On 1 May 2026, the High Court refused an application to lift the automatic suspension under section 102(2) of the Procurement Act 2023 (The Act). The decision in the case of Parkingeye Limited v Velindre University NHS Trust & Anor [2026] EWHC 1019 (TCC) is the first to consider the new statutory test and seemingly signals a significant shift from the approach taken under the Public Contracts Regulations 2015 (PCR 2015).  

The background 

Parkingeye Limited (Parkingeye), the incumbent provider of car park management services for Velindre University NHS Trust and Cardiff and Vale University Health Board, was unsuccessful in its bid to secure a new five-year concession contract following a competitive tender exercise. 

During the extended standstill period, Parkingeye commenced a claim under the Act to challenge the decision to award the contract to the winning bidder, National Parking Control Group.

In accordance with section 101(1), upon starting proceedings in the applicable standstill period, an automatic suspension was invoked, precluding the contracting authorities from entering into the contract with their preferred bidder. They subsequently made an order for an application to lift that automatic suspension. In considering this, the Court applied, for the first time, the new statutory test as set out in section 102(2) of the Act.

From American Cyanamid  to section 102(2): what has changed?  

Where a claim is issued under the PCR 2015, applications to lift an automatic suspension are determined using the well-established American Cyanamid principles (used when considering interim injunctions). In such circumstances, the Court considers: 

1. Whether there is a serious issue to be tried; 
2. If so, whether damages would be an adequate remedy for the claimant if the suspension were lifted and it succeeded at trial; 
3. If not, whether damages would be an adequate remedy for the defendant(s) if the suspension remained in place and they succeeded at trial; and 
4. Where there is doubt as to the adequacy of damages for either of the parties, which course of action is likely to carry the least risk of injustice if it transpires that it was wrong, that is, where does the balance of convenience lie? 

Importantly, if the Court concludes that (a) there is no serious issue to be tried, or (b) damages would be adequate remedy for the claimant, the automatic suspension will be lifted. It will not be necessary to consider the balance of convenience.  

In the case of Parkingeye, the Judge confirmed that the position under the Act is different, describing the new test as one which “speaks for itself”. He added that the test under section 102(2) is “intended to be substantively and not merely formally very different, in both its method and its effect” to the test applied under the PCR 2015. 

In summary, section 102(2) of the Act invites the court to find the balance between and give regard to:  

• The public interest; 

• The interest of suppliers (including whether damages are an adequate remedy for the claimant); and  

• Any other matters the court considers appropriate. 

As put by the Judge, both public and private interests are now “at the heart of the new test”.  

Damages vs public interest: a new balancing act  

Under the PCR 2015 and guided by the principles of American Cyanamid, the Court frequently concludes that damages are an adequate remedy for claimants, subsequently leading to suspensions being lifted. 

However, the Court in Parkingeye made it clear that under section 102(2) of the Act, the American Cyanmid approach is “no longer in operation” and that damages are simply one of several factors which the court must consider. The structure of the new test allows the public interest considerations to be a central part of the Court’s analysis. 

The Court emphasised that an application to lift an automatic suspension will generally require “the presence of either a very persuasive countervailing public interest or some overriding matter of private interest”. 

Indeed, the Judge stated: “public interest will generally tend in favour of keeping the suspension in place”.  

The Court in Parkingeye accepted that damages were an adequate remedy for the claimant. It also accepted that entering into the new contract would deliver genuine benefits. However, despite both of those conclusions, it was not persuaded that those benefits provided sufficient reason “to outweigh the public interest to which the suspension is intended to give effect”.  

It concluded that the automatic suspension should remain in place. 

Capsticks’ view  

The decision suggests that contracting authorities may well face a greater burden to justify the lifting of the automatic suspension under the Act. Thought may have to be given as to whether to make an application at all. 

The fallout could be an increase in challenges by claimants who are often motivated by the prospect of being awarded the contract (rather than being awarded damages) – and in the case of challengers which are incumbents, the prospect of delaying contract award in order to benefit from extensions to their current contracts while the litigation proceeds (it can often take well over 12 months for a claim to proceed to trial following a failed application to lift the automatic suspension, particularly if expedition of the proceedings is not ordered).  

However, it must be remembered that this is only one case, and it is likely that the position will become clearer over the next few months as the Court considers more and more of these applications under the Act. It is also worth bearing in mind that such applications are fact specific. Where contracting authorities can demonstrate genuine and significant public interest in awarding the contract, lifting the automatic suspension will be more likely. Therefore, the importance of the evidence submitted on that point cannot be underestimated.   

How Capsticks can help 

Our procurement team has extensive experience advising across all aspects of public procurement, from structuring a process, options appraisals, implementation and conduct of procurement processes, to defending and bringing procurement challenges for contracting authorities and bidders. We act for both contracting authorities and bidders, which means we always advise in the context of understanding both perspectives. 

This article was co-authored by Principal Associate Ciaran Wells and Trainee Solicitor Lauren Atwell-Thomas. If you are interested in how we may be able to support your organisation in light of this judgment, please contact one of our procurement specialists: Partner and Head of Public Procurement Mary Mundy, Partner Tim Dennis, Partner Ruth Yates or Principal Associate Ciaran Wells.