The Judgment in Parkingeye Ltd v Velindre University NHS Trust and Cardiff and Vale University Heatlh Board

Making it easier for claimants to maintain the automatic suspension in procurement challenges

On 1 May 2026 the Cardiff District Registry of the Technology and Construction Court delivered the first Judgment on an application to lift the automatic suspension in claims under the Procurement Act 2023[1]. Keyser J dismissed the Defendant Trust’s application to lift the suspension which had been triggered when Parkingeye issued its proceedings. 

In determining the application, the Court had to consider whether the test applicable under the Procurement Act 2023 differs from that applicable under the Public Contracts Regulations 2015 (which was the test set out in American Cyanamid v Ethicon [1975] AC 396). It concluded that it did, and that adequacy of damages for the claimant does not mean, of itself, that the suspension will be lifted. Instead, it is a wider question of balancing interests, and high up the pecking order is the public interest in not allowing an unlawful contract to be entered into. 

The consequences of the Judgment make it easier to keep the automatic suspension in place. Whilst this may fill some claimants with joy, it is worth making a cautionary observation at this point:

It is generally the case that claimants want the contract, not damages, but claimants ought also to be aware that a “win” at trial does not necessarily result in them being awarded the contract. 

For the lawyers involved, keeping the suspension in place is likely to place pressure on the parties to progress the litigation quickly so that the claim can be determined without undue delay. As the Court observed during its judgment, during the consultation process for the Procurement Act 2023, the government did propose that the suspension might be maintained in more cases, but in return a fast-track court process, or even a separate specialist Tribunal process, might minimise the impact of delay in awarding contracts. 

We have yet to see a dedicated public procurement fast-track in the High Court, and there is no suggestion (as yet) of a specialist Tribunal dealing with these matters.  That is perhaps a missed opportunity but one which might need revisiting if the current trajectory of public procurement challenges continues.   

Background Facts

Velindre provides shared services to the health service in Wales including carrying out a procurement function in respect of a tender for parking services. Parkingeye Ltd is the incumbent supplier of parking services to Cardiff and Vale University Health Board.

The tender notice in respect of the procurement was published in July 2025 under the Procurement Act 2023. On 24 December 2025 the Defendants published a Contract Award Notice which identified National Parking Control Group as the winning bidder. Parkingeye issued proceedings in January which triggered an automatic suspension under Section 101 of the Procurement Act 2023 preventing the Defendants from entering into the proposed contract with National Parking Control Group (“NPCG”) until further order.

The proceedings were transferred to the Cardiff District Registry on or around 13 March 2026, and on 19 March 2026 the Defendants issued an application to lift the automatic suspension which had been triggered on issue of the claim. 

The nature of the underlying claim

The claim included allegations of:

• Procedural irregularities with filing of the Tender Notice and associated documents (which the Defendant argued were time-barred).
• Conceiving the evaluation methodology only after the procurement was already underway.
• Treating bidders differently without lawful justification, including by assessing bids with reference to unclear and/or undisclosed criteria.  Despite uncertainly about the extent of renewal of the contract term and period during which parking penalty charge notices would be issued, the Defendant did not seek to ascertain the relevant assumptions on which bids were made, with the result that the Defendants could not be sure of having compared bids on a like for like basis.
• Deficient and unlawful record keeping.
• Unlawful scoring of bids. The notes from an evaluation meeting did not provide a proper basis for the content of assessment summaries or the scores they set out.
• Whether by misapplying the scoring criteria in the ITT, applying undisclosed scoring criteria, or treating bidders differently without justification, a significant increase in the claimant’s score was warranted, with a reduction to the score of NPCG.

The claim did not include a claim for damages. 

The applicable test on applications to lift under the Procurement Act 2023 – is it different from the old test under the Public Contracts Regulations 2015?

In considering whether to make an order lifting the suspension, the Court had to consider whether the test under Section 102 of the Procurement Act 2023 differed in any way from the previous test applicable under the Public Contracts Regulations 2015[2] (widely accepted to be that laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396. The Court concluded that the two tests are substantively and not merely formally different.

What is the test set out in the Procurement Act 2023? 

The current test set out in Section 102 of the Procurement Act 2023 provides that:

“(2) In considering whether to make an order under subsection (1), the court must have regard to—

(a)   the public interest in, among other things—

(i)              upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law;

(ii)             avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services);

(b)   the interests of suppliers, including whether damages are an adequate remedy for the claimant;

(c)    any other matters that the court considers appropriate”.

What is the test applicable under the PCR 2015?

The Court adopted O’Farrell’s statement[3] in Camelot UK Lotteries Ltd v The Gambling Commission [2022] EWHC 1644 (TCC) of the American Cyanamid test:

i)                Is there a serious issue to be tried?

ii)              If so, would damages be an adequate remedy for the claimant(s) if the suspension were lifted and they succeeded at trial; is it just in all the circumstances that the claimant(s) should be confined to a remedy of damages?

iii)             If not, would damages be an adequate remedy for the defendant if the suspension remained in place and it succeeded at trial?

iv)             Where there is doubt as to the adequacy of damages for either of the parties, which course of action is likely to carry the least risk of injustice if it transpires that it was wrong; that is, where does the balance of convenience lie?” 

The American Cyanamid test is therefore widely applied to mean that the suspension will be lifted if either (a) there is no serious issue to be tried or (b) damages would be adequate for the claimant. As most claimants are commercial entities, damages are often adequate. It is only in cases such as where the loss of the contract might have serious consequences for the claimant, or even for its service users, that the Court has found that damages are not adequate. 

Where the Court goes on to consider the balance of convenience for either party, it is often hard for the claimant to dislodge the written witness evidence of the Defendant which points to impact on the delivery of public services.

In interpreting Section 102 of the Procurement Act 2023 the Court drew out relevant principles of statutory interpretation from R (O) v Secretary of State for the Home Department [2022] UKSC 3 including that external aids to interpretation (such as government white papers and reports) may assist, and indeed their context may be relevant, but that their contents do not displace clear and unambiguous statutory words. 

What did the Court say the current test is, taking those external aids to interpretation into account?

1. Adequacy of damages is now only one matter to be taken into consideration.  Under the PCR 2015, the conclusion that damages would be an adequate remedy for the claimant would result in the suspension being lifted.  Under the old test the public interest might not fall for consideration at all, because the adequacy of damages for the claimant would in many cases be determinative of the application to lift the suspension.  That is no longer the case.
2. The text of Section 102(2) indicates that the public interest will generally tend in favour of keeping the suspension in place, although on the facts of particular cases it may weigh differently.
3. Section 102(a)(i) does not invite a consideration of the merits:

 “I read it as recognising a public interest that, where the lawfulness of an award of contract is disputed, the contract should not be awarded until that dispute has been determined”. 

4.  Section 102(a)(ii) (the public interest in avoiding delay in awarding the contract) is intended to represent serious and maybe exceptional cases.  The Court noted that the same words are used in Section 104(3) referring to not setting aside a contract, and that this referred to the overriding public interest in not doing so. 

What summary of the applicable test did the Court provide?

At paragraph 36 of the Judgment, the Court summarised the statutory test set out in Section 102 as follows:

“1) The test requires the court to balance the public interest and the interests of suppliers, including the claimant, along with any other matters the court thinks appropriate.

2) The weight to be afforded to the several factors is a matter for the court in each particular case.

3) However: (i) the adequacy of damages for the claimant, though still a relevant matter, no longer has the significance it had under the American Cyanamid test; (ii) the new test recognises the public interest that, where the lawfulness of a proposed contract award is in dispute, the contract should not be awarded until the dispute has been resolved; (iii) the public interest in lifting the suspension will generally concern the interest in the continuing provision of goods and services rather than merely the contracting authority’s Judgment as to its preferred provider of the goods and services or the detailed terms on which they will be provided.

4) Accordingly, although there is no statutory presumption and in each case the decision where the balance lies must be decided on the facts, the lifting of the suspension will generally require, on the particular facts of the case, the presence of either a very persuasive countervailing public interest or some overriding matter of private interest.

5) In deciding where the balance lies in a particular case, the court will also be mindful of its power to provide for undertakings or conditions in any order that it makes”.

What did the Court decide in Parkingeye?

The Court decided to maintain the suspension. 

The public interest: The Court placed significant importance on the public interest in ensuring that the award of the contract was done lawfully, and in the absence of any real evidence from the Defendants as to any serious consequences of delay in maintaining the suspension.

The Court also noted that to respond to unlawfulness in the procurement process by an award of damages is to divert public funds from the services for which they are allocated (see InHealth Intelligence Ltd v NHS England [2022] EWHC 2471 (TCC), per Fraser J at [17]) and to impose on the contracting authority a double cost (see the Remedies Guidance, paragraph 19).

The Court held that the primary focus of section 102(2)(a)(ii) was directed to where the provision of public services is delayed or interrupted (for example where the interruption in services could result in serious harm). That was far from the present case where the evidence did not point to interruption in services, rather only a delay relating to perceived benefits of the new contract.

The Court accepted that there is a public interest in the achievement of enhanced benefits sought to be obtained by a new contract, but that whilst the views of the contracting authority have significant weight in this regard, they are not determinative.  The Claimant had offered to match some of the benefits of the new contract whilst the suspension was in place.  

Whether damages would be an adequate remedy:  The Court made an interesting observation regarding the fact that the claimant had not claimed damages in its claim form (which the claimant relied upon in support of its assertion that damages would not be adequate for it).  Whilst this strategy was not material in this case, the Court said that allowing the claimant to frustrate an application to lift the suspension through not claiming damages in the first place “savours of pulling oneself up by one’s own bootstraps”. Notably the Court observed that, if the suspension were lifted, the claimant might apply to seek damages at a later date.  This might provide some comfort to claimants who elect to pay the cheaper court fee of £646 pm issuing non-monetary claims, rather than the £10,000 fee payable where damages in excess of £200,000 are claimed.

The claimant argued that damages would not be an adequate remedy because there would be significant difficulties in quantifying any loss. Although the Court recognised that there would be cases where the difficulties in the calculation of the damages are such that the court cannot be confident that it will be able to quantify the claimant’s loss properly and fairly, the Court did not accept that any such difficulties meant it would be unjust to confine the claimant to a remedy in damages in this case. 

The claimant also submitted that damages could not be an adequate remedy for the reputational damage that it would suffer if it lost the Cardiff & Vale contract.  The Court did not accept this either, and referred to the judgment of Jefford J in MAK Systems Group Limited v Velindre University NHS Trust[4] 

“MAK’s argument [that damages will not be an adequate remedy] is principally that it will suffer reputational damage which cannot be adequately remedied in damages. It is well-established that the claimant must provide cogent or compelling evidence that it will suffer significant financial losses that are not recoverable or not adequately compensated in damages – see Bombardier Transportation UK Ltd v London Underground Ltd [2018] EWHC 2926 (TCC) at [58], Openview Security Solutions Ltd v London Borough of Merton [2015] EWHC 2694 (TCC) at [39]; and Camelot at [98]”.

The interests of other suppliers: The interests of suppliers can be considered with reference to the claimant but also with reference to the winning bidder (in this case NPCG) and others. It was notable that in this case, NPCG did not take an active part in the application to lift.  Had it done so, and had it argued that the continuation of the suspension would have a negative impact on it, the Court would have been likely to take this into account. 

Conclusion and comment

The Court made a clear finding that the new test for applications to lift the suspension is clearly different from that set out in American Cyanamid.  Claimants who are bringing a challenge governed by the PCR 2015 will still need to show that damages are not an adequate remedy in order to maintain the suspension, whereas claimants who are bringing a challenge under the Procurement Act 2023 may feel more confident in maintaining the suspension, particularly where there is no overtly urgent issue regarding why the contract must be entered into in the public interest.

What does this mean for suppliers?  It does provide suppliers with a potential effective remedy in the sense that the claim, if successful, may result in an order that prevents the Defendant from awarding the contract to the winning bidder.  Note that it still remains the case that it is very difficult for claimants generally to obtain orders from the Court declaring that the contract must be placed with the claimant, and so claimants will have to think through carefully what their real objectives are in launching litigation in the first place.  If claimants lose at trial, they will be liable for their own legal costs and those of the defendant (including the consequences of any cross-undertaking).  If they win at trial, whilst they may recover costs there is no guarantee that they will be awarded the contract: the Court may instead order that the original award decision be set aside and, if appropriate, revisited.  In some circumstances what the contracting authority decides to do next may be to recommence the procurement completely, take the services in house or award under a framework.  In those circumstances, the claimant may find itself wishing that it had stuck with a remedy of damages in the first place. 

What does this mean for authorities?  Authorities will no longer be able to assume that the suspension will be lifted on the basis that damages are an adequate remedy for the claimant.  Authorities will need to show that the public interest points in favour of lifting the suspension.  The Court is likely to place emphasis on the importance of (a) ensuring that public contracts are lawful – i.e. to progress through to a determination of the claimant’s claim to see if the procurement process was flawed or not) (b) avoiding the public purse having to pay twice (once to the successful bidder and again to the claimant in damages).  Mere financial improvements and efficiency, on their own, may well not be enough as the claimant can offer to compensate these through a cross-undertaking in damages if the claimant loses at trial.  Authorities will need to provide clear evidence of wider benefits to the public and service users of being able to enter into the contract, or harm if the contract is delayed, beyond just financial consequences. The extent to which the authority is able to recruit the winning bidder to submit its own evidence as to the harm suffered by the winning bidder as a consequence of the suspension continuing may also be relevant.