Parkingeye Limited v Velindre University NHS Trust & Anor

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”).

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.

The applications are supported by the following witness statements:

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

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.

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 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.)

Part 2 of the 2023 Act (sections 11 to 14) concerns procurement “Principles and Objectives”. Section 11(1) provides:

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.

Section 12 provides in part:

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:

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

Section 22 of the 2023 Act provides in part:

Section 23 of the 2023 Act provides in part:

Section 50 of the 2023 Act provides in part:

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

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:

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:

Section 102 of the 2023 Act, headed “Interim remedies”, provides as follows:

“Pre-contractual remedies” are provided for in section 103 of the 2023 Act:

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

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:

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

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:

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:

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:

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.

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:

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.

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.

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).)

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.

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.

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).

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.

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”.

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

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

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].

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.

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.

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.

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.

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.

“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:

“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.

“Appendix C—Specification of Requirements” set out the required services.

“NHS Wales Standard Terms and Conditions for Services v4 2023 Final Version” set out the basis of the contract to be awarded.

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):

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%.

On 24 December 2025 the applicants published a contract award notice (“the First CAN”), which identified NPCG as the successful bidder.

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.

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.

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.

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.

The present applications were dated 19 March 2026 and filed on 20 March 2026.

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 respondent has filed particulars of claim common to both claim no. HT-2026-CDF-000003 and HT-2026-CDF-000004.

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.

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

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

There is no claim for damages.

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

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.

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.

The public interest

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.

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).

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.

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.

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:

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.

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].)

The interests of suppliers

The interests of suppliers can be considered with reference to the respondent, NPCG and others. In each case, these are private commercial interests.

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:

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.

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:

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]:

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.

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:

(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.

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.

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]:

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.

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.)

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.

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.

Any other relevant matters

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.

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.

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.

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.

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.”

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.