Implied misrepresentation claim survives strike out in Bromcom v Arbor Education Partners

The High Court has largely refused an application to strike out an unlawful means conspiracy claim brought by Bromcom Computers PLC against a rival supplier of school management information systems, while dismissing a freestanding allegation that the supplier owed a common law duty to disclose its true financial position during a public procurement exercise.

In Bromcom Computers PLC v Arbor Education Partners Ltd & Ors [2026] EWHC 1605 (KB), Mr Justice Moody considered an application by Arbor Education Partners and three of its directors to strike out Bromcom's claim, or obtain summary judgement, in a dispute arising from a tender run by United Learning Trust to provide management information systems across its schools. Bromcom alleged that Arbor's answers in a selection questionnaire amounted to actionable misrepresentations that should have seen it excluded from the procurement at the first stage, with the contract instead awarded to Bromcom. Damages were pleaded at over £4.18 million.

The dispute centred on Arbor's response to questions concerning its Experian credit score, which it self-certified as meeting the trust's minimum threshold, adding an unrequested rider giving the actual score and a "low risk" classification. It was common ground the figure provided was accurate at the time. Bromcom's case was that this answer carried implied representations as to Arbor's underlying financial standing that did not reflect the true position, particularly once Arbor's 2018 accounts were later restated and its score fell to 25, a level classified as high risk, before recovering within weeks.

Arbor advanced four grounds for strike out or summary judgement, arguing first that no reasonable person in United Learning Trust's position could have understood the questionnaire response to carry the implied representations alleged. Applying the test from IFE Fund SA v Goldman Sachs International and the guidance of Lewison LJ in Mellor v Partridge on misrepresentation by half truth, Mr Justice Moody held that whether the implied representations arose was a fact sensitive question properly left for trial, given the rider Arbor had volunteered and the arguably inaccurate answer given to a related question about audited accounts.

On the second and third grounds, concerning the pleading of Arbor's intention to convey and intention to induce reliance on the alleged representations, the court found these to be pure pleading deficiencies rather than substantive weaknesses, noting sufficient primary facts already pleaded elsewhere in the particulars. Rather than striking out the claim, the judge directed Bromcom to re-amend its pleading to state these elements expressly, an approach counsel for Bromcom did not resist.

The fourth ground succeeded. Bromcom's alternative case, that Arbor owed United Learning Trust a freestanding common law duty to disclose its true financial standing, was struck out. Mr Justice Moody confirmed that English law imposes no general pre-contractual duty of disclosure, citing Cartwright on Mistake, Misrepresentation and Non-Disclosure, and rejected arguments that public procurement contracts should be treated as relational contracts of the kind discussed by Fraser J in Bates v The Post Office, or that the Public Contracts Regulations 2015 gave rise to an overlapping common law obligation. The judgement noted that the regulations constitute a complete statutory scheme for the tender process and leave no room for an additional, judicially created disclosure duty that Parliament chose not to impose.

The misrepresentation based elements of the claim will accordingly proceed to trial once the pleading has been amended as directed.