The judgment of His Honour Judge Keyser KC in Parkingeye Limited v Velindre University NHS Trust [2026] EWHC 1019 (TCC) is the much anticipated first application of the test for lifting the automatic suspension in section 102 of the Procurement Act 2023. It arose in a challenge to the award of a contract for car park management services at Welsh hospitals.
The English courts have, to date, applied the American Cyanamid test for interim injunctions to applications to lift the automatic suspension. However, section 102 introduced a specific test, providing that in deciding the application to lift, 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.”
“The public interest will generally tend in favour of keeping the suspension in place“
Interpretation of Section 102
On the interpretation of the test, the Court held as follows:
The new test in s.102 “is intended to be substantively and not merely formally very different” from the American Cyanamid test [30]
The weight to be afforded to each of the matters identified in s.102 “will be for the court to decide on the facts of each particular case” [29]
“[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” [31]
On the first example in s.102(2)(a) (that public contracts should be awarded in accordance with the law), this recognises “a public interest that, where the lawfulness of an award of a contract is disputed, the contract should not be awarded until that dispute has been determined” [31]
“The second example of public interest (delay in supply) focuses precisely on delay in achieving the supply of goods and services, not on the desirability of alternative sources of supply … [The] particular instances of public interest identified in the parenthesis in section 102(2)(a)(ii) are of serious matters, such as interference with defence or security or the interruption of public services, rather than merely a public interest in contracting authorities acting in accordance with their own judgement as to where their and the public’s advantage lies … section 102(2)(a)(ii) directs the primary focus to the substantial deprivation of services.”
Summary of the Test
At [36], the following synthesis of the test was set out:
“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 judgement 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.”
Application of the Test in this Case
In deciding to maintain the suspension, a key factor was that there was no question of the parking services not being provided. The incumbent’s contract could be extended. Arguments about enhancements from the new contract were unconvincing and a substantive judgment could be expected by year-end. The following summarises the analysis of the Court:
The specific public interest referenced in s.102(2)(ii) – avoiding delay – is not concerned with delay in implementing improvements that may be brought about by the new contract. It is concerned with situations where “the provision of public services is delayed or interrupted” ([64]). There was no question to an interruption of parking management services in this case.
While there was a public interest in allowing a contract with enhanced benefits to be concluded, it did not have much weight where the services would continue to be provided; the level of benefit from the new contract would be modest; and those benefits could largely be achieved while the suspension was in place (with enhancements offered by the incumbent).
No weight given to the argument that further extensions of the incumbent’s contract could itself be unlawful and open to challenge [67]
Damages were not inadequate for the claimant and the fact that it had not claimed damages was not relevant (an amendment could be sought) [70]. There was no evidence that the contract was particularly prestigious or that the claimant would suffer reputational damage from its loss [76].
Although the claim was “scatter-gun” and the defence raised serious limitation arguments, the merits were not relevant [80]
It was optimistic to expect a substantive judgment by the end of October, but the end of the year was achievable [83]
Summing up: “The important consideration, in my view, is that this is not a case in which vital interests (such as defence or security) are engaged or in which the continued supply of public services is under threat” [83]
Undertaking in damages was provided by the claimant to the defendants and the winning bidder [84]
