Parkingeye Limited v Velindre University NHS Trust: The first judgment under the Procurement Act 2023

On 1 May 2026, the Technology and Construction Court handed down its judgment in Parkingeye Limited v Velindre University NHS Trust and another [2026] EWHC 1019 (TCC) (full judgment available here).  HHJ Keyser KC refused to lift the automatic suspension preventing the defendants from concluding a contract for car park management services. As the first judgment under the Procurement Act 2023 (the "PA23") it indicates a potentially significant departure from the previous regime, both specifically as regards the relevant test for a lifting application but also more broadly in terms of the PA23 regime being substantively different to the previous EU-based regime.  

Background

The case concerned a procurement for car park management services. The claimant, Parkingeye Limited, was the incumbent provider of those services and an unsuccessful bidder as part of this re-procurement. 

Parkingeye challenged the outcome of the procurement process -  raising a wide range of concerns about the lawfulness of the procurement. These concerns cover a wide range of topics, including:

• alleged errors in fact in the tender notice and contract award notice for the procurement, including the identity of the contracting authority and the type and value of the contract;
• the transparency of the evaluation process, and whether it aligned with the procurement documents;
• alleged unequal treatment in evaluation, including evaluating tenders by reference to unclear or undisclosed criteria; and
• concerns about deficient record-keeping on the part of the evaluators, asserting that the evaluation records did not provide a proper basis for the scores set out in the assessment summaries. 

Automatic suspension

As under the previous procurement regime, the PA23 provides for an “automatic suspension” precluding the contracting authority from entering into the contract. Under the previous regime proceedings had to be issued before the contract was signed; now, proceedings must be issued during the standstill period set out in the contract award notice.

By preventing the contracting authority from entering into the contract, the automatic suspension protects the claimant's opportunity to have the procurement decision set aside— a remedy that is only available before the contract has been concluded. Once the contract has been entered into, only post-contractual remedies (principally damages) are available.

As under the previous regime, the contracting authority can apply to the court to lift or modify the suspension. This is what happened in this case, where the NHS Trusts sought for the suspension to be lifted.

The relevant test for lifting

The Parkingeye judgment therefore centres on the test which the court must apply in deciding whether to make an order to lift the automatic suspension – which is set out in section 102(2) of the PA23.

Under the previous regime, applications to lift the automatic suspension were decided by reference to the test for interim injunctions established by the House of Lords in American Cyanamid Co. v Ethicon Ltd [1975] AC 396. That test involved a staged analysis: the court first considered whether there was a serious issue to be tried, then whether damages would be an adequate remedy for the claimant, and only if damages were not deemed an adequate remedy did the court go on to consider the balance of convenience (including the public interest). In practice, this meant that a finding that the claimant could be adequately compensated by damages — which was often the case, would be determinative, and the suspension would be lifted. The balancing of convenience and public interest test would frequently not fall for consideration at all.

The PA23 replaces American Cyanamid with a new, procurement-specific test. Section 102(2) requires the court to have regard to three matters: 

1. the public interest, including the principle that public contracts should be awarded in accordance with the law and the avoidance of delay in the supply of goods, services or works; 
2. the interests of suppliers, including whether damages are an adequate remedy for the claimant; and 
3. any other matters the court considers appropriate. 

The court concluded 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”. (at para. 30) 

Several features of the new test were identified as significant. First, the adequacy of damages is no longer a threshold question capable of determining the application on its own - it is simply one factor to be weighed in the balance. Second, the court’s view was that public interest is given express prominence: it appears first in the statutory text, and — unlike under the American Cyanamid framework — must be considered in every case. 

On the adequacy of damages, the court was clear that “the adequacy of damages for the claimant, though still a relevant matter, no longer has the significance it had under the American Cyanamid test”. (at para. 36)

On the role of the public interest, the court observed:

"To put the matter very shortly, the text seems to me to show that the public interest will generally tend in favour of keeping the suspension in place, although on the facts of particular cases it may weigh differently." (at para. 31)

This represents a significant departure from the approach taken under the previous regime – where the automatic suspension was lifted more often than not. Under the new test, the court's starting point is different – and in this case that affected the outcome.

The overall effect in this case was to shift the balance firmly in favour of maintaining the suspension:

"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." (at para. 85)

Interpreting the PA23

Another interesting factor to consider is how the court in this case considered and weighed up different materials when determining how to interpret and apply section 102(2) of the PA23. The judgment considers a range of different sources, and gave some insight into what role each played in statutory interpretation.

• The PA23 itself clearly is the primary authority and, as outlined above, this judgement places weight on the drafting of the PA23, including the ordering of factors listed in section 102(2).
• The Public Contracts Regulations 2015 and associated caselaw are referred to in the judgment (citing the provisions on the automatic suspension and the American Cyanamid  test) but only to conclude that “section 102(2) of the 2023 Act establishes a different test for the lifting of the suspension. In general terms, the new test speaks for itself.” (at para. 25)
• Principles of statutory interpretation show that a section must be interpreted in the context of the PA23 as a whole – the court found that section 12 of the PA23 (the objectives of covered procurement) to be “the most important textual context.” (at para. 27)
• The Transforming Public Procurement Green Paper, the subsequent Government Response to Consultation and the Explanatory Notes to the PA23 were cited as a secondary material which confirmed the court’s views as to the interpretation of section 102(2).
• Cabinet Office Guidance “has no statutory authority and cannot be taken to demonstrate the intention of Parliament. However, it is capable of being of some persuasive authority.” (at para. 35)

Key takeaways 

Firstly, this judgment demonstrates that the new statutory test for lifting the automatic suspension is substantively different from the American Cyanamid test, indicating that it may be more difficult for authorities now to be successful with a lifting application.

Secondly, as the first judgment to have considered the new PA23 regime, the judgment indicates that the courts view this as a substantively different regime to the previous regime, to be interpreted and applied as principally a UK piece of legislation and not in any way hard-wired to the previous EU-based regime.  

Readers should note though, that the judgement refers to the contracting authorities having made an application for permission to appeal, and so this judgment may not be the final word in this case.