Cubic Transportation Systems Limited v Transport for London & Anor

Summary

After a transport authority succeeded in lifting the automatic suspension in a procurement challenge, it and the winning bidder both applied for their costs of that application. This ruling dealt with how much the losing challenger had to pay on account, and whether the winning bidder could recover its costs of taking part.

The challenger accepted it should pay the authority's costs but disputed the amount to be paid on account. The winning bidder, an interested party, sought its own costs of participating.

Mr Roger ter Haar KC ordered the challenger to pay 60 per cent of the authority's costs on account and reserved the interested party's costs to the trial judge, because it was too early to decide whether the winning bidder was entitled to costs for its role.

Background and facts

Cubic Transportation Systems challenged Transport for London's award of a revenue collection contract to Indra. The authority applied to lift the automatic suspension and succeeded. This later ruling, decided on the papers, dealt with the costs of that application.

The challenger accepted that it should pay the authority's costs of the application to lift the suspension and of the challenger's own application for an expedited trial, to be assessed if not agreed. The dispute was about the payment on account.

The issue

Two questions arose. First, how much the challenger should pay the authority on account of costs that would be assessed later. Second, whether the winning bidder, as an interested party, was entitled to recover its costs of participating in the application.

The decision

On the payment on account, the authority's costs to be assessed were 1,201,444.75 pounds, and it sought 60 per cent on account. The challenger argued for a conservative figure of no more than 300,000 pounds, on the basis that the court should not order more than the authority was likely to recover on assessment. The judge accepted that approach in principle but was satisfied that the higher figure would be recovered, noting the value and complexity of the dispute and that the challenger's own costs were of a similar order:

"I have no doubt that on the detailed assessment TfL will recover at least £720,866.85. Accordingly, I order a payment on account in that amount."Mr Roger ter Haar KC, paragraph 14

On the interested party's costs, the winning bidder sought 233,599 pounds. The judge applied the principles for interested party costs in procurement challenges set out by Fraser J in Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 640 (TCC): winning the bid does not by itself entitle an interested party to its costs, and it must generally show a separate issue on which it was entitled to be heard, or an interest requiring separate representation.

The bidder's costs appeared to include work unrelated to the application and looked high for what had been a watching role. Rather than decide the principle then, the judge reserved the question:

"I do not think it would be right for me at this stage to decide whether in principle Indra is entitled to any order for costs of participation in these proceedings."Mr Roger ter Haar KC, paragraph 21

The interested party's costs application was reserved to the trial judge, to be decided once the role the bidder had played was clear.

Practical implications

A payment on account is a conservative estimate, not the full claim. The court will order a sum it is satisfied the receiving party will recover on assessment, and it can cross-check the figure against the complexity of the dispute and the paying party's own costs. A receiving party seeking a high percentage should give enough information to justify it, because the court errs on the side of caution where the material is thin.

A winning bidder does not recover its costs just for turning up. To claim costs as an interested party in a procurement challenge, the bidder must show a separate issue on which it was entitled to be heard, or a distinct interest needing separate representation, beyond the authority's own defence. Costs for a watching brief are hard to justify.

An interested party should keep its costs separate and referable to a real role. Where a bidder's costs schedule sweeps in work unrelated to the application, the court will be sceptical, and may reserve the question to the trial judge who can see what the bidder actually contributed. Bidders who wish to recover costs should be ready to identify the distinct issues they addressed.

Cubic Transportation Systems Limited v Transport for London and Transport Trading Limited [2026] EWHC 211 (TCC), Technology and Construction Court, Mr Roger ter Haar KC sitting as a Deputy Judge of the High Court. Decision on the papers, handed down 5 February 2026.