Suspension Upheld: Why all procurement professionals should be looking at Parkingeye Limited v Velindre

Summary

On 1 May 2026, the Court handed down its first ever judgment on ‘suspension lifting’ under the Procurement Act 2023 (the “Act”). Parkingeye Limited v Velindre University NHS Trust & Anor [2026] EWHC 1019 (TCC)

The Court stated 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”, and then went on to analyse each factor in the new test and how it is different from the previous test.  The new test under section 102(2) of the Procurement Act is here.

The insights offered by this first judgment into the new method and effect of the test will be essential reading for all those considering the prospects that an ‘automatic suspension’ under the Act may be upheld or lifted, including for:

1. Claimants considering whether to file a claim during the standstill period and invoke the automatic suspension;
2. Defendants considering their prospects of success when making an application to lift the automatic suspension;
3. Claimants who have challenged within the standstill and triggered the automatic suspension, the prospects of success in resisting an application to lift – i.e. the prospects of keeping the suspension in place until trial and judgment; and
4. in all cases, the kind of evidence that might carry weight and/or be determinative when the Court comes to apply this new test.

Summary of why the new test is different

In this judgment, the Court (HHJ Keyser KC):

[1] stated 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” 

[2] Explained why the test was different in both method and effect, in particular because:

1. The ‘public interest’ factor (which must be considered in every case) now has parity with other factors (although its weight in each case will be a matter for the Court);
2. The way the new ‘public interest’ factor is worded “seems to me to show that the public interest will generally tend in favour of keeping the suspension in place”;
3. One of the reasons for [b] above is that the Section 102(2)(a)(i) limb of the public interest test (“upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law”) should, said the Court, be read “recognising a public interest that, where the lawfulness of an award of a contract is disputed, the contract should not be awarded until that dispute has been determined”;
4. Another reason: Section 102(2)(a)(ii) before the ‘examples’ (see above) should be read as “focus[sing] precisely on delay in achieving the supply… not on the desirability of alternative sources” – i.e. focussing on the extent to which ‘public interest’ would be affected by a delay (or not) rather than the desirability of a particular replacement contract / the preferred bidder’s proposals.
5. Adding to this: the  ‘examples’ in Section 102(2)(a)(ii) of "defence or security" interests “provide some real guidance”; they are taken to be indicative of the types of delay where there might be a greater ‘public interest’’ in avoiding the delay; and
6. ‘Adequacy of Damages’ is now only “one matter” to be taken into consideration, rather than being a ‘stage of its own’ (and often a decisive stage that resulted in the suspension being lifted). This means it “no longer has the significance it had under the American Cyanamid test”. 

In his concluding remarks the Judge said:

“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. I have explained above how I consider this is achieved, if section 102(2) is construed appropriately.” 

Comment

Importantly, and for the first time in a suspension lifting application, this new interpretation and weighting of the ‘public interest’ factor ‘won the day’.  The suspension was not lifted, even though the Court considered (amongst other factors) that damages would likely have been an adequate remedy; a factor which is normally determinative in resulting in the suspension being lifted (under the old law).  This was because:

“I see nothing in the facts of the present case that provides sufficient reason, in respect either of any other aspect of the public interest or of the private interests of third parties, to outweigh the public interest to which the suspension is intended to give effect. Accordingly, I shall refuse the applications to lift the suspension. I consider it appropriate to exact an undertaking in damages from the respondent, which ought to be in the form found in the standard orders for interim injunctions.”

This is the first suspension case under the Act and suggests the Courts view the new test as different to the old law.  Whilst every case will be fact specific (given the public interest and interests of supplier considerations will likely be different in every case), the case suggests outcomes may be different to the old law at automatic suspension hearings and Courts may be more willing than previously to keep suspensions in place pending trial. 

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This article was written by Richard Binns and Lloyd Nail in Burges Salmon’s Public Procurement team.

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This is the first suspension case under the Act and suggests the Courts view the new test as different to the old law.