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GREAT WESTERN TRAINS CO LTD ex parte PHILIPP FREDERICK, R v. [1997] EWHC Admin 482 (19th May, 1997)
IN THE HIGH COURT OF JUSTICE Case No. CO-1325-97
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London W2A 2LL
Monday 19th May 1997
B e f o r e
MR JUSTICE POPPLEWELL
R E G I N A
v.
GREAT WESTERN TRAINS CO LTD Respondents
ex parte PHILIPP FREDERICK Applicant
(Computer Aided Transcription of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MR PAUL BROWN (instructed by Messrs Gartside, Harding and Davis, Newport, Gwent) appeared on behalf of the Applicant.
MISS PRESILEY BAXENDALE QC and MISS JOANNA POLLARD (instructed by Messrs Burgess Salmon, Bristol) appeared on behalf of the Respondents.
J U D G M E N T
(As approved by the judge)
©Crown Copyright
MR JUSTICE POPPLEWELL: This is an application for leave to apply
for judicial review of the respondents' decision dated 21st March 1997 to grant sole and exclusive rights to ply for hire from the hackney carriage rank at Newport Central Station to a company known as Dragon Taxis. The application is brought by Mr Frederick and a large number of other taxi drivers who are all hackney carriage drivers licensed by the borough council and, by reason of the exclusive grant to Dragon Taxis, are now excluded from the taxi rank. It is not seriously in dispute that that will have a serious and adverse impact on the livelihood of the excluded drivers.
1. There are five matters that the court has to consider. First, was there sufficient consultation with the applicants by the respondents so that they had the opportunity of putting forward arguments as to why the process which the respondents adopted should not have gone forward? Secondly, if there is a proper complaint that there had not been consultation about the tendering process, is it now too late? Thirdly, is the agreement which the respondents have signed with the new company an illegal agreement in that it offends section 64 of the Town and Police Clauses Act 1847 to be read together with section 86 of the Public Health Act 1925? Fourthly, has there been delay? And, fifthly, and most importantly, is this properly a claim for judicial review in the sense that it is a public law matter and not a private law matter?
2. Miss Baxendale has submitted that the applicants' 86A and Mr Frederick's affidavit, as the secretary of the hackney carriage association, were somewhat lacking - she puts it rather higher than that, considerably lacking - in setting out fully and fairly the factual background. There are undoubtedly proper criticisms to be made in that not all the material presently before the court was exhibited to Mr Frederick's affidavit nor contained therein. But that of itself would not have persuaded me not to grant leave.
3. That is not to say that there is not a very heavy obligation on those who apply for judicial review, necessarily ex parte initially, to set out fully and frankly all the material available to them. That was not done in this case, but, as I have indicated, it plays no part in my conclusion.
4. So far as the consultation is concerned, the respondents had taken over the operation of the passenger rail service in Newport in February 1996. They had written to a Mr Lewis, who is a taxi driver on 10th October 1996. That letter is headed "Taxi Franchise Agreement" and is in these terms:
"I am writing to you to keep you informed of developments in relation to the above. As you may be aware the agreement currently in place with yourself expires on the 31st March 1997. Great Western will be advertising in a local paper or trade magazine shortly in order for companies to express interest in tendering for the franchise which will operate from 1st April 1997. Great Western are looking for a single company to carry out the service, therefore it is very unlikely that we will award the franchise to individual operators. I will keep you personallly informed of developments but would appreciate your co-operation throughout the process."
5. That letter, in addition to being sent to Mr Lewis, was sent either to 54 or 56 other existing listing holders. Thereafter the correspondence and documents show that this question of plying for hire at the station was the subject of considerable anxiety, discussion and dispute among those involved, and it is not necessary to set out all the correspondence. It is quite clear that by 10th October, if not earlier, the decision to tender, as opposed to allowing individual taxi drivers to ply for hire from the station, was what the respondents had in mind. Accordingly, if there is complaint about the absence of consultation, the time starts to run on the 10th October.
6. I am, however, satisfied that all those who needed to know about the question of tendering knew at an early stage and could and did make their objections. They knew indeed that their licences were going to expire on 31st March. They knew, if they had taken the trouble to find out, and a substantial number did, that 14th February 1997 was the tender closing date.
7. I am satisfied, therefore, that the criticism about the absence of consultation as a fact is misplaced and, secondly, that if there was a legitimate complaint about the absence of consultation, then it has not been made promptly nor within three months.
8. Mr Brown, who has conducted the applicants' case with great skill, drew my attention to the decision of Lord Denning in R. v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association [1972] 2 Q.B. 299, where the local authority had proposed to alter the number of taxi cab licences in its area. It was held that they were under a duty to hear those affected before coming to a decision adverse to their interests. In my judgment, that was sufficiently carried out in the instant case, although, as Mr Brown points out, Miss Williamson did not keep the licence holders personallly informed of the development. However, in my judgment, the consultation point fails for both the reasons that I have given.
9. The next point that is made is this: the agreement, a copy of which is in the papers is dated 1996. It is a tender document, but I understand the conditions which actually obtained in the agreement are the same. It indicated that the proprietor shall, among other things, supply Great Western with names of responsible persons, ie supervisors and such like, responsible for the policing of the taxi rank. There was an obligation on the proprietor to police the area.
Section 64 of the Town Police Clauses Act 1847 provides in its material parts as follows:
"Any driver of any hackney carriage who... obstructs or hinders the driver of any other carriage in taking up or setting down any person into or from such other carriage, or who wrongfully in a forcible manner prevents or endeavours to prevent the driver of any other hackney carriage from being hired, shall be liable to a penalty"
10. Section 76 of the Public Health Act 1925 indicates that section 64 applies "...in all respects to hackney carriages standing or plying for hire at any railway station or railway premises... as if such railway station or railway premises were a stand for hackney carriages or a street."
11. As I understand the argument, by giving exclusive use of the stand to Dragon Taxis, there is said to be a breach of section 64, because it will hinder or obstruct the driver of the applicant's vehicles contrary to that section. If, as I indicated in the course of argument, all that was required was for the proprietor, either himself or through the respondents, to take out an injunction against the applicants, that is also said to be something which would hinder the drivers like the applicants.
12. It seems to me that section 64, to put it in a very simple way, is there to prevent a punch-up between rival licence holders. The whole language of "obstruct", "hinder", "wrongfully", "in a forcible manner" and so on is not dealing with the situation in this case, when one lot of drivers have been given the right and the others have not. It is to deal with the situation on the ground when rival drivers may take the matter into their hands. I am wholly unpersuaded that section 64 has any bearing on the facts of the instant case.
13. Mr Brown drew my attention to a decision called Markham v. Brown (1837) 8 New Hampshire Reports 523, related to an inn keeper, where by analogy it was said that it was therefore unlawful for the respondent to discriminate between those who are allowed to ply for hire from the station and those who are not. I simply observe that the law relating to inn keepers is substantially different from the law relating to the owner of a railway station and quite different considerations apply.
14. It is not in dispute that the taxi rank in this case is on private land. The question that therefore arises is whether the contractual arrangements made by the respondents pursuant to a licence granted by the British Railway Board is subject to judicial review. I ought to have said in relation to the section 64 point that in fact the agreement was similar to that which previously obtained.
15. It is quite obvious that the British Railways Board are a public body and that the licence which the respondents hold is a licence pursuant to the Railways Act 1993. If one looks at the criteria for deciding whether a body is amenable to a judicial review, summarised in De Smith Judicial Review, it comes into the category of a respondent which is a body exercising functions which are underpinned by statute. But that, of course, is not the end of the matter because one must look and see what are the duties or responsibilities that are cast by that Act.
16. Section 4 of the Railways Act 1993 says this:
"The Secretary of State and the Regulator shall each have a duty to exercise the functions assigned or transferred to him under or by virture of this Part in the manner which he considers best calculated-
(a) to protect the interests of users of railway services;
(b) to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that he considers economically practicable;
(c) to promote efficiency and economy on the part of persons providing railway services;
(d) to promote competition in the provision of railway services;
(e) to promote measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator;
(f) to impose on the operator's railway services the minimum restrictions which are consistnent with the performance of hs functions under this Part;
(g) to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance."
(2) Without prejudice to the generality of subsection 1(a) above, the Secretary of State and the Regulator shall each have a duty, in particular, to exercise the functions assigned or transferred to him under or by virture of this Part in the manner which he considers is best calculated to protect-
(a) the interests of users and potential users of services for the carriage of passengers by railway provided by a private sector operator otherwise than under franchise agreement, in respect of-
(i) the prices charged for travel by means of those services, and
(ii) the quality of the services provided."
17. The regulator was approached in this case and indicated that he did not believe that he had any part to play in the decision which he said was for the commercial judgment of the respondents. Mr Brown says that provision of a taxi rank is part and parcel of the efficient running of a railway. Users of the railway expect, when they arrive at Newport station, to be able to have a taxi at all proper times and likewise to be able to get a taxi in the town to take them to the station. Thus the efficiency of the railway service is partly dependent on a proper taxi service. Accordingly, the question of the granting of a franchise to operate to a taxi firm or driver is part and parcel of a statutory obligation cast upon these respondents by the provision of the 1993 Act.
18. There is no sanction that can be imposed upon the respondents if they do not provide any form of taxi service or if they charge a price which is regarded by somebody as excessive. One only has to consider the number of people who are involved in providing services at a large railway station, such as the provision of newspapers, vending machines, cleaning contracting and so on, to see that there are a great number of services which are what might be described as ancillary services in relation to the provision of railway services but which, in my judgment, are not part of a public body function. The public body function does not, in my judgment, include the contractual arrangement which was entered into in this case. I use the word ancillary in contrast to primary and unrelated to the franchise agreement.
19. Mr Brown drew my attention to the Privy Council decision of Mercury Limited v. Electricity Corporation [1994] 1 W.L.R. 521 where the defendants, who were designated a state enterprise under the State-owned Enterprises Act 1986, were responsible for generating and distributing electricity throughout New Zealand to local electrical supply authorities. By a written agreement in 1987 and supplemental agreements the defendant undertook to supply bulk electricity to the plaintiff supply authority on specified terms and at prices agreed until the end of March 1993. In March 1992 the defendant gave the plaintiff 12 months' notice of termination of the contractual arrangements but nevertheless continued to supply the plaintiff. The plaintif brought an action against the defendant claiming that it had no power to determine the contractual arrangements and pleading causes of action in contract, breach of statutory duty under section 41C of the Act of 1986 and abuse of dominant position. The plaintiff applied for judicial review. The Judicial Committee held that:
"...since the defendant, as a state enterprise, was a public body established by statute, carrying on business in the interests of the public, and since its decisions made in the public interest might adversely affect the rights and liabilities of private individuals without affording them any redress, such decisions in principle were amenable to judicial review under section 4(1) of the Judicature Amendment Act 1972 and under the common law."
It was held per curiam that:
"It does not seem likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith."
20. Secondly, I was referred to a decision, unreported I believe in the Queen's Bench Division on 12th March 1993, in the case of The Lord Chancellor ex parte Hibbert and Sanders (A Firm) and Another where the Divisional Court consisting of Lord Justice Rose and Mr Justice Waller, as he then was, were dealing with a challenge by a rival firm of shorthand writers to the appointment of another firm, Barnet Lenton, in relation to shorthand services at Chelmsford County Court. The Divisional Court took the view that it was not sufficient to create a public law obligation simply to say that the Lord Chancellor's Department was a governmental body carrying out governmental functions and appointing persons to public office: Lord Justice Rose said: ( not available for checking )
"What has been described in the case as a statutory underpinning produces the example of the additional requirement. If the governmental body has a statutory obligation to negotiate a contract in a particular way with particular terms and fails to perform that statutory obligation, one immediately has the additional public law obligation. To have a right which can be the subject of review that right must flow from the statute if it is to a statute that one has had to look for providing the public law element. It is not enough to say simply that the governmental authority is acting by reference to certain statutory provisions without the additional factor, that it is these statutes which impose the obligation which is said to have been broken."
21. There is more to like effect.
22. It seems to me that the decision of Hibbert and Sanders , to which I have made only the briefest reference, encapsulates all the law that is necessary on this aspect of the case. While, in my judgment, the Great Western Train Company are susceptible to judicial review, that susceptibility exists only in relation to those of the decisions which in some way are either statutorily underpinned or involve some other sufficient public law element as to which Lord Justice Rose said there is no universal element.
23. Finally, it is perfectly clear that the applicants were aware that the tender closing date was 14th February. Their licences expired on 31st March and it was likely that the new licences would be issued on 1st April, as indeed they were, and it is not until 15th April that the 86A is issued, by which time the licences had been issued, money has been paid over and third party interests are much affected. There has, in my judgment, been delay in that the matter has not been brought promptly.
24. For all those reasons, notwithstanding, as I have indicated, the well presented argument on the part of the applicants, this application for leave must fail.
25. MISS POLLARD: My Lord might I mention one point.
MR JUSTICE POPPLEWELL: Yes, please.
26. MISS POLLARD: It was just something I was slightly concerned
about, my Lord. Neither my learned friend nor I have addressed your Lordship on an actual franchise agreement. Within a franchise agreement there is a reference to ancillary services which is a defined term. My Lord, I was only concerned because we have not drawn your attention to that or to section 27 of the Railways Act, which deals with the franchising director. Nothing in your Lordship's judgment should be taken by anyone else as dealing with ancillary services.
27. MR JUSTICE POPPLEWELL: I use the phrase as ancillary as
indicating that they are not primary - yes, how do you want me to deal with it?
28. MISS POLLARD: I wanted to draw your Lordship's attention to it in case at some later stage someone was reading -- in your Lordships judgment, as your Lordship said it, I understood ancillary services to be, as it were, without capital letters and not as defined within a franchising agreement.
MR JUSTICE POPPLEWELL: Quite right.
29. MISS POLLARD: Within section 27 of the Act.
30. MR JUSTICE POPPLEWELL: It is not intended to have any particular meaning.
31. MISS POLLARD: It was just that your Lordship happened on the very words in the franchising argument.
32. MR JUSTICE POPPLEWELL: I will rephrase it perhaps when I correct the judgment.
33. MISS POLLARD: I would not say it was necessary to do so, but I wanted to flag the point.
34. MR JUSTICE POPPLEWELL: I see. Thank you very much.
35. MISS POLLARD: My Lord, in this matter I would ask for the costs, the respondents' costs. Although it is ex parte , my Lord, there was interim relief sought, so it was a matter where the respondents had to attend. Can I just take instructions?
MR JUSTICE POPPLEWELL: Yes, please.
MISS POLLARD: ( Pause while counsel took instructions ) My instructions are to seek costs in relation to this matter. As I have said, interim relief was sought and in the light of your Lordship's judgment this matter -- the applicant or applicants were aware of this matter for some considerable time.
36. MR JUSTICE POPPLEWELL: Yes, Mr Brown, what do you say?
37. MR BROWN: My Lord, although it is an ex parte application without the interlocutory relief, we oppose the application as a matter of principle. I recognise, as we were seeking interlocutory relief, that it was necessary for my learned friends to be here. In those circumstances all I can do is call on the mercy of the court. My clients are in dire straits.
This is literally the last ditch for them. It has no bearing on whether or not the respondents should pay. In the exercise of the court's discretion and given the circumstances in which the applicants find themselves, I cannot oppose the application in principle but I would ask it in the exercise of discretion of the court.
38. MR JUSTICE POPPLEWELL: I see. Miss Pollard, is this a case where two counsel should be engaged?
39. MISS POLLARD: My Lord, in our respectful submission, it was.
40. Points of great importance for the respondent have been raised before your Lordship this morning and this afternoon, particularly in respect of susceptibility to judicial review. It was appropriate for two counsel in my submission to be instructed to deal with these matters. In addition we had the papers only some time prior to today and a certain amount of the work has been necessary in obtaining detailed instructions on the evidence, to bring all the matters before your Lordship today.
MR JUSTICE POPPLEWELL: Thank you.
41. MR JUSTICE POPPLEWELL: The respondents shall have their costs, one counsel only; and I express the view that it would be a kindness not to proceed, but I have no future rights in the matter.
42. MR BROWN: My Lord, I am very grateful. I am also grateful for the care and extensiveness of the judgment. It will help those by whom I am instructed.
43. MR JUSTICE POPPLEWELL: I am grateful to all of you for your help. Thank you very much.
_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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