In his judgment in ParkingEye Limited v (1) Velindre University NHS Trust and (2) Cardiff and Vale University Health Board, HHJ Keyser concluded: “In my judgment, 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.”
This judgment marks a radical shift from the test applied under the previous set of rules, which gave overriding weight to the question of whether or not damages would be an adequate remedy for the challenger. In this case, the Court held that damages would be an adequate remedy for the Claimant but refused to lift the suspension because the Defendants had not evidenced a persuasive countervailing public interest or some overriding matter of private interest that justified the lifting of the suspension.
Facts
The claim involves a challenge to a procurement for the supply of car park management services at numerous different NHS sites operated by Cardiff and Vale University Health Board (“CVUHB”) by the incumbent service provider.
The outcome of the procurement was initially announced late in December 2025, with updated Assessment Summaries and an updated Contract Award Notice published in late January 2026. Claims challenging the decisions set out in both sets of Assessment Summaries and Contract Award Notices were issued within the relevant standstill periods, thereby triggering the automatic suspension of the award process under Section 101 PA23.
An application to lift the suspension was issued in both claims on 20 March 2026, in which the Defendants argued that the Claimant could be adequately compensated by an award of damages if the suspension was lifted and the claim succeeded at trial, whereas maintaining the suspension would delay the introduction of significant benefits for staff, patients and visitors at the various NHS sites covered by the new contract. The Defendants also argued that maintaining the suspension would delay the realisation of significant revenues for CVUHB, which would be reinvested into health care services, and that further extensions to the current contract to ensure service continuity during the period of the suspension would give rise to the risk of further challenges.
The Claimant's primary submission was that the question of adequacy of damages was no longer determinative, or one of an overriding nature, when considering whether or not to lift the suspension. Instead, the Court should give significant weight to the public interest in upholding the principle that public contracts should be awarded in accordance with the law, with the result that the suspension should be maintained unless there are very significant countervailing factors (such as issues of national security or disruption to key public services). The Claimant also argued that if the suspension was lifted, it could not be adequately compensated by an award of damages because (i) it had not claimed damages (its claim was limited to declaratory relief and an order setting aside the award decision); (ii) damages would be impossible to quantify accurately given the nature of the breaches; and (iii) it would suffer reputational damage if the contract was awarded to the successful tenderer.
The Court’s decision
HHJ Keyser accepted that the new test under Section 102 of PA23 was significantly different to the American Cyanamid test: “… several matters would seem to provide a clear indication that the new test is intended to be substantively and not merely formally very different, in both its method and its effect, from the former test as found in regulation 96(2) of the Public Contracts Regulations 2015.”
He went on to articulate the test as follows:
“In conclusion, my view as to the statutory test is as set out in paragraphs 28 to 31 above. I may summarise it as follows.
- 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.
- The weight to be afforded to the several factors is a matter for the court in each particular case.
- 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.
- 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.
- 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.”
Applying these principles, HHJ Keyser concluded that damages would be an adequate remedy for the Claimant, there would be no difficulty in quantifying damages, and no reputational damage would be suffered if the suspension was lifted and the contract was awarded to the successful tenderer. However, he also concluded that this is no longer determinative under the Section 102 test.
The Judge confirmed that in his judgment “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”. He concluded that although the new contract might deliver some benefits, “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”. As such, the applications were dismissed and the suspensions maintained.
Comment
This is the first time a Court has considered the test for lifting the suspension under Section 102 of the Procurement Act 2023. It suggests a real sea-change in approach, moving away from the current test which gives overwhelming weight to the question of adequacy of damages for the Claimant, which can make it virtually impossible for suppliers to resist an application to lift the suspension in the vast majority of cases.
Although the judgment expressly states that there is no presumption that the suspension should now be maintained, it would appear that the onus may now be on contracting authorities to demonstrate the presence of either a very persuasive countervailing public interest or some overriding matter of private interest to justify the lifting of the suspension.
It will be interesting to see if this new emphasis is accepted by the Courts going forwards, or whether the Courts revert to giving greater weight to factors linked to delay to the delivery of potential benefits deriving from new contracts and/or the adequacy of damages for Claimants.
DWF Law LLP acted for the successful Claimants in this case, alongside Stephen Kosmin and Oliver Jackson of 11 KBW. A copy of the judgment can be found here.
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