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	England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Parkingeye Ltd v Velindre University NHS Trust & Anor [2026] EWHC 1019 (TCC) (01 May 2026) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2026/1019.html Cite as: [2026] WLR(D) 293, [2026] EWHC 1019 (TCC)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)

		Cardiff Civil Justice Centre 2 Park Street, Cardiff, CF10 1ET
		1 May 2026

B e f o r e :

HIS HONOUR JUDGE KEYSER KC
sitting as a Judge of the High Court
____________________

Between:

	PARKINGEYE LIMITED	Claimant / Respondent
	- and –
	(1) VELINDRE UNIVERSITY NHS TRUST (2) CARDIFF AND VALE UNIVERSITY HEALTH BOARD	Defendants / Applicants

____________________

Stephen Kosmin and Oliver Jackson (instructed by DWF Law LLP) for the Claimant/Respondent
Jorren Knibbe (instructed by NWSSP Legal & Risk Services) for the Defendants/Applicants

Hearing date: 22 April 2026
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

This judgment was handed down remotely at 10.30am on 1 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Judge Keyser KC :

Introduction

1. The defendants (here referred to together as "the applicants", and respectively as "Velindre" and "Cardiff & Vale") apply for orders pursuant to section 102(2) of the Procurement Act 2023 ("the 2023 Act") lifting the automatic suspension imposed by section 101(1) of the 2023 Act, which currently prevents them from concluding a contract for car park management services which, after a public procurement process ("the Procurement"), they have decided to award to National Parking Control Group Limited ("NPCG").
2. The claimant (here referred to as "the respondent") is the incumbent provider of car park management services for Cardiff & Vale. It issued proceedings in London (now with the claim no. HT-2026-CDF-000004, after transfer to this court) challenging the award decision on 19 January 2026, during the statutory standstill period, which had been extended by agreement. After the applicants had published an amended Contract Award Notice on 21 January 2026, the respondent issued a further, materially similar claim (claim no. HT-2026-CDF-000003). In each case the applicants have made an application dated 19 March 2026. The applications are materially identical.
3. The applications are supported by the following witness statements:

First statement of Iliass Dadda, Senior Procurement Business Manager at NHS Wales Shared Services Partnership ("NWSSP"), Procurement Services: 18 March 2026

First statement of Andrew John Evans, a Senior Commercial Lawyer at NWSSP, Legal & Risk Services: 17 March 2026

Second statement of Iliass Dadda (in reply): 10 April 2026

First statement of Steffanie Pothecary, Head of Transport and Sustainable Travel at Cardiff & Vale (in reply): 10 April 2026.

4. In response to the application the respondent has adduced the following witness statements:

First statement of Jo Wade, the Sales and Marketing Director of the respondent: 7 April 2026

First statement of John Edward Williams, a partner at DWF Law LLP and the solicitor with conduct of these proceedings on behalf of the respondent: 7 April 2026

Second statement of Jo Wade (in further response): 14 April 2026.

5. I am grateful to Mr Knibbe, counsel for the applicants, and to Mr Kosmin and Mr Jackson, counsel for the respondent, for their elegant, detailed and helpful written and oral submissions. I observe that paragraphs 31 and 63 to 65 below incorporate modifications in the light of written submissions very properly made by Mr Knibbe in support of an application for permission to appeal after the draft judgment had been provided.
6. The next part of this judgment will provide a brief survey of the relevant law, beginning with an overview of the structure of the 2023 Act (at least, so far as is material for present purposes) and then considering in more detail the provisions directly concerning the present applications. I shall then give a summary of the facts, followed by a summary of the issues in the substantive claim. Finally, I shall turn to the matters directly bearing on the applications.

The Law

The 2023 Act

7. The Procurement was conducted under the 2023 Act, which received Royal Assent on 26 October 2023. The Explanatory Notes to the 2023 Act explain that its purpose "is to reform the United Kingdom's public procurement regime following its exit from the European Union (EU), creating a simpler and more transparent system not based on transposed EU Directives" and to "[give] effect to the policies that were set out in the Government's Green Paper 'Transforming Public Procurement' published in December 2020, and the Government's response to the consultation published in December 2021." The 2023 Act repeals the regulations that implemented the regime created by EU Directives "and replaces these with a single new public procurement regime with a number of sector specific features." (See Explanatory Notes, paragraphs 1, 2 and 9.)
8. Part 2 of the 2023 Act (sections 11 to 14) concerns procurement "Principles and Objectives". Section 11(1) provides:

"A contracting authority may not carry out a covered procurement except in accordance with this Act."

A contracting authority that wishes to award a public contract must do so by means of a competitive process or, in certain cases (not relevant here), by a direct award or an award under a framework: section 11(2). The terms "contracting authority", "covered procurement" and "public contract" are defined terms; I need not set out the definitions. It is common ground that the Procurement was a covered procurement in respect of a public contract, and (subject to an issue as to which applicant was actually the proper contracting authority) that the applicants would be contracting authorities.

9. Section 12 provides in part:

"(1) In carrying out a covered procurement, a contracting authority must have regard to the importance of—

(a) delivering value for money;

(b) maximising public benefit;

(c) sharing information for the purpose of allowing suppliers and others to understand the authority's procurement policies and decisions;

(d) acting, and being seen to act, with integrity.

(2) In carrying out a covered procurement, a contracting authority must treat suppliers the same unless a difference between the suppliers justifies different treatment."

10. Part 3 of the 2023 Act (sections 15 to 66) makes detailed provision for the award of public contracts and the applicable procedures. Chapter 2 (sections 19 to 40) contains the provisions applying to competitive awards. Section 19 provides in part:

"(1) A contracting authority may award a public contract to the supplier that submits the most advantageous tender in a competitive tendering procedure.

(2) The 'most advantageous tender' is the tender that the contracting authority considers—

(a) satisfies the contracting authority's requirements, and

(b) best satisfies the award criteria when assessed by reference to—

(i) the assessment methodology under section 23(3)(a), and

(ii) if there is more than one criterion, the relative importance of the criteria under section 23(3)(b).

(3) In assessing tenders for the purposes of this section a contracting authority—

(a) must disregard any tender from a supplier that does not satisfy the conditions of participation;

(b) may disregard any tender from a supplier that—

(i) is not a United Kingdom supplier or treaty state supplier, or

(ii) intends to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or treaty state supplier;

(c) may disregard any tender that offers a price that the contracting authority considers to be abnormally low for performance of the contract;

(d) may disregard any tender which breaches a procedural requirement set out in the tender notice or associated tender documents."

11. Section 21 makes provision in respect of tender notices and associated tender documents.

"(1) A contracting authority must publish a tender notice for the purpose of—

(a) inviting suppliers to submit a tender as part of an open procedure, or …

(2) A 'tender notice' means a notice setting out—

(a) that a contracting authority intends to award a public contract under section 19, and

(b) any other information specified in regulations under section 95.

(3) A contracting authority must provide any associated tender documents in accordance with the tender notice.

(4) 'Associated tender document' means, in relation to a tender notice, a document setting out information specified in regulations under section 95 that supplements that set out in the tender notice.

(5) A contracting authority may not invite suppliers to submit a tender as part of a competitive tendering procedure unless it is satisfied that the tender notice or associated tender documents contain—

(a) information sufficient to allow suppliers to prepare such a tender, and

(b) in particular, details of the goods, services or works required by the contracting authority.

(6) In detailing its requirements, a contracting authority must be satisfied that they—

(a) are sufficiently clear and specific, and

(b) do not break the rules on technical specifications in section 56.

…"

12. Section 22 of the 2023 Act provides in part:

"(1) A contracting authority may set conditions of participation in relation to the award of a public contract under section 19 only if it is satisfied that the conditions are a proportionate means of ensuring that suppliers have—

(a) the legal and financial capacity to perform the contract, or

(b) the technical ability to perform the contract.

(2) A 'condition of participation' is a condition that a supplier must satisfy if the supplier is to be awarded the public contract."

13. Section 23 of the 2023 Act provides in part:

"(1) In this Act, 'award criteria' means criteria set in accordance with this section against which tenders may be assessed for the purpose of awarding a public contract under section 19 (award following competitive tendering procedure).

(2) In setting award criteria, a contracting authority must be satisfied that they—

(a) relate to the subject-matter of the contract,

(b) are sufficiently clear, measurable and specific,

(c) do not break the rules on technical specifications in section 56, and

(d) are a proportionate means of assessing tenders, having regard to the nature, complexity and cost of the contract.

(3) In setting award criteria, a contracting authority must—

(a) describe how tenders are to be assessed by reference to them and, in particular, specify whether failure to meet one or more criteria would disqualify a tender (the "assessment methodology"), and

(b) if there is more than one criterion, indicate their relative importance by—

(i) weighting each as representing a percentage of total importance,

(ii) ranking them in order of importance, or

(iii) describing it in another way."

14. Section 50 of the 2023 Act provides in part:

"(1) Before entering into a public contract, a contracting authority must publish a contract award notice.

(2) A 'contract award notice' means a notice setting out—

(a) that the contracting authority intends to enter into a contract, and

(b) any other information specified in regulations under section 95.

(3) Before publishing a contract award notice in respect of a contract awarded under section 19 (award following competitive tendering procedure), a contracting authority must provide an assessment summary to each supplier that submitted an assessed tender.

(4) An 'assessment summary' means, in relation to an assessed tender, information about the contracting authority's assessment of—

(a) the tender, and

(b) if different, the most advantageous tender submitted in respect of the contract.

(5) In this section, an 'assessed tender' is a tender which—

(a) was submitted in respect of the contract and assessed for the purposes of determining the most advantageous tender under section 19(1), and

(b) was not disregarded in the assessment of tenders."

15. Section 51 of the 2023 Act, so far as relevant in this case, provides:

"(1) A contracting authority may not enter into a public contract before—

(a) the end of the mandatory standstill period, or

(b) if later, the end of another standstill period provided for in the contract award notice.

(2) The 'mandatory standstill period' is the period of eight working days beginning with the day on which a contract award notice is published in respect of the contract."

16. Part 9 of the 2023 Act (sections 100 to 107) makes provision in respect of remedies for breach of statutory duty. Section 100 provides in relevant part:

"(1) A contracting authority's duty to comply with Parts 1 to 5, 7 and 8 is enforceable in civil proceedings under this Part.

(2) For the purposes of this Part, the duty is owed to any supplier that is—

(a) a United Kingdom supplier, …

(3) Proceedings under this Part may be brought in the court by a supplier that—

(a) is a United Kingdom or treaty state supplier, and

(b) has suffered, or is at risk of suffering, loss or damage in consequence of a breach of the duty.

…

(9) In this Part—

…

'the court' means—

(a) in England and Wales, the High Court, …"

17. If, during the standstill period, a supplier issues proceedings under Part 9, the contracting authority is prohibited from entering into the awarded contract. Section 101 provides in relevant part:

"(1) A contracting authority may not enter into a public contract … if during any applicable standstill period—

(a) proceedings under this Part are commenced in relation to the contract, and

(b) the contracting authority is notified of that fact.

(2) The court may lift or modify the restriction in subsection (1) by order under section 102.

(3) The restriction in subsection (1) does not apply if—

(a) the proceedings at first instance have been determined, discontinued or otherwise disposed of, and

(b) the court has not made an order to extend the restriction."

18. Section 102 of the 2023 Act, headed "Interim remedies", provides as follows:

"(1) In proceedings under this Part, the court may make one or more of the following orders—

(a) an order lifting or modifying the restriction in section 101(1);

(b) an order extending the restriction or imposing a similar restriction;

(c) an order suspending the effect of any decision made or action taken by the contracting authority in carrying out the procurement;

(d) an order suspending the procurement or any part of it;

(e) an order suspending the entry into or performance of a contract;

(f) an order suspending the making of a modification of a contract or performance of a contract as modified.

(2) In considering whether to make an order under subsection (1), the court must have regard to—

(a) the public interest in, among other things—

(i) upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law;

(ii) avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services);

(b) the interests of suppliers, including whether damages are an adequate remedy for the claimant;

(c) any other matters that the court considers appropriate.

(3) An order under subsection (1) may not permit a contract to be entered into or modified before the end of any applicable standstill period (see sections 51 and 76).

(4) An order under subsection (1) may provide for undertakings or conditions."

19. "Pre-contractual remedies" are provided for in section 103 of the 2023 Act:

"(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and—

(a) the contract in relation to which the breach occurred has not been entered into, or

(b) where the breach occurred in relation to a modification of a contract, the modification has not yet been made.

(2) The court may make one or more of the following orders—

(a) an order setting aside the decision or action;

(b) an order requiring the contracting authority to take any action;

(c) an order for the award of damages;

(d) any other order that the court considers appropriate."

20. "Post-contractual remedies" are provided for in section 104 of the 2023 Act, which provides in part as follows:

"(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and—

(a) the contract in relation to which the breach occurred has already been entered into, or

(b) where the breach occurred in relation to a modification of a contract, the modification has already been made.

(2) The court—

(a) must, if a set aside condition in section 105 is met, make an order setting aside the contract or modification, and

(b) may, in any case, make an order for the award of damages.

(3) The duty in subsection (2)(a) does not apply if the court is satisfied that there is an overriding public interest in not setting aside the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services).

(4) In which case, the court may make an order reducing—

(a) the term of the contract;

(b) the goods, services or works to be supplied under the contract."

21. The only other provision of the 2023 Act that needs to be mentioned at this stage is section 106, which provides for time limits for commencing proceedings under Part 9. So far as relevant it provides:

"(1) A supplier must commence any specified set-aside proceedings before the earlier of—

(a) the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim;

(b) the end of the period of six months beginning with the day the contract was entered into or modified.

(2) A supplier must commence any other proceedings under this Part before the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim.

(3) The court may make an order extending a time limit referred to in subsection (1)(a) or (2) if it considers there to be a good reason for doing so.

(4) An order under subsection (3) may not permit proceedings to be commenced after—

…

(b) in any case, the end of the period of 3 months beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim."

22. I shall make reference to further provisions of the 2023 Act later in this judgment.

Applications to lift the automatic suspension

23. Before the 2023 Act came into force, the provisions in respect of suspension of contract-making and bringing such suspension to an end were found in regulations 95 and 96 of the Public Contracts Regulations 2015, which provided in relevant part:

"95. Contract-making suspended by challenge to award decision

(1) Where—

(a) a claim form has been issued in respect of a contracting authority's decision to award the contract,

(b) the contracting authority has become aware that the claim form has been issued and that it relates to that decision, and

(c) the contract has not been entered into,

the contracting authority is required to refrain from entering into the contract.

(2) The requirement continues until any of the following occurs—

(a) the Court brings the requirement to an end by interim order under regulation 96(1)(a);

(b) the proceedings at first instance are determined, discontinued or otherwise disposed of and no order has been made continuing the requirement (for example in connection with an appeal or the possibility of an appeal)."

"96. Interim orders

(1) In proceedings, the Court may, where relevant, make an interim order—

(a) bringing to an end the requirement imposed by regulation 95(1); …

(2) When deciding whether to make an order under paragraph (1)(a)—

(a) the Court must consider whether, if regulation 95(1) were not applicable, it would be appropriate to make an interim order requiring the contracting authority to refrain from entering into the contract; and

(b) only if the Court considers that it would not be appropriate to make such an interim order may it make an order under paragraph (1)(a).

(3) If the Court considers that it would not be appropriate to make an interim order of the kind mentioned in paragraph (2) (a) in the absence of undertakings or conditions, it may require or impose such undertakings or conditions in relation to the requirement in regulation 95(1)."

24. Regulation 96(2) was interpreted to mean that the applicable test was that laid down for the grant of an interim injunction in the decision of the House of Lords in American Cyanamid Co. v Ethicon Ltd [1975] AC 396. In Camelot UK Lotteries Limited v The Gambling Commission [2022] EWHC 1644 (TCC), O'Farrell J stated that test as follows:

"48. The relevant questions for the court, when determining an application to lift the automatic suspension in a procurement challenge case, are as follows:

i) Is there a serious issue to be tried?

ii) If so, would damages be an adequate remedy for the claimant(s) if the suspension were lifted and they succeeded at trial; is it just in all the circumstances that the claimant(s) should be confined to a remedy of damages?

iii) If not, would damages be an adequate remedy for the defendant if the suspension remained in place and it succeeded at trial?

iv) 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?"

Under that test, a finding that damages would be an adequate remedy for the claimant (the second stage of the test) would mean that an injunction restraining the contracting authority from entering into the contract would be inappropriate and, therefore, that the suspension should be lifted. Regarding the balance of convenience (the fourth stage of the test), in the Camelot case O'Farrell J said this:

"126. There is no dispute as to the applicable principles. The balance of convenience test requires the court to consider all the circumstances of the case to determine which course of action is likely to carry the least risk of injustice to either party if it is subsequently established to be wrong. When determining where the balance of convenience lies:

i) the court should consider how long the suspension might have to be kept in force if an expedited trial could be ordered: DWF LLP v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 900 per Sir Robin Jacob at [50];

ii) the court may have regard to the public interest: Alstom Transport v Eurostar International Ltd [2010] EWHC 2747 (Ch) at [80];

iii) the court should consider the interests of the successful bidder, alongside the interests of the other parties: OpenView Security Solutions Limited v The London Borough of Merton Council [2015] EWHC 2694 (TCC) at [14];

iv) if the factors relevant to the balance of convenience do not point in favour of one side or the other, then the prudent course will usually be to preserve the status quo (or, perhaps more accurately, the status quo ante), that is to say to lift the suspension and allow the contract to be entered into: Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC) at [16]."

25. As was common ground between the parties, 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. There was, however, some difference between the parties as to how it operates. Counsel were unable to find any decided case in England and Wales where the test had been subject of judicial consideration.
26. The relevant principles of statutory interpretation were summarised by Lord Hodge (with whose judgment Lord Briggs, Lord Stephens and Lady Rose agreed) in R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255:

"29. The courts in conducting statutory interpretation are 'seeking the meaning of the words which Parliament used': Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: 'Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.' (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: 'Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.

30. External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. …

31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme [2001] 2 AC 349, 396, in an important passage stated:

'The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . . Thus, when courts say that such-and-such a meaning "cannot be what Parliament intended", they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.'"

27. The wording of section 102(2) falls to be considered in the context of the 2023 Act as a whole. Other than section 102(1), the most important textual context is perhaps section 12, which identifies the objectives of covered procurement.
28. Taken by itself, the wording of section 102(2) simply requires the court to have regard to the matters mentioned in paragraphs (a) to (c) when considering whether to make an order under subsection (1). The two mandatory considerations in all cases are, therefore, the public interest and the interests of suppliers (including the claimant). The balance between the public interest and the private interests of suppliers is thus at the heart of the new test.
29. Section 102 does not in terms explain how the balance is to be struck or create any default position or presumption. It does not provide that any of the matters mentioned in paragraphs (a) to (c) have priority over others. This would lead naturally to the conclusion, which I do reach, that the weight to be afforded to each of the matters will be for the court to decide on the facts of each particular case. (Of course, the single test in section 102(2) applies not only to decisions whether or not to lift the suspension but to consideration of all of the various interim remedies mentioned in section 102(1).)
30. However, several matters would seem to provide a clear indication 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 as found in regulation 96(2) of the Public Contracts Regulations 2015. First, and most obviously, the test for an interim injunction is no longer in operation. Under that test the conclusion that damages would be an adequate remedy for the claimant would result in the suspension being lifted; this was a major reason why it was relatively difficult for a claimant to successfully resist an application to lift the stay. Now, however, adequacy of damages is only one matter to be taken into consideration. Second, this change is emphasised by the ordering of matters (a) and (b) in section 102(2). Although the ordering does not necessarily indicate that one matter has greater weight than the other—if more things than one are mentioned, they have to appear in the text in some sequence—it does serve to emphasise the departure from the former test under regulation 96(2). Under that former test, the public interest was considered only after the second stage of that test (adequacy of damages for the claimant): that is, it arose for consideration at the fourth stage of the test, viz. the balance of convenience (see Camelot at [48(iv)] and [126]), or possibly at the third stage, viz. adequacy of damages for the contracting authority. This might often mean that the public interest would not fall for consideration at all, because the adequacy of damages for the claimant would in many cases be determinative of the application to lift the suspension. That is no longer the case.
31. Third, I think that the specific examples of public interest in section 102(2)(a) give a fairly clear indication of how the public interest is meant to operate as a consideration for the court. 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 (upholding the principle of lawful awards) has to be understood in a way that explains its practical utility to the exercise being undertaken by the court. It does not, I think, invite a consideration of the merits: the court's former approach was not to engage in anything like a mini-trial, which would be impractical in most cases; and section 102(2)(a) says nothing at all about merits. Before me, counsel were agreed that the new test does not invite the court to form a view on merits, at least in any but a clear case. I agree. But then, is the example in section 102(2)(a)(i) just a rather vacuous statement of a principle that has no practical bearing on the decision to be made? In my view, no. For the applicants, Mr Knibbe submitted that the public interest in upholding the principle that contracts should be awarded lawfully was adequately respected by the lifting of a suspension, because the availability of the post-contract remedy of damages would recognise any unlawfulness in the contract award, impose a sanction for that unlawfulness and represent a disincentive against future breaches of the obligations under the 2023 Act. I do not accept that submission. If it were correct, the principle that public contracts should be awarded lawfully would really have little or nothing to bring to the determination of whether to grant an interim remedy under section 102(1). The existence of the substantive claim and the availability of final remedies would render the principle neutral at the stage of interim remedies. The principle would hardly have been worth mentioning at all, let alone in first place. In my view the principle is directed to the importance of awarding contracts lawfully, not to responses to unlawful awards. I read it as 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.

The second example of public interest (delay in supply) focuses precisely on delay in achieving the supply of goods and services, not on the desirability of alternative sources of supply. The significance of this appears from the parenthesis, albeit that it too only provides examples of what is encompassed in section 102(2)(a)(ii): delay in the supply of goods or services in the context of defence or security is of obvious importance; but the second example, "the continuing provision of public services", expressly concerns the possibility that public services will not be provided. I note that the same two examples are given in section 104(3) (exception to the obligation to set aside a contract or modification), where they are instances of "an overriding public interest in not setting aside the contract or modification"; this indicates that they are both intended to represent serious and maybe exceptional cases. Thus, although they are not exhaustive, the particular instances of public interest identified in the parenthesis in section 102(2)(a)(ii) are of serious matters, such as interference with defence or security or the interruption of public services, rather than merely a public interest in contracting authorities acting in accordance with their own judgement as to where their and the public's advantage lies. I take the point, made by Mr Knibbe, that section 102(2)(a)(ii) refers generally to the delay in the supply of the services etc. "provided for in the contract or modification", and I acknowledge that—as is recognised later in this judgment—the court must consider in the balance the public interest in the provision of any additional or modified services not previously provided. The examples in the parenthesis are not exclusive, as the wider examples in sub-paragraphs (i) and (ii) are themselves not exclusive of the public interest. But they do seem to me to provide some real guidance beyond merely pointing to a public interest in the contract being awarded in accordance with the procurement decision. In any given case, the court must assess the weight of the public interest in the prompt delivery of additional or improved services. Especially when read in the context of section 102(2)(a)(i), section 102(2)(a)(ii) directs the primary focus to the substantial deprivation of services.

32. I am confirmed in the views that I would form as to the interpretation of section 102(2) by the secondary materials to which I was referred. First, the Green Paper Transforming Public Procurement (CP 353, December 2020) contained the following passage in respect of lifting the automatic suspension (I omit the references in footnotes).

"205. The current test used by the court to determine whether a suspension should be lifted is based on the test for the granting of an interim injunction, which relies on the principles established by the 1975 American Cyanamid case (on alleged patent infringement) and is not specific to public procurement challenges. Official statistics are unavailable but it is believed that in 2017 as an example, around two thirds of hearings to lift the automatic suspension in procurement cases were found in favour of the contracting authority. This potentially reflects the difficulty for a claimant to show that damages are an inadequate substitute for a profit-making contract, especially when set against the delay to contract award exacerbated by the length of proceedings.

206. We propose amending the test to be applied by the Courts when determining whether to lift the automatic suspension so that it is no longer based on the test applied when granting an injunction, but is a more appropriate, procurement-specific test. We would aim for this test to balance public interest, urgency, the upholding of the regulations and the impact on the winning bidder against the right for the claimant to be able to participate in the contract and the alternative available remedies. The introduction of a fast track procedure where required should reduce the need to rely on this test as the reduction in Court timescales will allow more contracts to remain suspended while the case is heard."

It is to be noted that the Green Paper contained relevant proposals for legislating for the primacy of pre-contractual remedies and for a cap on damages, neither of which found their way into the 2023 Act. Nevertheless, the proposal for a new procurement-specific test was maintained in accordance with the Green Paper.

33. The document Transforming Public Procurement: Government response to consultation (CP 556, December 2021) addressed the issue by reference to Question 34, "Do you agree that the test to list [sic] automatic suspensions should be reviewed? Please provide further views on how this could be amended to achieve the desired objectives".

"Summary of responses

250. A majority (60%) of 315 respondents agreed that development of a procurement-specific test would be a positive move to ensure greater balance between supplier and contracting authorities' interests given the current test is often thought to be skewed in favour of contracting authorities. However, support for this was contingent on the detail of the proposed replacement test for American Cyanamid and was given in the Green Paper context of a stated primacy of pre-contractual remedies and implementation of a damages cap. Respondents were keen to ensure that the impact of suspension on public service delivery would continue to be taken into account in any move away from the 'adequacy of damages' test (which is the aspect of the American Cyanamid assessment that makes it very difficult for suppliers to succeed in maintaining suspensions).

Government Response

251. The Government intends to introduce a new test into legislation as described in the Green Paper.

252. We believe that it would be helpful to all parties to clarify the test for use in a procurement-specific context. We are still working through the potential options but envisage that the new test will be a simple, single limb test which provides for suspensions to be lifted where there are overriding consequences for the various interests concerned. This will include the impact on public service delivery."

34. The Explanatory Notes to the 2023 Act do little more than paraphrase section 102 and state in relevant part:

"Section 102: Interim remedies

62. Subsection (1) allows the court to make interim orders in relation to any claims and details the types of order that can be made. These include lifting (or modifying) the automatic suspension that prevents a contracting authority from entering into or modifying a contract, but also suspending a contracting authority's decision or action (so that it must proceed as though it had not taken place), suspending progress of a procurement, or, after a contract has been entered into, suspending performance of the contract (or part thereof).

630. Subsection (2) sets out a test that the court must apply when determining whether to make an interim order under subsection (1). This will replace application of the common law test in the 1975 American Cyanamid case and will notably apply to any decision to lift the automatic suspension. The court must consider:

a. the public interest - including both the public interest in ensuring the contract is awarded (or modified) in accordance with the law and avoiding adverse consequences caused by delay in performing the contract in question (e.g. to defence or security interests);

b. the interests of suppliers - which will include the winning bidder and claimant and specifically require consideration of whether damages are an adequate remedy for the claimant;

c. any other issues the court may wish to consider."

35. Finally, I refer to the government's Guidance: Remedies (updated on 20 November 2025), which contains the following relevant paragraphs.

"7. The Act introduces a new, procurement-specific test to be applied by the Court when determining whether to make an order for an interim remedy. This test will be used by the Court, for example, when determining whether to lift an automatic suspension on application by the contracting authority …

19. Usually, a supplier's reason for bringing a claim is to challenge the decision to award a contract to another supplier or to challenge the lawfulness of a modification and to secure the contract (or new contract implementing the modification) for itself. Suspending the ability of the contracting authority to enter into the contract or make the modification allows that possibility. Resolving any dispute prior to entering into a new contract or making a modification is generally in the interests of the contracting authority as well, to ensure successful delivery of the goods, services or works and avoid the disruption and cost associated with post-contractual remedies. The automatic suspension, therefore, serves an important purpose, because once a contract is entered into, only post-contractual remedies are available (and the contracting authority may end up paying twice, i.e. paying the supplier under the contract awarded and paying compensation for loss or damage if a supplier successfully challenges an award or modification).

20. However, in some circumstances, delaying entry into the contract or making the modification is problematic, for example, if the contract is to deliver certain defence or health-related services where delay would have unacceptable operational impacts. To allow for such situations, a contracting authority can ask the Court to lift or modify the automatic suspension i.e. bring the suspension to an end or modify it (for example, provide for a shorter standstill period) and allow the contract to be entered into or the modification to be made immediately (or within a shorter period than would otherwise be the case). The Court will apply the test in section 102(2) to consider whether the suspension should be lifted or modified.

…

25. Before making such an order [viz. an order under section 102(1)], the test in section 102(2) requires the Court to consider the merits of the case to ensure that the interests of suppliers, including the claimant, and the supplier to whom the contracting authority has decided to award the contract, are considered alongside the public interest. The Court may also consider any other matter it considers appropriate.

26. Public interest considerations include upholding the principle that the law should be complied with, as well as the implications of delaying the procurement or modification and therefore the goods, services or works the contract or modification is intended to deliver."

This 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: see Wright v Chief Constable of Cumbria [2006] EWHC 3574 (Admin), [2007] 1 WLR 1407, at [12]-[20].

36. In conclusion, my view as to the statutory test is as set out in paragraphs 28 to 31 above. I may summarise it as follows.

1) The test requires the court to balance the public interest and the interests of suppliers, including the claimant, along with any other matters the court thinks appropriate.

2) The weight to be afforded to the several factors is a matter for the court in each particular case.

3) However: (i) the adequacy of damages for the claimant, though still a relevant matter, no longer has the significance it had under the American Cyanamid test; (ii) the new test recognises the public interest that, where the lawfulness of a proposed contract award is in dispute, the contract should not be awarded until the dispute has been resolved; (iii) the public interest in lifting the suspension will generally concern the interest in the continuing provision of goods and services rather than merely the contracting authority's judgement as to its preferred provider of the goods and services or the detailed terms on which they will be provided.

4) Accordingly, although there is no statutory presumption and in each case the decision where the balance lies must be decided on the facts, the lifting of the suspension will generally require, on the particular facts of the case, the presence of either a very persuasive countervailing public interest or some overriding matter of private interest.

5) In deciding where the balance lies in a particular case, the court will also be mindful of its power to provide for undertakings or conditions in any order that it makes.

Summary of the Facts

37. The respondent is a leading supplier of car park management services in the UK and is the incumbent provider of such services to Cardiff & Vale. The current contract between the respondent and Cardiff & Vale commenced on 5 June 2018 for a term of five years, with an optional extension of two years. Cardiff & Vale exercised that option and there have been further extensions, which are ongoing while these proceedings continue. Under the current contract, the respondent is responsible for maintaining parking services for five different NHS sites in Wales, covering about 59 car parks. The services are provided across all patient, visitor and staff areas, including emergency areas, drop-off zones and arterial roads. A core objective of the management of the parking services is to ensure that patients and visitors at the hospitals use the hospital parking only for genuine hospital-related purposes and only for the duration of their appointments or visits. This is of particular importance because, in accordance with Welsh Government policy, hospital car parks in Wales remain free of charge for patients, visitors and staff, which leads to high demand for limited spaces.
38. The functions of Velindre include managing and providing shared services to the health service in Wales. It exercises these functions by NWSSP, which is a committee established by statutory instrument as part of Velindre. NWSSP has a Procurement Services department, which provides procurement support for entities within NHS Wales. The Procurement was carried out by Velindre, via NWSSP Procurement Services, on behalf of Cardiff & Vale.
39. The Procurement commenced with the publication on 4 July 2025 of a tender notice (section 21) in respect of a proposed contract to run from 6 October 2025 until 6 October 2030, with a possible extension at the discretion of Cardiff & Vale until 4 November 2032. The estimated total value of the contract was identified as £100,000 (excluding VAT). The tender notice included both "Legal and financial capacity conditions of participation" and "Technical ability conditions of participation", pursuant to regulation 19(2)(x) of the 2024 Regulations and section 22 of the 2023 Act.
40. The tender notice directed potential bidders to an online portal, which contained several further documents for the procurement process. I mention briefly some of the relevant ones.
41. "Appendix A—Instructions to Bidders" required all bidders to answer certain "Conditions of Participation" questions. Bidders were required to pass all the "pass/fail" questions in order to pass to the next stage. One of these questions was "Capacity & Capability"; the criteria were as follows:

"Pass – Bidder has adequate staff to deliver the requirement, they demonstrate sufficient evidence of experience of delivering a requirement of a similar nature to the brief. The bidder has not had a contract cancelled or not renewed for failure to meet requirements. Bidder has provided sufficient information regarding their supply chain.

Fail – Bidder does not have adequate staff to deliver the requirement, they do not demonstrate sufficient evidence of experience of delivering a requirement of a similar nature to the brief. The bidder has had a contract cancelled or not renewed for failure to meet requirements. Bidder has not provided sufficient information regarding their supply chain."

42. "Appendix B—Invitation to Tender" provided an indicative timetable and "award criteria and methodology" and a "scoring mechanism" for the Procurement. Section 6 said that commercial scores would be awarded on the basis of the percentage share offered to Cardiff & Vale by bidders of their income from Parking Charge Notices ("PCNs") issued in the relevant car parks. The commercial response was to be provided by "Appendix E—Commercial Response"; the information to be provided included estimates of the number of PCNs that might be issued annually at the relevant car parks.
43. "Appendix C—Specification of Requirements" set out the required services.
44. "NHS Wales Standard Terms and Conditions for Services v4 2023 Final Version" set out the basis of the contract to be awarded.
45. The respondent was one of five suppliers that submitted bids. All five successfully passed the first stage of the evaluation. The bids were then provided to two evaluators prior to a meeting held on 1 October 2025, at which the bids were subjected to technical evaluation collectively by the evaluators and a moderator. The evidence of Mr Dadda is that the evaluation panel reviewed materials displayed on a shared screen and made their own notes on their own laptops. Mr Dadda states (first statement):

"34. After the technical evaluation was completed, I conducted the commercial evaluation. This stage was based on the percentage income share offered by each bidder. The bidder offering the highest percentage received the full score of 40%, and I awarded other bidders a pro-rata score relative to the highest percentage submitted in line with the commercial scoring methodology.

35. When the final scores were calculated, it was clear that National Parking Control Group Limited achieved the highest overall score. They received 40% for the commercial stage and 44% for the technical stage, giving them a total score of 84%."

46. By a letter dated 19 December 2025 and issued on 22 December 2025, the applicants notified the respondent that it had not been selected as the successful bidder in the Procurement. The letter was accompanied by an assessment summary; this showed the overall weighted score of the respondent's bid as 68%, and the overall weighted score of the successful bid as 84%.
47. On 24 December 2025 the applicants published a contract award notice ("the First CAN"), which identified NPCG as the successful bidder.
48. On 19 January 2026, during the standstill period as extended by Cardiff & Vale on 7 January 2026, the respondent commenced claim no. HT-2026-000023. That case was subsequently transferred to this court and is now claim no. HT-2026-CDF-000004. It was stayed by a consent order sealed on 26 January 2026. The commencement of that claim gave rise to the prohibition imposed by section 101 of the 2023 Act on Cardiff & Vale concluding the contract with NPCG.
49. By email on 19 January 2026 the applicants notified the respondent's solicitors that they had identified an error in the assessment summary issued on 22 December 2025 and that accordingly new assessment summaries and a revised contract award notice would be issued. The revised assessment summaries were issued on 21 January 2026 and the revised contract award notice ("the Second CAN") was issued on 22 January 2026.
50. On 2 February 2026, before transfer of the earlier claim into this court, claim no. HT-2026-CDF-000003 was issued. The new claim was not formally served on the applicants.
51. The parties' legal representatives engaged in correspondence. I do not propose to refer to it in detail. The respondent sought disclosure from the applicants; it remains dissatisfied with the disclosure it has received. The applicants sought, but did not receive, agreement to the lifting of the automatic suspension. On 13 March 2026 the applicants received confirmation that the transfer into this court of the earlier claim, now HT-2026-CDF-000004, which was the only claim that had then been served, had been completed. On the same day the applicants gave notice under the terms of the consent order of 26 January 2026 to end the stay of that case.
52. The present applications were dated 19 March 2026 and filed on 20 March 2026.
53. At the hearing of the applications I reserved judgment on them and directed that a case management conference be held on 1 June 2026 so that, whatever the outcome of the applications, directions might promptly be given for the further conduct of the claims.

The Claim

54. The respondent has filed particulars of claim common to both claim no. HT-2026-CDF-000003 and HT-2026-CDF-000004.
55. The allegations of breach of statutory duty are contained in paragraphs 36 to 73 of the particulars of claim, comprising well over 100 paragraphs or sub-paragraphs. Here I give only a brief summary of the main points.

i) The tender notice stated the wrong contracting authority: it identified the contracting authority as Velindre; however, Cardiff & Vale was to be the recipient of the services and so was the contracting authority: section 3(2) of the 2023 Act.

ii) The tender notice wrongly stated the estimated total value of the contract as £100,000 excluding VAT. That figure was actually below the threshold amount to qualify as a public contract under section 3 and Schedule 1 to the 2023 Act. In fact (as the applicants acknowledge) that figure represented the expected income to Cardiff & Vale from the contract, whereas what ought to have been stated was the expected income to the winning bidder. The latter figure would, on the applicants' own evidence, have been at least £10m and maybe in excess of £20m.

iii) The tender notice wrongly failed to state that that the new contract was a "special regime contract", namely a concession contract within the terms of section 8 of the 2023 Act, which provides:

"(1) In this Act, 'concession contract' means a contract for the supply, for pecuniary interest, of works or services to a contracting authority where—

(a) at least part of the consideration for that supply is a right for the supplier to exploit the works or services, and

(b) under the contract the supplier is exposed to a real operating risk.

(2) An 'operating risk' is a risk that the supplier will not be able to recover its costs in connection with the supply and operation of the works or services, where the factors giving rise to that risk—

(a) are reasonably foreseeable at the time of award, and

(b) arise from matters outside the control of the contracting authority and the supplier."

iv) Both the First CAN and the Second CAN also unlawfully stated the wrong contracting authority (Velindre, instead of Cardiff & Vale) and the wrong value of the new contract (in each case £140,000 plus VAT) and failed to state that the new contract was a concession contract.

v) The tender notice identified the following "Technical ability conditions of participation":

"Track Record: Provide case studies or references from comparable contracts within the last 3-5 years.

…

Capacity: Sufficient resources (equipment, technology, staff) to deliver the contract effectively."

These were not included in the Invitation to Tender. Therefore the associated tender documents were not "in accordance with the tender notice" as required by section 21(3) of the 2023 Act. Further, the applicants failed to apply the mandatory condition of participation specified in the tender notice when evaluating the bids.

vi) Properly construed, the invitation to tender and the applicants' internal guidance provided for a two-stage evaluation process for technical bids, by which individual evaluators would first assess each bid separately and make suitable records, without comparing the bids, before then agreeing consensus scores at a moderation meeting. However, the evaluation methodology ultimately employed appears to have been conceived of only after the procurement was already underway, and perhaps after evaluators had already received and read suppliers' bids. There was no independent individual evaluation stage; rather, at the meeting on 1 October 2025 the evaluators (guided by Mr Dadda as moderator) collectively discussed the bids and produced notes that were largely identical.

vii) The applicants treated bidders differently without lawful justification, including by assessing bids with reference to unclear and/or undisclosed criteria. In particular, the invitation to tender contained a mandatory service requirement requiring renewal of road services with a frequency greater than the length of the new contract, resulting (as the applicants acknowledge) in uncertainty as to the extent of renewal which would be required during the contract term. There was further uncertainty in the invitation to tender as to the period during which PCNs were permitted to be issued (whether during certain weekday windows or during every hour of the year); this bore directly on the revenue share that a bidder was able to offer to Cardiff & Vale. Despite those uncertainties, the applicants did not seek to ascertain the relevant assumptions on which bids were made, with the result that they cannot be sure of having compared bids on a like-for-like basis.

viii) The applicants' record-keeping was deficient and unlawful.

ix) The applicants' scoring of the respondent's bid and NPCG's bid was unlawful. The evaluators' notes from the meeting on 1 October 2025, quite apart from being largely verbatim, do not provide a proper basis for the content of the assessment summaries or the scores they set out. Whether by misapplying the scoring criteria in the invitation to tender, applying undisclosed scoring criteria, or treating bidders differently without justification, a significant increase in the respondent's score is warranted, with a reduction to the score of NPCG.

56. Paragraphs 74 and 75 of the particulars of claim set out the respondent's case on causation, loss and damage:

"74. By reason of the breaches of the Defendants' obligations (whether individually or together) the Defendants have caused the Claimant to suffer, or risk suffering, loss or damage. The Defendants were (and are) not permitted to award of the Contract to NPCG under the PA 2023, including by reason of ss.11(1) and/or 50(1) PA 2023 and/or the award of the Contract to NPCG being an unlawful direct award.

75. Without prejudice to the generality of the foregoing, if the Defendants had complied with their legal duties, the Claimant would have been (and/or would be) awarded the Contract; alternatively, it is possible that this would have been the case."

57. The relief claimed in the prayer of the particulars of claim is:

"a. An order setting aside the award of the Contract;

b. A declaration that the Defendants acted unlawfully;

c. A declaration that, if the Defendants had acted lawfully, the Claimant would have been identified as the successful tenderer for the Contract;

d. An order that the Claimant should be awarded the Contract;

e. An order that the evaluation and/or the Procurement should be re-run;

f. Such further relief as may be just and appropriate;

g. Costs."

There is no claim for damages.

58. An important part of the Defence is the contention that, by reason of the terms of the Brief Details of Claim on the claim forms (which were in substance identical) and the dates when the claimant knew or ought to have known of the circumstances giving rise to the claims, none of the matters relied on by the respondent were brought within the limitation period in section 106 of the 2023 Act, with the possible exceptions of claims arising from alleged breaches of

a) the duty to treat suppliers the same, absent a difference between suppliers justifying differential treatment and

b) the duty to provide a compliant assessment summary to each supplier that submitted an assessed tender.

59. Apart from the limitation point, the applicants dispute the substance of the claim. The Defence runs to 34 pages and, again, I shall not attempt a proper summary. The applicants deny that the tender notice named an incorrect contracting authority and say that, even if it did, the mistake can have caused no possible loss or prejudice to the respondent. They acknowledge that the total value of the contract was misstated. They deny that the contract was a concession contract, on the grounds that the provider was subject to no real operating risk within the meaning of section 8(1) of the 2023 Act. They deny that the applicable Conditions of Participation were ignored, because the tender documents, read as a whole, did not require them all to be satisfied. They deny that there was any unlawfulness in either the evaluation process or the evaluation methodology. They deny that there was lack of clarity regarding, or unequal treatment of bidders in respect of, either the permissible periods for issue of PCNs or, if the tender documentation were read reasonably, the requirement for road maintenance.

The Applications

60. In the light of the law and facts set out above, I turn to address the applications by reference to the specified matters for consideration.

(a) The public interest

61. As explained above, consideration of the particular public interest mentioned in section 102(2)(a)(i) does not, in my view, require the court to engage in assessment of the merits of the substantive dispute. The court is not, at this juncture, concerned to assess whether the proposed contract award has or has not been in accordance with the law. Rather, section 102(2)(a)(i) focuses the court's attention on the public interest (which may not, of course, be determinative) in not permitting the award of the contract to proceed until the dispute as to its lawfulness has been resolved.
62. I have already explained why I reject Mr Knibbe's submission that the public interest in upholding the principle that contracts should be awarded lawfully is adequately respected by the lifting of the suspension. I note, further, that to respond to unlawfulness in the procurement process by an award of damages is to divert public funds from the services for which they are allocated (see InHealth Intelligence Ltd v NHS England [2022] EWHC 2471 (TCC), per Fraser J at [17]) and to impose on the contracting authority a double cost (see the Remedies Guidance, paragraph 19).
63. As for the public interest mentioned in section 102(2)(a)(ii), Mr Knibbe submitted that it militated in favour of the lifting of the suspension. In my view, it does not do so to any significant extent. My understanding of that provision has been explained above. Mr Knibbe's submission, based on the evidence from Mr Dadda and Ms Pothecary, was to the following effect. The continuation of the suspension will adversely affect the interests of hospital staff, patients and visitors by delaying the provision of services bringing real benefits under the new contract. Among the main benefits would be the following: (i) improvement of the experience of patients and visitors through increased staff presence at the major hospital sites (in particular, the University Hospital of Wales), including a manned helpdesk on-site; (ii) a new contract monitoring scheme, provided for in section 11 of the specification for the new contract; (iii) a revenue-sharing scheme, in accordance with section 16 of the specification, which would bring real financial benefits to Cardiff & Vale; (iv) a new appeals management system for those whose parking permit applications have been rejected (specification, paragraph 17), in which the appeals panel would comprise solely NHS staff and which is expected to reduce the occurrence of inconsistent decisions and, according to Ms Pothecary, "enhance the trust and fairness surrounding parking permit allocation"; (v) an on-line permit system, which would give Cardiff & Vale control of the backdating of permits and of appeals against and cancellation of PCNs.
64. For reasons already given, I do not consider that the primary focus of section 102(2)(a)(ii) is directed to this level of considerations. Rather, it is concerned with the kind of situation in which the provision of public services is delayed or interrupted. That is far from the present case. In paragraph 41 of his first witness statement, Mr Dadda outlines the serious harm that would result from the absence of parking enforcement. That would indeed be the sort of harm to which sub-paragraph (ii) is directed. But there is no question of the interruption of parking management services in the present circumstances.
65. However, section 102(2)(a), including sub-paragraph (ii), requires consideration of the public interest more widely. I accept that there is a public interest in the achievement of enhanced benefits sought to be obtained by a new contract. In this regard, the views of the contracting authority have significant weight, but they are not determinative. In International SOS Assistance v Secretary of State for Defence [2025] EWHC 2634 (TCC), Eyre J said:

"35. There is a public interest in the award of public contracts being made in a lawful and transparent manner but there is also a public interest in public authorities being able to obtain the benefits which they believe flow from the contract in question (see Draeger at [49]). There will often be differing views as to the extent to which new arrangements are in fact different from those already existing and as to the extent of any benefit flowing from the changes. A mere assertion of benefit by a public body cannot close down consideration of the point but the court must proceed on the basis that the public bodies are better placed than the court to determine whether changes will be beneficial (see Medequip at [109]–[110])."

66. I accept that there is a public interest in the applicants being able to conclude a contract in accordance with the terms of the Procurement specification. I also accept that such a contract would bring a measure of genuine benefit to Cardiff & Vale and its staff, patients and visitors. I do not, however, think that this public interest weighs very heavily in the balance in the present case. First, car parking services will continue to be provided while the suspension remains in place. Second, the existing contract was extended by Cardiff & Vale by the exercise of the option and was further extended, first until 4 November 2025 and then until 16 December 2025, because the Procurement did not commence until after the expiry of the term of the contract and did not conclude within the indicated timescale. Ms Pothecary gives some evidence suggesting dissatisfaction with the respondent's performance under the existing contract. I am not persuaded, however, that these indicate any genuine public interest in achieving a change of service-provider. The points raised by Ms Pothecary in that regard seem to me to border on the trifling. Third, I think that the level of benefit that would be achieved by the lifting of the suspension is very modest, for two reasons. The first reason is that, looked at as a whole, the benefits to be achieved by the alterations to the contract specification are themselves modest. The existing contract actually provides for an online permit management system, but the evidence of Ms Wade is that Cardiff & Vale never instructed the respondent to implement such a system, even though the respondent offered to start the process in 2022. It is not clear that the new specification does provide for any significant increase in on-site attendance overall. There is currently no helpdesk, and its provision would be a material benefit; however, the provision of a helpdesk is actually a requirement of the existing contract and was never insisted on by the applicants. This, again, tends to indicate that the benefits are to be regarded as of limited significance. I accept that the new contract would give Cardiff & Vale a greater level of control in respect of permits and the cancellations of PCNs, though in fact it does have a real level of control even under the existing contract. I accept that revenue-sharing is a material benefit of the new contract. The second reason why the benefits achievable by the lifting of the suspension would be very modest is that the benefits of the new contract can largely be achieved while the suspension remains in place. The respondent has offered to match NPCG's revenue-share while the suspension lasts. It has also offered to provide access to the on-line portal during the period of the suspension. The applicants' position is that these offers have not been accepted because they want to achieve all of the benefits of the new contract and because they do not know how the respondent's portal would operate. They are entitled to take that line, and their assessment of the benefits of the new contract are to be afforded respect. But I am bound to say that I do not find the applicants' case in this respect to be very persuasive, and I agree with Mr Kosmin's submission that the applicants' case on this matter is exaggerated.
67. The applicants also rely on a public interest in avoiding further extensions of the existing contract. Mr Dadda (first witness statement, paragraph 42) says that each further extension of the existing contract could itself be the subject of a challenge by other providers of parking management services and therefore involves legal risk to Cardiff & Vale. I do not consider that this has any real weight in the balance. Neither party identified any case in which a challenge had been brought, let alone brought successfully, to an extension granted for the purpose of maintaining the supply of public services during the period of an extension. I see no reason to believe that there would be grounds for such a challenge in the present case. (See, in this regard, the remarks of Joanna Smith J in The New Lottery Company Limited v The Gambling Commission [2026] EWHC 891 (TCC), at [936]-[937].)

(b) The interests of suppliers

68. The interests of suppliers can be considered with reference to the respondent, NPCG and others. In each case, these are private commercial interests.
69. The respondent asserts that damages will not be an adequate remedy, for three reasons. The first reason is that the respondent says that its interest is in being able to provide the services under the new contract and that for this reason it has not claimed damages. Mr Kosmin submitted that the wording of section 102(2)(b) ("whether damages are an adequate remedy", not "whether damages would be an adequate remedy") means that the adequacy of damages is not a relevant consideration where they are not actually claimed. He said that this was consistent with the policy evident in the Green Paper and the Remedies Guidance and with the objectives in section 12 of the 2023 Act. He also drew support for the submission from the dicta of His Honour Judge Bird in Braceurself Ltd v NHS England [2019] EWHC 3873 (TCC) at [64] and from InHealth Intelligence, where Fraser J observed:

"15. Damages, however, are not always what an aggrieved bidder wishes to obtain. This is for at least two reasons. Firstly, it might be difficult for such a bidder to obtain an award for damages, given the requirement for there to have been a sufficiently serious breach by the contracting authority. A sufficiently serious breach is sometimes referred to as the second Francovich condition …

16. The second reason is that an economic operator may indeed want, for a wide variety of commercial considerations, to be the winning bidder, rather than have damages. Some commercial organisations may prefer to conduct the economic operations that are the subject of the procurement rather than be excluded, or lose, with a competitor enjoying the profits of the operation in question. This may be more so in the case of an existing incumbent provider where services are put out to tender, but such considerations may apply in many cases."

70. I accept that submission to a limited extent only. It is correct to say that the respondent may legitimately prefer performance to compensation. This is a matter to be taken into account. However, ultimately the respondent's interests are commercial, which is to say financial. The argument that damages cannot be an adequate remedy because they are not claimed savours of pulling oneself up by one's own bootstraps. The respondent wants the suspension to remain in place. Damages will only become an issue if the suspension is lifted. So far as I can see, there is unlikely to be a good reason why an amendment to include a claim for damages should be refused if it is sought. Damages are a remedy, not a cause of action and (though I did not receive argument on the point) I should think it unlikely that the principles concerning amendments outside the limitation period would be relevant; anyway, the remedy would be claimed in respect of the same facts as are already in play. I see no sense in favouring, for the purposes of section 102(2), a claimant that does not include the damages claim at the outset. What matters is the court's assessment of the claimant's genuine interests, not the fortuity or tactics of a pleading.
71. Although the context is different, it is perhaps instructive to consider the court's approach to the availability of specific performance as a remedy, which turns on the adequacy or "appropriateness" of a remedy in damages. In Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349 (actually a case about an interim injunction), Sachs LJ, with whose judgment Edmund Davies and Cairns LJJ agreed, said at 379:

"The standard question in relation to the grant of an injunction, 'Are damages an adequate remedy?', might perhaps, in the light of the authorities of recent years, be rewritten: 'Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?'"

And in Cavendish Square Holdings EV v Makdessi [2015] UKSC 67, [2016] AC 1172, Lord Neuberger and Lord Sumption, with whose judgment Lord Carnwath agreed, said at [30]:

"[T]he attitude of the courts, reflecting that of the Court of Chancery, is that specific performance of contractual obligations should ordinarily be refused where damages would be an adequate remedy. This is because the minimum condition for an order of specific performance is that the innocent party should have a legitimate interest extending beyond pecuniary compensation for the breach. The paradigm case is the purchase of land or certain chattels such as ships, which the law recognises as unique. Because of their uniqueness the purchaser's interest extends beyond the mere award of damages as a substitute for performance. As Lord Hoffmann put it in addressing a very similar issue 'the purpose of the law of contract is not to punish wrongdoing but to satisfy the expectations of the party entitled to performance': Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, 15."

72. While no doubt the respondent would prefer to have the contract than to receive damages, the case is very far from the sort of circumstance in which damages would be considered inadequate in principle. In principle, it would be just to confine the respondent to a remedy in damages. That, and not the respondent's asserted preferences, is in my view the first consideration.
73. Second, Mr Kosmin submits that damages would not be an adequate remedy because there are significant difficulties in quantifying any loss. In International SOS Assistance v Secretary of State for Defence [2025] EWHC 2634 (TCC), Eyre J said:

"28. The courts have considered sundry circumstances in which it has been said that damages would not be an adequate remedy for a claimant and where it has been said that it would not be just to confine the claimant to a damages remedy. That issue is to be addressed by reference to the circumstances of the particular case and there is no general rule that damages either always will be or will never be an adequate remedy in a particular category of case.

29. There will be cases where the difficulties in the calculation of the damages are such that the court cannot be confident that it will be able to quantify the claimant's loss properly and fairly. In such cases the prospect that the court will not be able properly to reflect the claimant's loss in a damages award can mean that it is unjust to confine the claimant to its damages remedy. This can be the position where the court would have to take account not only of the lost chance of a tenderer being successful in a fair tender process but also the lost chance of it then being called upon to perform services under a framework contract (see Lettings International Ltd v London Borough of Newham [2007] EWCA Civ 1522 at [33] – [35]). It can also be the position where the allegation is that the tenders were evaluated by reference to undisclosed criteria (see Morrison Facilities Services Ltd v Norwich City Council [2010] EWHC 487 (Ch), at [31] – [34) and NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC), [2015] PTSR 566 at [80] – [83]). Another example is that of a case where it is said that a tenderer was materially misled and where it would be necessary to analyse whether different responses in communications would have made a difference to the bid (see Covanta Energy Ltd v Merseyside Waste Disposal Authority (No 2) [2013] EWHC 2922 (TCC) at [53]).

30. Care is needed before the court can conclude that difficulties in the evaluation exercise mean that damages will not be an adequate remedy (see Openview Security Solutions Ltd v London Borough of Merton [2015] EWHC 2694 (TCC) at [28] – [32] and Medequip Assertive Technology Ltd v Royal Borough of Kensington and Chelsea [2022] EWHC 3293 (TCC) at [41] – [43]). It is to be remembered that the courts are well-used to determining damages by assessing the value of a lost chance and to doing so on the basis of incomplete information. It is relevant to note the high level of difficulty which has to be shown before the court will accept that damages will not be an adequate remedy. In Morrison Facilities and Covanta the court was concerned with circumstances in which the fair and proper assessment of the damages would have been 'virtually impossible'. In Lettings International the court accepted that the proper quantification of the damages would be 'very problematical'. In NATS Services Ltd there would have been 'great difficulty in estimating the damages'."

(On the facts before him, Eyre J found that potential difficulties in the calculation of damages meant that he could not be satisfied that damages would be an adequate remedy in that case.) Mr Kosmin submitted that in the present case the difficulties of calculation of damages were acute. He pointed to the detailed allegations made in the particulars of claim and the problems to which they would give rise if damages were to be awarded. Among these were the following: that the specification was unclear and meant that bidders did not necessarily share common assumptions; that the conditions of participation had not been properly applied; that the successful bidder had priced the contract too low and had not demonstrated its ability to perform the contract; that, accordingly, the winning bid might have been disregarded if the applicants had applied proper criteria and evaluation; that other suppliers might have bid if the tender notice and associated documents had not contained material errors, in particular regarding the contract value; that there was only minimal record-keeping on the part of the applicants; that one claimed benefit of the new contract was the increased ability of Cardiff & Vale to cancel PCNs, rendering revenue more uncertain; and that this anyway was a concession contract of uncertain income.

74. I am not persuaded that the matters pointed to by Mr Kosmin indicate any good reason for supposing that it would be unjust to confine the respondent to a remedy in damages. The courts are well used both to assessing the loss of a chance and to calculating damages properly and fairly in imperfect circumstances. The respondent has the advantage of having provided services for several years under what it itself maintains is a substantially similar contract to the proposed new contract. It can therefore utilise its own records of service provision, as well as the assessments it made regarding its own bid. The fact that the review procedure for PCNs was to be new and might affect income does not constitute a reason why realistic assessments should be impossible. If it should turn out that the evaluations were made on inconsistent or previously unpublished criteria, the court is likely to be able to make findings that would enable the "correct" evaluations to be identified. Uncertainty in the specification seems to me to have been at a low level, in context, and the court will be able to consider the reasonable interpretation of the specification and how it was understood and applied in the bidding process. Although I am not engaging in an assessment of the merits of the claim, I am bound to say that I view the contention that the contract ought to have been advertised as a concession contract with scepticism. Even if that contention has more merit than currently appears, however, it does not seem to me to show that difficulties of assessment of damages would render it unjust to confine the respondent to a remedy in damages.
75. Third, Mr Kosmin submits that damages could not be an adequate remedy for the reputational damage that the respondent would suffer if it lost the Cardiff & Vale contract. Again, I am not persuaded. In MAK Systems Group Limited v Velindre University NHS Trust [2026] EWHC 8 (TCC), Jefford J said at [50]-[51]:

"50. MAK's argument [that damages will not be an adequate remedy] is principally that it will suffer reputational damage which cannot be adequately remedied in damages. It is well-established that the claimant must provide cogent or compelling evidence that it will suffer significant financial losses that are not recoverable or not adequately compensated in damages – see Bombardier Transportation UK Ltd v London Underground Ltd [2018] EWHC 2926 (TCC) at [58], Openview Security Solutions Ltd v London Borough of Merton [2015] EWHC 2694 (TCC) at [39]; and Camelot at [98].

51. The principles were further summarised by this court in One Medicare v NHS Northamptonshire ICB [2025] EWHC 63 (TCC) at [45]-[48]:

(i) The threshold for establishing that a company will suffer reputational damage as a result of no more than an unsuccessful bid is a high one.

(ii) For a commercial body, loss of reputation as such is unlikely to mean that damages are not an adequate remedy unless the court can conclude that it will lead to financial loss that is irrecoverable. That is because the relevance of reputation to a commercial body is in its contribution to the success of the business.

(iii) The fact that a bidder, even if an incumbent provider, is not successful does not in and of itself tarnish that company's reputation. If, in due course, the court concludes that the company ought to have been awarded the contract, that judgment establishes the rightness of its position.

(iv) It is only in respect of contracts of particular prestige that such an irremediable loss may be regarded by the court as likely to be suffered."

76. In the present case, the respondent has not advanced any evidence to show that this contract is of particular prestige or that it will plausibly suffer any reputational damage from the loss of the contract. Ms Wade's contention (first statement, paragraph 63) that the termination of the long-standing arrangement with Cardiff & Vale "risks creating the impression to other NHS Trusts and Health Boards in the UK that the Claimant is no longer capable of providing the services in question to an acceptable standard, when that is not the case, or of the successful tenderer painting that picture when in discussions with other organisations for similar contracts" is really no more than an assertion that the loss of a contract by the incumbent service provider damages its reputation, and it comes nowhere near meeting the high threshold of establishing a real risk of reputational damage—especially since, as Jefford J observed, the respondent's position would be vindicated if the court concluded that it ought to have been the successful bidder.
77. Mr Kosmin advanced a further reason why the respondent's interests weighed in favour of maintaining the suspension. This is because the terms of the current contract require the respondent "immediately" to remove its goods and apparatus, including signage poles and camera columns, and make good any damage to the sites. Thus it would immediately be put to expense. I do not regard that as a relevant loss: it is merely the performance of a contractual obligation. (If, on the contrary, it were considered to be a relevant loss, it would presumably be capable of sounding in damages.)
78. The position of NPCG also falls to be considered. It has not been joined as an interested party and there is no evidence regarding its position. Although I understand that the applicants have maintained communication with NPCG, that is all I know. I proceed on the basis that the delay in awarding the contract is adverse to the interests of the successful bidder. That, however, is a consequence inherent in the statutory suspension. There is no evidence in this case to make NPCG's interest in the prompt award of the contract an overriding consideration.
79. In principle, the position of other bidders and of suppliers who did not bid but could have done so, and who might have decided not to bid because (for example) of the misstatement of the value of the contract, is capable of being considered under section 102(2)(b). However, on the available evidence any such consideration would be wholly speculative, and I do not find that the balance is affected in this respect.

(c) Any other relevant matters

80. A number of other matters were raised in argument before me. Although the parties were agreed that it is inappropriate to conduct a mini-trial, each side made submissions intended to show that it had much the better of the substantive case. I do not consider that the merits of the case have any material effect on the balance for the purposes of the present application. The claim does seem to me to be advanced on a rather scatter-gun basis, and not all of the points made have immediate attraction. Further, the defence raises some serious limitation arguments. However, I cannot now determine whether it is determinative of any part of the claim. And I am not in a position to say whether the claim as a whole has substantive merit.
81. The respondent relies on what it says is the dilatory conduct of the Procurement. To the extent that I consider this relevant, I have taken it into account in assessing the weight to be given to the benefits that the applicants say they will obtain under the new contract in comparison with the services provided under the existing contract.
82. The respondent also relies on the applicants' conduct of the litigation. Various matters were raised; I have considered them all but do not think it necessary to recite them here. The most significant point was what the respondent says is undue delay in making the application to lift the suspension. In this regard, I note that the original proceedings, what is now claim no. HT-2026-CDF-000004, ought to have been commenced in Wales and that, having been commenced in England, they were required to be transferred to Wales and to be heard in Wales: CPR r. 7.1A and r. 7.1B. The order for transfer was made by O'Farrell J on 26 January 2026, but the transfer appears only to have been effected on about 13 March 2026. The applications were dated 19 March 2026 and filed on 20 March 2026. I have already considered the public interest in this case. In my view the litigation timetable to date does not add anything material to what has already been said.
83. The likely future course of the litigation is, however, a relevant matter. The parties disagree on this. A case management conference has been listed for hearing on 1 June 2026, when directions can be considered in detail. It is reasonable at this stage to assume that the parties will conduct the litigation in an efficient and constructive manner. I see no current reason to believe that disclosure ought to be extensive. The number of bids was small. They were considered by one moderator and two evaluators. Limited documentation in respect of the existing contract will be relevant, at least unless a claim for damages is introduced. The applicants have said that they might seek an order for the trial of preliminary limitation issues. Any such application will have to be considered on its own merits. It is possible that a preliminary determination of limitation issues will limit the scope of relevant disclosure, but it is not clear to me that it ought to delay the main part of the disclosure exercise, if that is dealt with pragmatically. The same goes, I think, for any possible application for summary judgment on parts of the claim on limitation grounds. My present view is that the respondent's suggestion that a judgment could be obtained by the end of October is optimistic but that the end of the year ought to be achievable. Mr Knibbe points to the possibility of an appeal against the judgment. Of course, that possibility is ever present. But I do not think it can weigh very heavily; otherwise the suspension would become something of a dead letter, as such points can always be raised. The important consideration, in my view, is that this is not a case in which vital interests (such as defence or security) are engaged or in which the continued supply of public services is under threat.
84. Finally, it is relevant to note that the respondent has offered an undertaking in the following terms: "Until the final determination of the claims by the court or further order, the claimant undertakes to pay any reasonable damages which the defendants and/or either of them and/or National Parking Control Group Limited directly sustain as a consequence of the maintenance of the suspension and which the court considers that the claimant ought to pay."

Conclusion as to the applications

85. 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. 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.