High Court sets new standard for lifting automatic suspension under the Procurement Act 2023

The judgment confirms that automatic suspensions are now likely to be harder to lift, with important implications for contracting authorities and bidders across the public sector.

Background

In the case of ParkingEye Limited v (1) Velindre University NHS Trust and (2) Cardiff and Vale UHB [2026] EWHC 1019 (TCC) the Court has applied the new statutory test which exists under section 102 of the PA 2023 when considering whether or not to lift the automatic suspension. 

Under the new rules, the court must carry out a bespoke statutory balancing exercise, considering:

• the public interest (including the public interest in lawful procurement);
• the interests of suppliers (including, but not limited to, damages); and
• any other relevant matters.

Under the Public Contract Regulations 2015 (PCR 2015) the applicable test was the American Cyanamid injunction test. 

The decision

Applying the new test, the Court refused to lift the automatic suspension. Key factors included:

• continuation of services was possible under existing arrangements;
• alleged benefits of immediate award were modest and could largely be deferred (some features of which were already available under the current contract despite being presented as key benefits of the new contract); and
• the claimant provided a standard cross‑undertaking in damages.

What does the Judgment tell us?

1. Damages are no longer decisive

The court confirmed that whether damages are an adequate remedy is only one factor. Even if damages could compensate the claimant in principle, this does not mean the suspension should be lifted. Under the American Cyanamid test, such a hurdle was seen as a "gateway" which the supplier could often not get past. Judge Keyser KC explicitly recognised that this was a major reason it was relatively easy for contracting authorities to succeed in the past.

2. Public interest arguments are narrower

General assertions that a new contract would deliver improvements, efficiencies or better value for money will usually carry limited weight and are unlikely to outweigh the public interest in a lawful procurement. The relevant public interest focuses primarily on whether maintaining the suspension risks interruption or deprivation to essential public services and the continuity of existing services weakens arguments for lifting the suspension.

3. Strong public interest in resolving legality before award

The court recognised a general public interest in ensuring that public contracts are awarded lawfully, which may favour maintaining the suspension while legal challenges are resolved. Judge Keyser KC expressly rejected the submission that an illegality could be 'cured' by post-award damages and commented "In my view the principle is directed to the importance of awarding contracts lawfully, not to responses to unlawful awards".

4. Evidence is critical

Authorities seeking to lift a suspension must show a clear, evidence‑based justification, typically involving a real risk to continuity of services or serious detriment to service users. Speculative or overstated benefits will not suffice and whilst applications do not involve merits or a mini-trial of the issues, the evidence must be sufficient.

Take aways

For contracting authorities

• Expect greater difficulty in lifting suspensions, particularly where incumbent arrangements can continue and the benefits to the new contracts are modest / can be deferred without particular impact.
• Build potential litigation delay into procurement planning and timetables (particularly where incumbent arrangements can continue).
• Ensure public interest arguments are supported by robust evidence, not generalised assertions.

For bidders and incumbents

• The automatic suspension is now a stronger pre‑contract remedy.
• Early injunctive relief may be a realistic objective rather than a tactical placeholder.
• Careful strategy around undertakings in damages remains important

Conclusion

This decision represents a significant recalibration of procurement remedies under the PA 2023 as against what was available under the PCR 2015. Courts are likely to be more reluctant to allow contract awards to proceed while legality is disputed, unless there is a compelling and well‑evidenced public interest in doing so. It will be interesting to see how the Judgment is followed in future applications. 

Please get in touch if you would like to discuss how this affects a current or upcoming procurement, or to receive tailored advice on managing suspension risk.