts. The position was carefully analysed by Fraser J (as he then was) in Bates v The Post Office [2019] EWHC 606 at [702]-[721], and at [725] he held:
“What then, are the specific characteristics that are expected to be present in order to determine whether a contract between commercial parties ought to be considered a relational contract? I consider the following characteristics are relevant as to whether a contract is a relational one or not: 1. There must be no specific express terms in the contract that prevents a duty of good faith being implied into the contract. 2. The contract will be a long-term one, with the mutual intention of the parties being that there will be a long-term relationship. 3. The parties must intend that their respective roles be performed with integrity, and with fidelity to their bargain. 4. The parties will be committed to collaborating with one another in the performance of the contract. 5. The spirits and objectives of their venture may not be capable of being expressed exhaustively in a written contract. 6. They will each repose trust and confidence in one another, but of a different kind to that involved in fiduciary relationships. 7. The contract in question will involve a high degree of communication, co-operation and predictable performance based on mutual trust and confidence, and expectations of loyalty. 8. There may be a degree of significant investment by one party (or both) in the venture. This significant investment may be, in some cases, more accurately described as substantial financial commitment. 9. Exclusivity of the relationship may also be present.”
[38]I reject this submission. The mere fact that a contract would persist for some time cannot be sufficient (even arguably) to impose a duty of disclosure on a contracting party. Bromcom has not attempted to explain how a procurement contract is different in any relevant sense from any other contract such that it should become a new exception to the general rule. But, quite apart from this, the position in “relational” contracts is that the duty of disclosure relates to the performance of the contract, not to pre-contractual negotiations. Bromcom did not engage with the conceptual difficulties of imposing such a duty pre-contract.[39]Mr Jones’s second argument was that there was a relationship of trust and confidence between ULT and Arbor at the time of submission of the SQ by reason of the 2015 Regulations. In the pleading the basis for this is said to be that the SQ gave effect to the European Single Procurement Document and the procurement exercise was subject to the 2015 Regulations. It is said that by virtue of regulation 59, ULT was bound to accept the SQ and Arbor’s self-certification. But, as Mr Leary for Arbor pointed out, the Regulations leave open to ULT how it should assess financial standing (see regulation 58), and it was always open to ULT to seek further information either at the SQ stage or later.[40]Indeed, when one looks at the 2015 Regulations more broadly, it is clear that there is very little room for an implied overlapping common law duty of disclosure. The Regulations provide a statutory regime for the tender process, and they impose such duties as Parliament saw fit to impose in that territory. It would have been open to Parliament to impose such a duty on the participants in a procurement exercise but it chose not to do so. In my judgment there is no room for a common law duty which would impose an additional and onerous wide-ranging disclosure duty in circumstances where the Regulations have not imposed such a duty.[41]For all these reasons I consider that the allegation at paragraphs 52 to 58 of the Amended Particulars of Claim to the effect that Arbor had a freestanding duty at common law to disclose its true economic and financial standing has no real prospect of success and should be struck out.

Conclusion

[42]Accordingly I conclude that:a. the implied representations at paragraph 41 of the Amended Particulars of Claim stand a real prospect of success, and Arbor’s application to strike out and/or for summary judgment in this respect is dismissed;b. the Amended Particulars of Claim should be re-amended so as to make express the allegation that Arbor intended to convey the matters which are the subject of the alleged implied representations;c. the Amended Particulars of Claim should be re-amended so as to make express the allegation that Arbor intended to induce ULT to rely upon the alleged representations;d. the allegation at paragraphs 52 to 58 of the Amended Particulars of Claim in relation to the duty of disclosure stands no real prospect of success and should be struck out. ***