Cubic Transportation Systems Limited v Transport for London and Transport Trading Limited [2026] EWHC 211 (TCC)

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Cubic Transportation Systems Limited v Transport for London and Transport Trading Limited

[2026] EWHC 211 (TCC) | High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court (KBD)

Before Mr Roger ter Haar KC sitting as a Deputy High Court Judge | Heard Decision on the papers | Handed down 5 February 2026

Interactive Process Flow | Costs after lifting the procurement suspension

Case Analysis Process Flow

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1. Case Overview

Case: Cubic Transportation Systems Limited v Transport for London and Transport Trading Limited [2026] EWHC 211 (TCC)
Court: High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court (KBD)
Judge: Mr Roger ter Haar KC sitting as a Deputy High Court Judge
Hearing Date: Decision on the papers
Judgment Date: 5 February 2026
Case No: HT-2025-000238

After Transport for London succeeded in lifting the automatic suspension on award of the Proteus revenue-collection contract, it and the winning bidder, Indra Sistemas S.A., sought their costs from the unsuccessful tenderer, Cubic Transportation Systems Limited. Cubic accepted liability for TfL's costs and a payment on account but disputed the amount. It opposed Indra's costs in principle. The court ordered £720,866.85 on account to TfL and reserved Indra's application to the trial judge (paragraphs 1-24).

Central Legal Test: The court had to make a cautious estimate of the minimum costs TfL would recover on detailed assessment. For the interested party, it applied the rule that participation or winning-bidder status does not itself create a costs entitlement: a distinct issue, separate interest or unusual feature is ordinarily required (paragraphs 7-23).

Parties and Representation

Claimant: Cubic Transportation Systems Limited, represented by Sarah Hannaford KC, Sir James Eadie KC, George Molyneaux and Courtney Burrell-Eade, instructed by DLA Piper UK LLP.

Defendants: Transport for London and Transport Trading Limited, represented by Valentina Sloane KC, Patrick Halliday and Oliver Jackson, instructed by Herbert Smith Freehills Kramer LLP.

Interested Party: Indra Sistemas S.A., represented by Squire Patton Boggs (UK) Limited.

Underlying Procurement

Cubic challenged TfL's procurement of the Proteus revenue-collection services contract. Indra was the only other tenderer and the successful bidder. TfL obtained an order lifting the automatic suspension on 15 January 2026 (paragraphs 1-3).

Costs Applications

TfL claimed £1,201,444.75 and sought 60 per cent on account. Indra claimed £233,599. Cubic proposed no more than £300,000 for TfL and no costs order for Indra (paragraphs 4-23).

2. Procedural History

TfL Costs Agreed in Principle

Cubic accepted that it should pay TfL's costs of the lifting application and its own expedited-trial application, subject to detailed assessment if not agreed (paragraphs 4-6).

Case Management

The parties were directed to arrange a half-day case management conference on the first convenient date after 1 April 2026 (paragraph 24).

3. Defendant's Position

TfL said its heavy one-day application generated £1,201,444.75 in costs and sought £720,866.85 on account. Indra sought £233,599 for its participation (paragraphs 7 and 15).

TfL's Scale of Work

TfL relied on the high-value procurement, extensive witness evidence and documents, and the complexity reflected in the large counsel teams. Cubic's own costs were estimated at £1,182,020.75 (paragraphs 7-14).

Indra's Participation

Indra had submitted evidence but made no written or oral submissions at the lifting hearing. Its statement appeared to include work extending beyond that application (paragraphs 15-23).

4. Claimant's Position

Cubic accepted a payment on account to TfL but said the court lacked adequate detail to support 60 per cent and should award no more than £300,000. It said Indra had no separate issue or interest justifying costs (paragraphs 8-11 and 18-19).

Caution on Account

Cubic said there is no fixed percentage and the court should consider proportionality, the claimed total and the quality of the receiving party's information before estimating the recoverable minimum (paragraphs 8-12).

No Present Indra Entitlement

Cubic argued that Indra's interests aligned entirely with TfL, its contribution was minimal and interested-party status did not automatically carry a costs order (paragraphs 16-20).

5. Court's Analysis

TfL Would Recover at Least the Requested Sum

Despite the single hearing day, the project value, evidence volume, complexity and comparable scale of Cubic's own costs satisfied the court that detailed assessment would yield at least £720,866.85 (paragraphs 12-14).

Interested-Party Costs Are Discretionary

A winning bidder ordinarily needs a separate issue, distinct interest or unusual feature to recover. Permission to participate does not itself establish entitlement (paragraphs 16-17).

Indra Decision Needed the Full Picture

The court could not yet assess Indra's role across the proceedings or isolate costs attributable to the lifting application. Entitlement and amount were therefore reserved to the trial judge (paragraphs 18-23).

6. Decision and Outcome

Winner: The Defendants on costs account (Transport for London and Transport Trading Limited) succeeded.

Result: Cubic was ordered to pay TfL's relevant costs, subject to detailed assessment, and £720,866.85 on account. Indra's costs application was reserved to the trial judge (paragraphs 6, 14 and 21-23). The Claimant (Cubic Transportation Systems Limited) did not succeed on this application.

Practical Effect: TfL received immediate partial costs recovery while the balance proceeded to assessment. Indra obtained no present order and would need to justify its distinct contribution once the full procurement dispute had been resolved.

TfL Costs Order

TfL obtained its costs of the lifting and expedition applications, to be assessed if not agreed (paragraph 6).

£720,866.85 on Account

The court awarded TfL the full 60 per cent payment requested (paragraphs 7-14).

Indra Reserved

The trial judge would decide whether Indra should recover and whether its lifting-application work should be included (paragraphs 15-23).

7. Key Legal Principles and Practice Points

Payment on Account

The court should award a sum it can confidently regard as no more than the minimum likely recovery on assessment, using the available cost information and case context (paragraphs 7-14).

No Fixed Percentage

The proper account payment depends on the claimed level, proportionality and evidential quality, not a standard percentage (paragraphs 9-12).

Interested-Party Costs

Winning-bidder or interested-party status does not automatically justify costs. Separate representation must ordinarily answer a distinct issue or interest, subject to unusual case features (paragraphs 16-17).

Practice Implications

For Claimants:
When resisting a payment on account, identify concrete duplication, rates, hours or proportionality points. For interested-party costs, compare its evidence and submissions with the authority's work and isolate duplication.

For Defendants:
Support an account request with enough detail to show the minimum recoverable amount, even where a full assessment awaits. Explain why the evidence volume and staffing were reasonable for the application.

General Practice Points:
A successful bidder should obtain a case-management order defining its permitted role and keep time records by issue and hearing. That record is needed later to show what work was distinct from the contracting authority's defence.

Legal Disclaimer

This interactive process flow is provided for educational and professional development purposes only and does not constitute legal advice. The content reflects interpretations and analyses that may not apply to specific circumstances. Contract interpretation depends on specific wording, jurisdiction, and factual context. Always consult qualified legal professionals before making decisions based on this content. SCCSI and its contributors accept no liability for reliance on this material.