Cubic Transportation Systems Limited v Transport for London & Anor
| Judge | Mr Roger ter Haar KC (sitting as a Deputy High Court Judge) |
| Judgment | 15 January 2026 |
| Jurisdiction | England & Wales |
| Claimant | Cubic Transportation Systems Limited |
| Defendant | Transport for London & Anor |
Summary
Transport for London ran a procurement for a revenue collection contract and decided to award it to a rival bidder. The unsuccessful bidder challenged the award, which automatically suspended the authority from signing the contract. The authority applied to lift that suspension.
The bidder wanted the suspension kept in place until trial. The authority said the delay would harm its passengers and the running of its fare collection system, which damages could not put right.
Mr Roger ter Haar KC lifted the suspension. There was a serious issue to be tried, but damages would be an adequate remedy for the bidder if it succeeded, whereas damages would not compensate the authority for a delay that would disadvantage its passengers, and the balance of convenience favoured letting the contract proceed.
Background and facts
Transport for London procured a contract for revenue collection services, known as the Proteus Contract. Cubic Transportation Systems was the unsuccessful tenderer, and the contract was to be awarded to another bidder, Indra.
Cubic's challenge triggered the automatic suspension under the Public Contracts Regulations 2015, preventing the authority from entering into the contract. The authority applied to lift the suspension so that it could proceed with the new arrangement.
The issue
The procurement was governed by the 2015 Regulations, so the court applied the balance of convenience test drawn from American Cyanamid. The questions were whether there was a serious issue to be tried, whether damages would be an adequate remedy for the bidder and for the authority, and where the balance of convenience lay.
The decision
Mr Roger ter Haar KC lifted the suspension. There was a serious issue to be tried, but the bidder's loss could be measured in money:
"if CTSL establishes its claim, damages would be an adequate remedy for CTSL."Mr Roger ter Haar KC, paragraph 62
The position of the authority was different, because the harm of keeping the suspension in place fell on the travelling public and the operation of the fare collection system, not on the authority's pocket:
"the delay caused by awaiting a trial in this matter is liable to disadvantage TfL's passengers in a way that cannot be compensated by damages."Mr Roger ter Haar KC, paragraph 78
That answered the balance of convenience in the authority's favour: the bidder had an adequate remedy in damages if a breach were established, whereas the delay to the contract would cause the authority a harm that money could not repair. He concluded that the suspension should be lifted.
Practical implications
Where a suspended contract underpins a public service, the authority holds a strong card. The harm from delay is not the authority's own financial loss but the disruption to the service and its users, and the court will treat that as a harm damages cannot repair. An authority making this argument should put in evidence of the concrete effect of delay on the service and its users, rather than a general assertion that the contract matters.
A commercial bidder whose loss is the value of the contract will usually be held to have an adequate remedy in damages. That finding is often decisive under the 2015 Regulations, because it means the bidder can be justly confined to a damages claim and the suspension lifted. A bidder that wants the suspension maintained needs a reason why damages would not make it whole, beyond the lost profit on the contract.
The regime still matters. This procurement was under the 2015 Regulations, so the outcome followed the balance of convenience. A procurement begun under the Procurement Act 2023 is judged on the different statutory test, which gives more weight to the public interest in a lawful award, so the same facts could produce a different result. Confirm which regime governs before advising on the prospects.
Both sides should be realistic about timing. The length of time the suspension would run until trial fed into the balance the court struck, so evidence about listing and the likely trial date is worth preparing early.
Practice points
- Under the Public Contracts Regulations 2015, the court applies the American Cyanamid balance of convenience, and a finding that damages are adequate for the bidder usually leads to the suspension being lifted.
- Where a suspended contract supports a public service, the authority can show that delay would harm the service and its users in a way damages cannot repair; support this with concrete evidence of the effect of delay.
- A bidder whose loss is the value of the contract will usually be treated as adequately compensated by damages; to keep the suspension it must show why damages would not make it whole.
- Check whether the procurement is under the 2015 Regulations or the Procurement Act 2023, because the test and the likely outcome differ.