Parkingeye Limited v Velindre University NHS Trust & Anor
| Judge | His Honour Judge Keyser KC |
| Judgment | 1 May 2026 |
| Jurisdiction | England & Wales |
| Claimant | Parkingeye Limited |
| Defendant | Velindre University NHS Trust & Anor |
Summary
Two NHS bodies had run a procurement for car park management services and decided to award the contract to a new provider. The incumbent challenged the award, which triggered an automatic suspension preventing the authorities from signing the contract. The authorities applied to lift the suspension so they could proceed.
This was one of the first applications to lift an automatic suspension under the Procurement Act 2023, which replaced the earlier procurement regime. The authorities said the suspension should be lifted on the familiar balance of convenience approach; the incumbent said the new statutory test gave greater weight to the public interest in a lawful award.
His Honour Judge Keyser KC refused to lift the suspension. The new test is designed to ensure proper weight is given to the public interest in public contracts being awarded lawfully, so the court should not too lightly lift a suspension. Nothing on the facts outweighed that interest.
Background and facts
Velindre University NHS Trust and Cardiff and Vale University Health Board ran a procurement for car park management services and decided to award the contract to National Parking Control Group. The claimant, ParkingEye, was the incumbent provider for the health board.
ParkingEye challenged the award decision during the standstill period. Under section 101(1) of the Procurement Act 2023, that challenge imposed an automatic suspension preventing the authorities from entering into the contract. The authorities applied under section 102(2) of the Act for an order lifting the suspension.
The issue
The question was how the court should decide an application to lift the automatic suspension under the new Act, and whether the suspension should be lifted here. The authorities argued for the approach developed under the previous regime; the incumbent said the new statutory test changed the exercise.
The decision
His Honour Judge Keyser KC refused the applications. He held that the new test in the Act displaces the familiar approach used under the old rules.
Under the previous regime the court applied the balance of convenience test drawn from American Cyanamid Co v Ethicon Ltd [1975] AC 396, as applied in the procurement context in Camelot UK Lotteries Limited v The Gambling Commission [2022] EWHC 1664 (TCC). On that approach, a finding that damages would be an adequate remedy for the claimant would usually lead to the suspension being lifted.
The Act now directs the court, under section 102(2), to have regard to the public interest, including the principle that public contracts should be awarded in accordance with the law, and to the interests of suppliers and others. The judge read that as a deliberate shift:
"the statutory suspension and the new test for applications to lift the suspension are clearly intended to ensure that proper weight is given to the public interest in ensuring that public contracts are awarded in accordance with the law and that, accordingly, the courts do not too lightly lift the suspensions."His Honour Judge Keyser KC, paragraph 85
On the facts, nothing about the wider public interest or the interests of third parties outweighed the public interest in a lawful award. He refused to lift the suspension, and exacted an undertaking in damages from the incumbent in the form used for interim injunctions:
"I shall refuse the applications to lift the suspension."His Honour Judge Keyser KC, paragraph 85
Practical implications
The ground has shifted for challenges to public contract awards. Under the new Act, a contracting authority can no longer expect to lift an automatic suspension simply by showing that damages would be an adequate remedy for the disappointed bidder. The statutory test puts the public interest in lawful procurement at the front, and the court will not lift a suspension too readily.
For a disappointed bidder, the suspension is now a stronger tool. Issuing a challenge during the standstill period freezes the award, and keeping that freeze in place is easier than it was, because the authority must overcome the public interest in a lawful award rather than rely on the old balance of convenience. That said, the price of holding the suspension is an undertaking in damages, so a bidder must be able to meet the authority's losses if the challenge ultimately fails.
For a contracting authority, an application to lift now needs to be built on the specific public interest in getting on with this contract, such as avoiding delay in the continuing provision of a public service, rather than on the adequacy of damages. Evidence about the concrete harm of the delay, and about the weakness of the challenge, will carry more weight than the old adequacy analysis.
The timing discipline still matters. Both sides should prepare for an early application and be ready to address the likely course of the litigation, including case management and trial timing, because how quickly the substantive challenge can be resolved feeds into the balance the court now strikes.
Practice points
- Under the Procurement Act 2023, the test for lifting an automatic suspension is the statutory test in section 102(2), not the old American Cyanamid balance of convenience; the court will not lift a suspension too lightly.
- A contracting authority can no longer expect to lift a suspension merely by showing damages would be an adequate remedy for the bidder; it must address the public interest, including any delay to a public service.
- A challenge issued in the standstill period is a stronger tool for a disappointed bidder, but holding the suspension comes at the price of an undertaking in damages.
- Both sides should prepare for an early application and be ready to address the likely course and timing of the substantive challenge, which feeds into the balance the court strikes.