The Procurement Act 2023 introduces a new approach to public procurement challenges in England and Wales, including a close examination of the revised test for lifting automatic suspensions under section 102 of the Act. This is an important development for both contracting authorities and suppliers.

In Parkingeye Limited v Velindre University NHS Trust & Anor [2026] EWHC 1019 (TCC), the High Court has now provided its first guidance on how that test will be applied in practice.

In this article, we look at what the judgment tells us, how the new test differs from the previous regime, and what it could mean for procurement challenges going forward.

Against that backdrop, the High Court's decision provides the first indication of how the new test will operate in practice.

In what is believed to be the first judicial consideration of the new test for lifting automatic suspensions under section 102(2) of the Procurement Act 2023, HHJ Keyser KC has refused an NHS trust's application to lift the suspension preventing it from concluding a car park management contract. The decision, handed down on 1 May 2026, is a significant boost for claimants - particularly incumbent challengers - and is not what many commentators were expecting.

Case background: Parkingeye v Velindre NHS Trust

Parkingeye, the incumbent provider of car park management services to Cardiff and Vale University Health Board, challenged the proposed award of a new contract to a rival bidder, National Parking Control Group Limited. The existing contract had commenced in June 2018, been extended by the exercise of a two-year option and then further extended on multiple occasions while the procurement was conducted and concluded. Upon issuing proceedings during the standstill period, an automatic suspension arose under section 101(1) of the 2023 Act, preventing the contracting authority from concluding the new contract. Velindre and Cardiff & Vale applied to lift that suspension under section 102(2).

A new procurement-specific test

Under the old regime - regulation 96(2) of the Public Contracts Regulations 2015 - the court applied the familiar 'American Cyanamid' test for interim injunctions, under which a finding that damages were an adequate remedy for the claimant would typically be determinative - resulting in the suspension being lifted. Keyser KC confirmed that section 102(2) of the 2023 Act establishes a fundamentally different test, both in method and effect.

Key takeaways: what this decision means in practice

  • The public interest is now the primary consideration. The balance between the public interest and the private interests of suppliers sits at the heart of the new test. The judge was at pains to point out that no single criterion in section 102(2) should be afforded automatic priority over another; the weight to be given to each factor is a matter for the court on the facts of each case. Crucially, however, the adequacy of damages - formerly the "gatekeeper" question - is now merely one factor to be weighed against others, and no longer determinative on its own.
  • The decision heralds what may in future be a general tendency in favour of maintaining the suspension, rather than lifting it. Analysing the two specific examples of public interest identified in section 102(2)(a), the judge concluded: "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". The first example in that subsection - upholding the principle that public contracts should be awarded lawfully - was read as recognising a public interest in not permitting award of the contract until the dispute as to its lawfulness has been determined. The second - avoiding delay in the supply of services - was held to focus on the substantial deprivation of services, such as threats to defence, security or the continuing provision of public services, rather than a mere preference for a different provider.

Damages may be adequate, but that alone will not cause a contracting authority's application to lift the suspension to succeed. On the facts, it was found that it would be just to confine Parkingeye to a remedy in damages. Nevertheless, the applicants' case still failed because they could not establish a sufficiently compelling public interest in lifting the suspension. We thereby have an interesting outcome here: a suspension still in place despite damages being an adequate remedy.

It seems that contracting authorities must therefore now produce compelling evidence of genuine public interest if their application to lift the suspension is to succeed. The court gave short shrift to the argument that the new contract would deliver improved services, describing the claimed benefits of the successful bidder's as "very modest" and the applicants' case as "exaggerated". In the judge's view, there was no strong public interest in who runs a hospital car park, so long as someone does. The fact that the incumbent appeared to be performing adequately - indeed, its contract had been repeatedly extended - meant there was no threat to the continuing provision of public services.

Incumbents offering service continuity are in an especially strong position. Parkingeye had offered to match the successful bidder's revenue share and provide access to its online portal during the suspension, effectively neutralising the supposed urgency for the new contract. This made it all the harder for the contracting authority to demonstrate a pressing public interest in lifting the suspension. Where a claim has been brought by an incumbent - particularly one whose contract has been repeatedly extended - contracting authorities face a steep evidential hill.

No weight was given to the risk of further contract extensions. The applicants argued that each further extension of the existing contract could itself be subject to legal challenge. The court dismissed this concern, noting that neither party had identified any case in which such a challenge had been brought, let alone successfully.

Looking ahead: what to expect under the Procurement Act 2023

This decision is a landmark - but it may also be appealed, and the court itself acknowledged that an application for permission to appeal had already been intimated. It will probably be the first of many cases as the law under the 2023 Act settles. Contracting authorities should take note: the days of the adequacy-of-damages question acting as a generally reliable gateway to lifting automatic suspensions are over. The burden now falls squarely on them to articulate a concrete and persuasive public interest case. Bidders - and incumbent challengers in particular - can take real encouragement from a test that gives proper weight to the principle that public contracts should be awarded lawfully and that, until the courts have determined otherwise, the status quo should generally be preserved.

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