Thursday 26 April 2012

LTPH V ADDISON LEE 26:04:2012

Neutral Citation Number: 2012 EWHC 1105 (QB)

Case No: HQ12X01527
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/04/2012

Before:

MR JUSTICE EDER
– - – - – - – - – - – - – - – - – - – - -
Between:

TRANSPORT FOR LONDON

Claimant

- and –

(1) JOHN GRIFFIN
(2) ADDISON LEE PLC
(3) EVENTECH LIMITED
Defendants

- – - – - – - – - – - – - – - – - – - – -
- – - – - – - – - – - – - – - – - – - – -

Martin Chamberlain and Sarah Love (instructed by Jane Hart, Transport for London) for the Claimant
Marie Demetriou QC (instructed by Maitland Walker LLP) for the Defendants

Hearing date: 23 April 2012
- – - – - – - – - – - – - – - – - – - – -
Judgment Approved by the court
for handing down
(subject to editorial corrections)

If this Judgment has been emailed to you it is to be treated as ‘read-only’.
You should send any suggested amendments as a separate Word document.

Mr Justice Eder:

Introduction

1 The present proceedings are part of a wider dispute between the parties concerning the use of bus lanes in London which, in effect, come within the control of the claimant (“TfL”). As appears below, that dispute is currently the subject of judicial review proceedings which commenced last year and are yet to be determined.

2 The second defendant Addison Lee (“AL”) operates a fleet of over 3,500 private hire vehicles (“PHVs”) and 200 chauffeur driven Mercedes Benz and BMW cars. At almost five times the size of its nearest competitor, AL is Europe’s largest private hire fleet. Mr Griffin is the founder and Chairman of AL which he established in 1975 as a private car hire business. The third defendant (“Eventech”) is a wholly owned subsidiary of AL from which AL’s self-employed drivers rent their vehicles.

3 The essence of the dispute appears from a notice (the “Notice”) which was sent on or about 14 April 2012 by Mr Griffin on behalf of AL to its drivers in the following terms:
“Addison Lee Driver Notice
Dear Driver,
The director of Addison Lee plc believes that the current bus lane regulations, which allow London Black Cabs to use the bus lanes but prohibit private hire from doing so is illegal as it discriminates against Private Hire Operators and drivers who offer a competing taxi service.
We also believe that it denies the public freedom of choice as journey times in the bus lanes are much quicker that those outside the lanes.
Our legal advice in this matter is that bus lane requirements are currently being misinterpreted to exclude PHV’s from bus lanes. Such misinterpretation is unlawful in the following respects.
a. It is in breach of European rules relating to the freedom of establishment and freedom to supply services.
b. It infringes the general EU principal of equal treatment.
c. It infringes the English common law principles of equality before the law.
d. It denies free and fair competition in providing an unfair advantage to one group of commercial operators over others.
Addison lee has sought and been granted a judicial review on this issue which is due to be heard by the end of the year. In the meantime Addison lee believes that we cannot allow our customer to continue to be victims of this unfair discriminatory treatment.
As chairman I can advise you that a lawful interpretation of the bus lane regulations entitles Addison lee drivers with private hire identifies to use all bus lanes in the same way as our competitors. Accordingly you are fully entitled to use the bus lanes.
We can confirm that entry into the bus lanes is not an endorsable offence and that we will indemnify all Addison lee drivers from any fines or other liabilities that may result from using the bus lanes as a result of this advice.
Should any conflict arise between yourself and any black taxi operator please be patient, make a note of any details and use your camera where possible.
Signed
John Griffin
Chairman, Addison Lee plc”

The application
4 On 16 Aril 2012, TfL issued an application notice for injunctive relief in effect seeking an interim injunction (a) requiring AL to withdraw the Notice and (b) restraining Mr Griffin, AL and Eventech from repeating such conduct and, in particular, instructing or encouraging its drivers from using London bus lanes. Meanwhile, on the same day i.e. 16 April 2012, AL issued a press release (the “press release”) in the following terms:

“Addison Lee Instructs Drivers to use Bus Lanes

Apr 16, 2002

Chairman John Griffin Instructs Drivers to Use Bus Lanes Pending a Judicial Review

John Griffin, founder and chairman of Addison Lee, the UK’s largest minicab company, has today issued a letter to Addison Lee’s 3,500 minicab drivers, instructing them to use the bus lanes. Addison Lee will indemnify its drivers from any fines or payments that result from this action – potentially £1,000 per offence.”

At the same time, the press release was also posted on AL’s website where it remained until, at least, the commencement of this hearing on 23 April.
5 Prior to the commencement of this hearing, TfL indicated that it would not pursue the relief sought in paragraph (a) above but, instead, would seek other relief; and the defendants indicated that they would be prepared to give certain undertakings which were as follows:

“(i)​The Defendants will remove forthwith from the website of the Second Defendant the press release, dated 16 April 2012, entitled ‘Addison Lee Instructs Drivers to use London Bus Lanes’, a copy of which is appended to this Schedule.
(ii)​The Defendants, and each of them, until [​], will not instruct any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers.
(iii)​The Defendants, and each of them, until [​], will not repeat the offer made by the First Defendant, by letter dated 14 April 2012, offering to pay any fines or other penalties incurred by private hire vehicle drivers as a result of contravening legislation governing the use of bus lanes.”
6 Notwithstanding these undertakings, TfL has pursued its claim for additional interim relief, the precise form of which changed in the course of the hearing. At the commencement of the hearing, Mr Chamberlain on behalf of TfL provided a draft of the relief sought which was, in essence, as follows:

“The Defendants, and each of them, be restrained until [​] from:
(a) ​encouraging or causing or permitting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers;
(b)​discharging, or reimbursing any person in respect of, any fines or liabilities incurred for contravention of legislation governing the use of bus lanes on or after 23 April 2012.”
7 In the course of argument, I indicated to Mr Chamberlain that I considered that there were, at the very least, considerable difficulties with the formulation of the relief sought in paragraph (b) above; and he indicated to the Court that in any event he would wish to reformulate paragraph (a) to bring it into line with previous correspondence from TfL. In the event, after the short adjournment, Mr Chamberlain produced a further redraft of the relief sought which was in two parts (ie an injunction and an interim declaration) and was, in material part, in the following terms:

“Prohibited Acts
The Defendants, and each of them, be restrained until determination by the Administrative Court of the judicial review proceedings in claim CO10424/2011 or further order from:
(a) ​causing, encouraging or assisting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers; or
(b)​communicating to any person that they will discharge, or reimburse any person in respect of, any fines or liabilities incurred for contravention of legislation governing the use of bus lanes on or after 25 April 2012, whether pursuant to the indemnity contained in the Addison Lee Driver Notice of 14 April 2012 or otherwise.
Declaration
There be an interim declaration pursuant to CPR r. 25.1(1)(b) that the indemnity given in respect of fines and other liabilities incurred as a result of contravention of legislation governing the use of bus lanes in the Addison Lee Driver Notice of 14 April 2012 (and repeated subsequently) is void and unenforceable as respects contraventions of that legislation occurring after 14 April 2012.”

Urgency
8 On behalf of TfL it is said that the application is urgent because, unless relief is granted, there is a likelihood that the defendants’ conduct:
(i) will cause some of AL’s PHV drivers to commit breaches of the criminal law, exposing them to prosecution;
(ii) will cause serious difficulties to TfL, the police and the appeals mechanism in enforcing and adjudicating upon large numbers of contraventions of traffic legislation;
(iii) will cause confusion among other PHV drivers and motorists as to the status of existing traffic regulations relating to bus lanes; and
(iv) will cause congestion and may lead to traffic disruption on London’s roads.

The legislative background
9 TfL is a statutory corporation, created by s. 154 of the Greater London Authority Act 1999 (“the 1999 Act”). TfL has a duty, under s. 154(3) of the 1999 Act, to exercise its functions to facilitate the Greater London Authority’s discharge of its general transport duty (namely, its duty under s. 141 to secure the provision of safe, integrated, efficient and economic transport facilities and services to, from and within Greater London). It has a power under para. 32 of Sch. 11 to the 1999 Act to do “all other things which in its opinion are necessary or expedient to facilitate the discharge by it of any of its functions”.
10 Pursuant to s. 253 of and Sch. 20 to the 1999 Act, TfL is responsible for the licensing of hackney carriages (also known as “taxis” or “black cabs”) in London. Pursuant to s. 254 of and Sch. 21 to the 1999 Act, it is responsible for the licensing of PHVs (also known as “minicabs”) in London.
11 Under section 121A(1A) of the Road Traffic Regulation Act 1984 (“the 1984 Act”), TfL is the traffic authority for all GLA roads. GLA roads are defined in sections 329(1) and 14D of the Highways Act 1980. In essence, they are the most important roads in London.
12 As traffic authority, TfL is empowered, under s. 6 of the 1984 Act, to make orders for controlling or regulating vehicular and other traffic on the roads for which it is the traffic authority. TfL has made a large number of such traffic regulation orders (“TROs”) designating certain traffic lanes as bus lanes.
13 The effect of these TROs is that only those vehicles that are prescribed may use the designated bus lanes. TfL’s general policy regarding the designation of taxis and PHVs is as follows:
(i) For most bus lanes, taxis are allowed both to use the bus lane as a through-route and to pick up or set down passengers.
(ii) For most bus lanes, PHVs are allowed to enter the bus lane to pick up or set down passengers. They are not allowed to use the bus lane as a through-route.
14 The TROs designate the vehicle types that are allowed to use the bus lane in question. Many of them designate “taxis” as permitted vehicles. These TROs define “taxi”, by reference to reg. 4 of the Traffic Signs Regulations and General Directions (TSRGD), as follows (so far as material in England & Wales):
…a vehicle licensed under
(i) section 37 of the Town Police Clauses Act 1847; or
(ii) section 6 of the Metropolitan Public Carriage Act 1869
or under any similar enactment.
15 For present purposes the defendants accepted or at least did not dispute that the relevant sections of the Town Police Clauses Act 1847 and the 1869 Act refer to hackney carriages that are licensed to ply for hire; that within London Black Cabs are licensed to ply for hire but PHVs are not; and that on this basis the effect of current legislation, on its face, is that bus lanes are designated for use by taxis, but not PHVs.
16 Section 8(1) of the 1984 Act reads as follows:
Any person who acts in contravention of, or fails to comply with, an order under section 6 of this Act shall be guilty of an offence.
17 The offence created by s. 8 is triable summarily. The maximum penalty is a level 3 fine (currently £1,000): see para. 1 of Sch. 2 to the Road Traffic Offenders Act 1988 (the 1988 Act). The offence is also designated as a “fixed penalty offence” (see s. 51 and Sch. 3 to the 1988 Act), which means that offenders are offered the opportunity to discharge any liability to conviction by payment of a fixed penalty.
18 TfL and London local authorities also have powers of civil enforcement in respect of such contraventions: see Part II London Local Authorities Act 1996 and associated legislation.

TfL and London local authorities also have powers of civil enforcement in respect of such contraventions: see Part II London Local Authorities Act 1996 and associated legislation.

The dispute
19 As noted above, the defendants accept or at least do not dispute that, “on its face”, the legislation governing the use of bus lanes draws a distinction between taxis and PHVs. However, it is the defendants’ case that this distinction is contrary to EU law and irrational.
20 On 28 October 2011, Eventech filed a judicial review claim challenging on those grounds the decision of the Parking Adjudicator to reject its appeal against two Penalty Charge Notices (“PCNs”) issued by Camden London Borough Council to AL PHVs for contravening the bus lane legislation. The Parking Adjudicator indicated that he did not intend to make submissions. Camden did not file Summary Grounds. TfL had not been served and so could not do so itself. It accordingly applied to be added as an Interested Party. That application was granted by Mr Michael Kent QC sitting as a Deputy High Court Judge on 2 March 2012. At the same time, he also granted Eventech permission to apply for judicial review. In doing so, he made these observations:
“The Defendant understandably does not wish to take an active part in these proceedings but opposes the grant of permission without giving reasons. Transport for London who I have only added as an Interested Party as part of this Order have necessarily not filed an Acknowledgement of Service or summary grounds of defence. I do not therefore have any reasoned opposition to the grounds put forward on behalf of the Claimant. These grounds appear at first sight surprising in suggesting that EU law has any bearing on the lawfulness of traffic restrictions of the sort under challenge but the matter is clearly important to the Claimant and needs to be resolved. For that reason I give permission without first ordering summary grounds of defence to be filed by the Interested Party who should however serve details grounds for contesting the claim as provided for below.” (Emphasis added.)
21 Procedural directions were then given, but these did not include setting the claim down for hearing. Ordinarily that would be done only after detailed grounds for defending the claim had been filed. In this case, there was no application in the Claim Form for expedition and, until recently, it had never been suggested that the resolution of the challenge was urgent.
22 On the present hearing, there was some debate as to the underlying merits in relation to the judicial review proceedings. On behalf of TfL, Mr Chamberlain accepted that the issues raised in the judicial review proceedings were “arguable” although he submitted that the terms in which permission was granted to Eventech hardly constituted a ringing endorsement of its claim. He also accepted that it would not be appropriate to embark on a detailed consideration of Eventech’s arguments in the judicial review claim although he submitted that it was more likely than not that TfL would succeed and that insofar as may be necessary I should proceed on that basis.
23 In contrast, Ms Demetriou QC on behalf of the defendants submitted that the present regime constituted flagrant discrimination in favour of black cabs and against PHVs; that this gave black cabs a significant unfair competitive advantage causing PHV drivers serious loss; that so far as AL and its drivers were concerned, such loss was estimated to be of the order of £12.5m per annum; and that such loss would be heightened in the run-up to the Olympic games. Further, Ms Demetriou QC submitted that the effect of the present regime was to damage AL’s ability to do business both in this country and abroad. In that context, she referred in particular to the decision of the House of Lords in Regina (Countryside Alliance and Others) v A-G [2008] 1 AC 719. In summary, Ms Demetriou QC submitted that the defendants had a strong case on the merits and, at the very least, TfL could not show that it was more likely than not that it would succeed in the judicial review proceedings.
24 In the event, it seems to me both unnecessary and undesirable at this stage for me to express any view on the merits save to say that (i) as is common ground, the effect of the legislation is on its face as I have stated above and (ii) the case advanced by Eventech in the judicial review proceedings is, at least, arguable.

The legal position in relation to interim relief in judicial review proceedings
25 It is well established that a party challenging domestic legislation as incompatible with EU or otherwise ultra vires is entitled to seek interim relief to suspend the operation of the challenged legislation pending the determination of the claim; see R v Secretary of State for Transport ex p. Factortame (No. 2) [1991] 1 AC 603, per Lord Goff at 672-674. The test for the grant of interim relief is the same whether the challenge is brought under EU law or domestic law. As to the application of that test, Lord Goff said this at 673:
…if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being from enforcing the law.
He continued as follows at 674:
…the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.
26 Interim relief is not limited to injunctive relief. As submitted by Mr Chamberlain, it was open to Eventech, for example, to seek an interim declaration as to the way in which the TROs should be interpreted pending the outcome of the challenge: see CPR Part 25.1(1)(b). There is no indication that the principles applicable to the grant of such a declaration differ from those applicable to interim injunctions. Indeed, “[a]s a practical matter, in most instances an interim injunction will achieve the same objective as an interim declaration”: White Book, para. 25.1.15.
27 Thus, Mr Chamberlain submitted that Eventech’s advisers were, it may be assumed, aware of the hurdles they would have to surmount if they were to obtain interim relief to suspend or “read down”, pending the outcome of the challenge, “what is on its face the law of the land”. At any rate, they chose, for whatever reason, not to seek any such relief.

The defendants’ conduct since 2 April 2012
28 The recent background to the present application is as follows.
29 On Monday 2 April 2012, Mr Griffin telephoned TfL’s Director of Taxis & Private Hire, John Mason, to inform him that he intended on 9 April to issue to AL’s drivers a written instruction that they should use bus lanes marked for use by taxis and that he intended to issue this instruction in writing on Monday 9 April. Mr Griffin confirmed this intention in another telephone call on Wednesday 4 April.
30 Howard Carter, TfL’s General Counsel, emailed Mr Griffin on the evening of Wednesday 4 April warning him that drivers failing to comply with bus lanes legislation would be committing a criminal offence and warning him of the possibility of proceedings seeking injunctive relief. Mr Carter invited Mr Griffin to confirm, by noon on Thursday 5 April, that he would not be issuing an instruction along the lines intimated. No such confirmation was given. Mr Mason therefore telephoned Mr Griffin shortly after 12 noon on Thursday 5 April to enquire whether he had received the letter and whether he intended to respond. Mr Griffin confirmed that he had received the letter and would not be responding. He said (as Mr Mason recalls):“I’m ready. All I’ve got to say is ‘bring it on’.”
31 In the light of this indication, Caroline Moore, TfL’s Head of Public & Regulatory Law, sent an email to Mr Griffin on the afternoon of Thursday 5 April to indicate that TfL was considering its next steps, which might include an urgent application for interim injunctive relief.

Within an hour of that email, Julian Maitland-Walker, a Partner in Maitland Walker LLP (who act for the defendants), emailed Ms Moore in these terms:
“Thank you for your email dated 5 April (16:59) addressed to my client, John Griffin of Addison Lee.
I write to confirm that I am instructed to act on behalf of John Griffin and Addison Lee in this matter.
We shall be considering the points raised by Mr Carter in his letter dated 4 April 2012 with Counsel early next week and will let you have a response in due course.
In the meantime I can confirm that the letter of instruction/advice which my client plans to send to his drivers will not go out unless and until we have responded to Mr Carter’s letter.”
33 On the same evening (Thursday 5 April), Ms Moore replied for TfL in these terms:
“It had been our intention to issue an application for interim injunctive relief imminently. However, on the basis of your email, we will not do so pending your client’s response and on the clear understanding that we will be provided with at least 48 hours to consider your letter of response before your client takes any further action in relation to his instruction/advice; please confirm that this will be the case.
Please note that I am out of the office next week, as is Howard Carter, and this matter will be handled by my colleagues Andrea Clarke and Abbey Ameen, copied in to this email.” (Emphasis added.)
34 The Easter weekend then intervened.
35 On the first working day after the Easter weekend, Tuesday 10 April, Maitland Walker for the first time filed on Eventech’s behalf an Application for Urgent Consideration in the judicial review claim, seeking an order that the claim be expedited and heard by the end of June 2012. Draft case management directions were attached, including a direction that TfL should file its detailed grounds and evidence by 1 May. The reasons for supporting the application included these:
“Key events in 2012 such as the 2012 Olympics and the Queen’s Diamond Jubilee will significantly increase the number of visitors to London and the UK, increasing the competitive disadvantage the claimant suffers as a result of the legislation and harming its financial performance and commercial operations.
In a letter dated 4 April 2012 (copy attached), Transport for London (TfL) indicate that if the drivers use the bus lanes in London that black cabs are currently permitted to use before the substantive judicial review hearing, TfL might apply to the court for interim injunctive relief to restrain a threatened breach of the criminal law.”
36 It can be seen from the above that Eventech were saying to the Court that the judicial review claim should be expedited because:
(i) they were going to lose money if the claim were not heard quickly; and
(ii) they had been threatened with proceedings for an injunction if they did not so comply.
Mr Chamberlain submitted that this necessarily implied that Eventech recognised that it would have to comply with the legislation in the interim; and that, if the defendants had been intending at that stage to advise their drivers not to comply with the relevant legislation, the application for expedition would have been misleading in a fundamental respect and improper. Be that as it may, there was certainly no indication at that stage of any intention by the defendants to instruct AL’s drivers to use bus lanes.
37 TfL received a copy of Eventech’s Application for Urgent Consideration and proposed directions on Wednesday 11 April.
38 At 16.51 on Friday 13 April, Maitland Walker sent a faxed letter dated 12 April, addressed to Mr Carter (but not to Ms Clarke or Mr Ameen), responding to the substance of Mr Carter’s letter of 4 April. Maitland Walker argued that, since Eventech’s claim for judicial review was to the effect that TROs which refer to “taxis” should be interpreted as applying also to PHVs, it was not arguing that the TROs were unlawful; so there was no need for it to seek interim relief to suspend them; and AL and Mr Griffin were fully entitled to advise their drivers to this effect. Reference was made to AL’s and Mr Griffin’s rights to freedom of expression under Article 10 ECHR.
39 The letter was stamped as received by TfL Legal administrative staff on 13 April, but not seen by Mr Carter (who, as Maitland Walker had been specifically advised, was on leave) or by any other lawyer. It came to the attention of TfL’s lawyers on the morning of 16 April.
40 At 15.04 on Saturday 14 April, Mr Maitland-Walker emailed Ms Moore, replying formally to her last email of 5 April. Mr Maitland-Walker’s email was in these terms:
“Thank you for your email. I write to confirm that we will give you at least 48hours [sic] notice prior to our client taking further action in relation to the proposed letter to the Company’s drivers.”
41 No mention was made of the letter that had been faxed on the previous day. There was no reference to when, in Maitland Walker’s view, the 48 hour period would expire.
42 Shortly after that, on the afternoon of Saturday 14 April (on any view less than 48 hours after receipt of Maitland Walker’s fax), Mr Mason started to receive calls from taxi drivers suggesting that, contrary to the express assurance given by Mr Maitland-Walker, AL had in fact already sent out the Notice to its PHV drivers advising them that they could drive in bus lanes. (The terms of the Notice are set out above.) Mr Mason then telephoned Mr Griffin to ask whether this was true. Mr Griffin confirmed that it was. TfL learned of the contents of the Notice from a taxi driver who had procured a copy of it.
43 It is right to say that the Notice does not in terms instruct drivers to use bus lanes. However, as submitted by Mr Chamberlain, five points may fairly be made about this Notice:
(i) It gives unequivocal advice to AL’s PHV drivers that “you are fully entitled to use the bus lanes”.
(ii) It advises that contravention of bus lane legislation “is not an endorsable offence” without pointing out that it is a criminal offence in respect of which individual drivers remain personally liable to prosecution.
(iii) It offers AL’s PHV drivers an indemnity “from any fines or other liabilities that may result from using the bus lanes as a result of this advice” without giving any indication about whether such an indemnity would be valid or binding.
(iv) It envisages that the actions which it encourages AL’s PHV drivers to take may give rise to “conflict” between them and black cab operators, albeit it encourages them to be “patient” in that event.
(v) It is signed by Mr Griffin in his capacity as Chairman of AL.
44 At 23.42 on Saturday 14 April, Andrea Clarke, TfL’s Director of Legal, sent Mr Maitland-Walker an email in these terms:
“Thank you for your email and confirmation that your client will give at least 48 hours notice prior to taking further action in relation to the proposed instruction to drivers to drive in bus lanes which on its own terms was helpful.
However, shortly after receiving your email Mr Mason received information that a notice has already been issued to Addison Lee drivers to take effect on Monday 16 April. Mr Mason telephoned Mr Griffin at approximately 7.15pm this evening to ask if such a notice had been issued to drivers and Mr Griffin indicated that this was the case. Since this time Mr Mason has received a copy of the attached signed notice apparently issued by your client to its drivers.
It would therefore appear that contrary to your express assurances (on the basis of which my client decided not to seek interim relief during the Easter Holiday) a notice has in fact been issued.
Please revert by return by no later than noon on Sunday 15 April indicating whether:
(a) you are still instructed on this matter;
(b) our understanding is correct that a notice has been issued to drivers as described above; and
(c) if a notice has been issued, your client will undertake to immediately withdraw the notice sent and agree not to reissue any further instruction/advice without providing at least 48 hours prior written notice.
The events of this evening are particularly difficult to understand in light of your client’s application during the course of last week for an expedited hearing in respect of the judicial review proceedings which specifically referred to your client losing profits as a result of complying with the PHV licensing regime in its current form and the possible injunctive relief that might be sought from my client in respect of the above.
It appears that for the second weekend in a row that your client is proposing unilateral action without going through the appropriate process which is causing serious and irresponsible disruption to the PHV licensing regime.
I look forward to hearing from you.”
45 On Sunday 15 April, TfL issued a notice by email to those registered to receive such emails warning PHV drivers that, if they drove in bus lanes, they would be committing a criminal offence and, if they did so repeatedly, they may be liable to regulatory action on the ground that they were no longer fit to hold a licence.
46 On Monday 16 April, at 08.29, Ms Clarke sent an email to Mr Maitland-Walker noting that she had not received a reply to her email of 14 April and indicating that TfL intended to issue proceedings for injunctive relief.
47 Mr Maitland-Walker replied at 10.10 indicating that:
(i) his client (AL) had sent its drivers a letter posted on Saturday 14 “on the basis that it would be received by the drivers by post this morning, well after the expiry of the agreed period of 48 hours following our substantive response to Howard Carter’s letter”;
(ii) his client (AL) restated its position that it was “fully entitled to advise drivers as it sees fit”;
(iii) the suggestion that this action would cause any significant disruption to the road network was disputed.
48 As to the terms of the Notice, Mr Griffin explained his position in paragraph 48 of his first witness statement:
“My letter does not instruct our drivers to do anything. No pressure is being put on drivers to use bus lanes. It is entirely a matter for each driver whether or not they do so and drivers who choose not to use the bus lanes will not be subject to any disciplinary action or disadvantage. They remain free as they always have to choose whether to use bus lanes or not.”

49 Nevertheless, as stated above, on Monday 16 April, AL issued the press release which I have already quoted and which on its face instructed its drivers to use the bus lanes.
50 In a recording shown on ITV’s London Tonight on 16 April, Mr Griffin was pictured in the rear passenger seat of an AL vehicle (registration LR11 KVL), saying to the driver:

“OK, driver, I’d like you to go into the bus lane now and I will indemnify you against any fines or any activities. This is not an endorsable offence and any money you are charged I will pay”.

The reporter then says:

“An extraordinary instruction from the passenger in the back – break the law. The driver does as he is told. The passenger is his boss, John Griffin, head of the UK’s biggest minicab firm.”

The recording shows the driver doing as instructed and driving in the bus lane, on what appears to Mr Mason, in his Second Witness Statement to be Euston Road.

51. The Times reported as follows on 16 April:
“John Griffin, the founder of Addison Lee, wrote to his 3,500 drivers telling them to use the restricted lanes and promising to pay any fines incurred.”

52. The Guardian reported as follows on 16 April:

“London cab firm drivers told to defy bus lane law



London’s biggest minicab company and Transport for London (TfL) are on collision course after the company’s chairman instructed his 4,000 drivers to defy the law and use bus lanes.”

53. ITV News reported as follows on 17 April:
“John Griffin instructed Addison Lee drivers to use the lanes and he would pay any fines they incurred.”

54. The Telegraph said this on 19 April:
“John Griffin, chairman and founder of Addison Lee, has written to its 3,500 drivers in London instructing them to use the bus lanes and promising to indemnify them against any fines they incur.”

55. The Independent said this on 19 April:
“London’s leading minicab firm has instructed its drivers to risk fines of up to £1,000 by using the capital’s bus lanes.”

56. In addition to the foregoing, Mr Chamberlain relies on the fact that if the position was indeed that AL and Mr Griffin were not instructing AL’s drivers to use bus lanes then at no stage did they seek to correct the press release or any of the above reports. Further, Mr Chamberlain also relies on the defendants’ public statements (as reported) about the effect and purpose of the Notice. In particular:
(i) On 16 April, The Evening Standard reported as follows:

“A spokesman for Addison Lee, Britain’s biggest minicab firm with 3,500 drivers, said ‘several hundred, if not thousands’ of minicabs had entered the lanes this morning.

He added: ‘We do about 500 to 600 jobs an hour through central London. We estimate about 60 to 70 per cent are using the bus lanes when they have passengers.’”

(ii) On 17 April, The Daily Telegraph said:

“A spokesman for Addison Lee said the company decided to reignite debate this week in an effort to speed up its latest legal challenge.”

(iii) Also on 17 April, The Sun reported:

“[Mr Griffin’s] latest move is designed to speed up the outcome of a judicial review on the use of the capital’s bus lanes.”

(iv) On 18 April, The Guardian reported as follows:

“A spokesman for Addison Lee said the firm expected to receive ‘hundreds if not thousands of tickets by the end of the week’.”

(v) On 20 April, The Guardian reported as follows, on the basis of an interview with JG on Wednesday 19 April:

“By Thursday lunchtime, Griffin’s exhortation to his drivers to barge in on the black cabs’ territory had resulted in about two dozen Addison Lee drivers being issued with penalty charge notices for using the bus lanes. More drivers got away with it because of a lack of enforcement cameras, the company said.

So far, the extent of the bus lane disobedience has not extended to the ‘hundreds if not thousands’ of minicab drivers the firm had expected, which Steve McNamara, general secretary of the Licensed Taxi Drivers Association (LTDA) regarded as “summing up Addison Lee drivers’ lack of confidence in John Griffin’s plan”.

Not true, said Griffin, who believes that many others will join in when they realise that his offer to cover their fines is genuine and that the company’s lawyers are primed to fight TfL in the courts. They will argue that the current ruling keeping private hire vehicles out of the bus lanes is anti-competitive and breaches English and European principles of equality before the law.

‘I am ready to rock,’ Griffin told the Guardian on Thursday at Addison Lee’s bustling Euston headquarters, where operators pore over banks of screens as if they were air traffic controllers.”

57. Meanwhile, on the evening of 15 April, TfL issued its own Notice 05/12, warning PHV drivers that they must not drive in bus lanes marked for use by taxis making clear to them that, if they did so, they would be committing a criminal offence and warning them that, if they committed repeatedly contraventions of traffic regulations, their fitness to hold a PHV driver’s licence might be called into question. In light of continuing and increasing direct communications from members of the public, TfL issued a second Notice 06/12 confirming TfL’s position and updating the public as to what TfL was doing in response to AL’s actions.
58. TfL’s own data on number of contraventions since 16 April 2012 are set out below. However, the following should be noted. First, as explained by Mr Mason in his witness statements, the roads for which TfL is traffic authority (some 580 km) do not by any means amount to all the bus lanes in London; and TfL does not have reliable figures for bus lane contraventions from other traffic authorities. Second, although there was comment in the press apparently from AL’s spokesman that more drivers “got away with it” because of a lack of enforcement cameras, this was disputed by Mr Mason. However, he accepted that not every inappropriate use of a bus lane will result in a PCN.

Table 1: PCNs

Date

Addison Lee

Other PHVs

Total

16.04.2012

1

Not available

1

17.04.2012

2

Not available

2

18.04.2012

16

Not available

16

19.04.2012

16

3

19

20.04.2012 (until 14:30)

25

12

37

Table 2: FPNs

Date

Addison Lee

Other PHVs

Total

16.04.2012

6

1

7

17.04.2012

0

5

5

18.04.2012

0

1

1

19.04.2012

0

0

0

20.04.2012

(before 10:00)

4

-

-

Criminality on the face of the legislation

59. As stated above, the defendants accept or at least do not dispute that, on the face of the legislation, it is an offence for a PHV driver to drive in a bus lane marked as available for use by taxis. Any PHV driver who does so would, on the face of the legislation, commit a criminal offence contrary to s. 8 of the 1984 Act.
60. Anyone who does an act capable of encouraging or assisting the commission of an offence intending to encourage or assist its commission himself commits an offence pursuant to s. 44 of the Serious Crime Act 2007, unless he can avail himself of the defence of “acting reasonably” pursuant to s. 50 of that Act.
61. In Drake v Morgan [1978] QB 56, Forbes J had to consider whether a union could lawfully indemnify its members in respect of fines imposed for criminal offences. It held on the facts that the union could do so, but only because the indemnity had been given after the criminal offences had been committed. Forbes J said this at 60-61:
“While there may be nothing untoward in one man agreeing to pay another’s fine after the offence is committed, it seemed to me that an agreement to indemnify a man against any fines he might incur in the future if he pursued a certain course of conduct was open to the gravest of objections.
Both counsel agree that there is no decided authority on this point and this does not surprise me, because it seems to me almost self-evident. To say effectively: “Go out and picket. Never mind if you commit an offence. We will pay your fine,” is in all probability incitement to commit an offence, and certainly aiding, abetting, counselling or procuring one.”
62. Forbes J’s reasoning was followed by Scott J (as he then was) in Thomas v National Union of Mineworkers [1986] QB 20, at 77. Scott J held that the resolution in that case, to indemnify members who might commit offences while on the picket line against any fines imposed, was contrary to public policy and void. Although the terms of the order made in that case do not appear from the report, it appears that Scott J was prepared to grant an injunction restraining the South Wales union from making any payment pursuant to that resolution.
63. It was Ms Demetriou QC’s submission that the indemnity contained in the Notice was not unlawful and that the authorities relied upon by TFL are inapplicable because, in particular, they concern indemnification in respect of action which indisputably amounted to a criminal offence whereas the present case is plainly in a different category. In particular, she submitted that the basis for the claim for judicial review is that the TROs are unlawful and that their breach does not therefore amount to a criminal offence; and that TFL’s submissions therefore beg the very question raised by the claim for judicial review (and which would be raised as a defence to any criminal prosecution against the defendants for issuing the Notice). Further, she submitted that, as TFL accepts, the defendants would have a further defence of “acting reasonably” under s.50 of the Serious Crime Act 2007; and that it follows that, if prosecuted under s.44 of that Act, they could rely by way of defence on their reasonably held belief that the TROs were unlawful even if their EU law defence were rejected.

In my judgment, these submissions suffer from a number of flaws which it is unnecessary to examine in detail. However, it seems to me that the fundamental flaw is that the indemnity given in the Notice covers “..any fines or other liabilities that may result from using the bus lanes as a result of this advice..” If Eventech succeeds in the judicial review proceedings, there will be no valid and enforceable fines or other liabilities. Thus, the indemnity can only sensibly apply in circumstances where an offence has been committed and therefore is contrary to public policy and void.
65. For his part, Mr Chamberlain accepted that although the indemnity given was void, there was nothing unlawful per se in AL in fact paying a fine incurred by one of its drivers after such fine had been imposed or other liability incurred provided at least that such payment was not made pursuant to an earlier indemnity. In light of the above, it is, in my judgment, appropriate to grant the interim declaration sought by Mr Chamberlain subject to the additional wording by way of clarification requested by Ms Demetriou QC and agreed by Mr Chamberlain viz.

“The indemnity given in respect of fines and other liabilities incurred as a result of contravention of legislation governing the use of bus lanes in the Addison Lee Driver Notice of 14 April 2012 (and repeated subsequently) is void and unenforceable as respects contraventions of that legislation occurring after 14 April 2012.

However, any decision of the Defendants, taken in a particular case after a fine has been imposed or other liability incurred for contravention of the legislation governing the use of bus lanes, to discharge, or reimburse any person in respect of such a fine or liability, would be lawful.”

66. In the course of the hearing, Ms Demetriou QC also indicated that the defendants would be prepared to give an undertaking to the court in a form similar to the injunction sought in paragraph 1(b) of the draft submitted by Mr Chamberlain but with additional words of qualification. This was subsequently confirmed in the undertaking proffered by Ms Demetriou QC on behalf of the defendants being in the following terms:
“The Respondents will not communicate to any person, in advance of a fine or liability being incurred by such person for contravention of legislation governing the use of bus lanes on or after 25 April 2012, that they will discharge or reimburse such fine or liability whether pursuant to the indemnity contained in the Addison Lee Driver Notice of 14 April 2012 or otherwise.”

67. In my judgment, such undertaking in such terms is satisfactory and, on that basis, it is not necessary to grant the order sought in paragraph 1(b) of the draft.
68. That leaves the remaining important issue between the parties ie TfL’s application for an injunction to restrain the defendants from “causing, encouraging or assisting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers.”
Vague and Imprecise
69. Ms Demetriou QC raised a threshold point viz that it was a fundamental principle that any injunction should be clear, precise and unambiguous in particular because it was important that a defendant should know exactly what he/she can and cannot do; and that the formulation of the wording of the injunction now sought by TfL failed this test. I agree that there is a general principle that an order must be expressed in unambiguous language: see, for example, Gee, Commercial Injunctions, 5th Edition, para 4.001-4.003 and CPR Part 25 PD Para 5.3. However, the proposed injunction tracks the wording in the standard form “Application for an Injunction”. Ms Demetriou QC submitted that this was irrelevant for two main reasons. First, it was always necessary to consider the suitability of the standard wording in a particular context; and here the context rendered such wording unsuitable and inappropriate. Second, the standard wording applies only where the defendant is himself being ordered not to do an act. I agree that it is always important to consider the context of particular wording but I do not consider that the present context renders the standard wording unsuitable or inappropriate. Further, the words “encourage or assist” are also used in the definition of the offence created by s.44 of the Serious Crime Act 2007. In my judgment, if those words are sufficiently precise to define an offence (which is the relevant offence), they are sufficiently precise to be included in the present injunction.

The Court’s jurisdiction to grant injunctive relief to prevent conduct that is, on the face of it, a breach of the criminal law
70. As submitted by Mr Chamberlain, it is well established that, in appropriate circumstances, public authorities are entitled to claim injunctive relief to prevent breaches of the criminal law: see eg Lewis, Judicial Remedies in Public Law, 4th ed., paras 8-41 et seq.
71. It is equally well established that subordinate legislation is presumed to be valid unless and until set aside by a court: see eg de Smith’s Judicial Review, 6th ed., para. 4-061; Hoffmann La Roche & Co. AG v Secretary of State for Trade and Industry [1975] AC 295, per Lord Diplock at 366:
“[The courts’] jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed.” (Emphasis added.)
72. It had previously been argued that injunctive relief should not be granted where the defendant had an arguable substantive defence, based on EU law. That argument was roundly rejected by the House of Lords in Kirklees BC v Wickes Building Supplies Ltd [1993] AC 227, a case in which a local authority sought and obtained injunctive relief to enforce the Sunday trading legislation at a time when a challenge to that legislation was before the European Court of Justice. Lord Goff said this at 270-271:
“It would be startling if the mere fact that the defendant invoked a Community law defence, with sufficient substance (but no more) to escape rejection under the narrowly drawn principle of acte clair, should be capable of itself of excluding this useful jurisdiction, thus providing encouragement to those seeking to profit from law-breaking activities to adopt this method of prolonging what may prove to be a source of illicit profit. However, I am unable to accept Mr. Collins’s submission [for the defendant]. I know of no authority which supports it. There are cases in which an interlocutory injunction has been granted, despite the fact that the defendant was raising a defence to the alleged crime. In Portsmouth City Council v. Richards (1988) 87 L.G.R. 757 , the Court of Appeal upheld the grant of an interlocutory injunction restraining the operation of sex shops, despite the fact that the defendant had raised a defence under article 30 of the Treaty. In City of London Corporation v. Bovis Construction Ltd., 86 LGR 660, the Court of Appeal upheld the grant of an interlocutory injunction restraining a breach of the Control of Pollution Act 1974, notwithstanding an alleged defence invoked by the defendant which had not been disposed of. Furthermore, the submission of Mr. Collins ignores the fact that, since an injunction may be granted in an emergency to restrain an infringement of the law, for example the cutting down of a tree in breach of a tree preservation order (see, e.g., Newport Borough Council v. Khan (Sabz Ali) [1990] 1 W.L.R. 1185 ), it may well be impossible in such circumstances to resolve the issue of a possible defence on the application for an interlocutory injunction. Mr. Collins sought to accommodate such cases by recognising them as an exception to his suggested rule. I cannot think that this is right. The power to grant injunctions, which now arises under section 37 of the Supreme Court Act 1981, is a discretionary power, which should not as a matter of principle be fettered by rules. In my opinion, the existence of an alleged defence is a matter to be taken into account in the exercise of the court’s discretion, when deciding whether it is just and convenient that interlocutory relief should be granted.”
73. The House of Lords went on to hold that the courts below had been wrong to refuse injunctive relief and that the question whether to require the enforcing authority to give an undertaking in damages was a matter for the court’s discretion.
74. Although Ms Demetriou QC did not dispute that the Court had jurisdiction to grant a civil injunction in support of the criminal law in an appropriate case, she submitted that the facts in Kirklees were very different in particular because there had in that case been a history of flouting the criminal law (ie a background of deliberate, flagrant and repeated breaches over a substantial period) and the penalties that had been imposed had proved wholly inadequate: that was very different from the present case. Further, there were, she submitted, a number of factors which militated strongly against the grant of injunctive relief in the present circumstances and indeed led to the conclusion that it would be inappropriate to grant the relief sought by TfL.
Freedom of Expression
75. First, Ms Demetriou QC submitted that the grant of the relief sought would constitute a serious interference with Mr Griffin’s and AL’s freedom of expression guaranteed by Article 10(1) ECHR. Further, Ms Demetriou QC submitted that two consequences follow from this:
a. S.12 of the Human Rights Act 1998 applies. S.12(4) provides that the Court “must have particular regard to the importance of the Convention right to freedom of expression”. S.12(3) provides that no relief “is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”. It follows from this that the:
“…..general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion… But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal”: Cream Holdings Ltd v Banerjee [2004] UKHL 44, at [22].”

b. The Court should not grant the relief sought unless it is satisfied that to do so would meet the requirements of Article 10(2) ECHR, namely that the draft injunction order is sufficiently clear to satisfy the requirement that it is “prescribed by law” and that the injunction is “necessary in a democratic society to prevent disorder or crime or to protect the rights and freedoms of others”.
76. In particular, Ms Demetriou QC submitted, in summary, as follows:
a. TfL must show that the conduct sought to be restrained constitutes a contravention of s.44 of the Serious Crimes Act and consequently (i) that it is more likely than not to establish that the TROs are compatible with EU law; and (ii) that it is more likely than not that a defence of “acting reasonably” would fail.
b. The evidence and submissions filed by TFL in support of its application establish neither.
c. On the contrary, it is highly unlikely that a defence under s.50 of the Serious Crimes Act would fail given the reasonably held belief of the defendants that the TROs are invalid and that their breach does not therefore give rise to a criminal offence.
d. TFL has failed to establish that it more likely than not that the TROs are compatible with EU law. Indeed, they have not yet advanced any plausible justification for their discriminatory treatment of black cabs and PHVs. The main explanation provided by Mr Mason in his witness statement for why PHVs are excluded from bus lanes is that it is necessary to limit the total number of vehicles using those lanes (para. 23 of his statement). This comes nowhere near to providing an objective justification for treating black cabs and PHVs differently. TFL could limit the number of vehicles in bus lanes by excluding black cabs from them too and thereby removing the distortion of competition between black cabs and PHVs.
e. There are no exceptional circumstances in the present case that would serve to lower the threshold. On the contrary, the consequences of the Notice are in no way “particularly grave” given that it will not necessarily lead to the commission of any criminal offences.
77. In considering these submissions, I should make plain that TfL expressly accepted that Mr Griffin and AL can still say, to the media or otherwise, that they believe their interpretation of the relevant bus lane legislation is correct and will prevail; that the current distinction, drawn on the face of that legislation, between taxis and PHVs is unjustified; and that they can lobby central Government, local authorities and TfL to seek to change the relevant bus lane legislation. Thus, the injunction sought does not and is not intended to restrain any such conduct. Nevertheless, Mr Chamberlain accepted that the injunction sought does restrict the defendants’ freedom of expression and that Article 10(1) ECHR is thereby engaged. However, Mr Chamberlain submitted that such restriction at least in the form of the injunction now sought was in reality “minimal” and not inconsistent with the ECHR.
78. I accept, of course, that pursuant to s.12(4) of the Human Rights Act 1968, the court must have particular regard to the importance of the Convention right to freedom of expression. However, as Ms Demetriou QC accepted, Cream Holdings does not lay down a “hard-edged” test. As Lord Nicholls makes plain both in the passage cited above and elsewhere in his speech (see, in particular, paragraph 20), the wording in s.12(3) Human Rights Act 1968 does not mean that the test of “more likely than not” is of universal application. As stated above, I have refrained from embarking on an evaluation of the underlying merits and proceed on the basis that Eventech’s case in the judicial review proceedings is “arguable”. In my judgment, the correct approach is as stated by Lord Diplock in Hoffman La Roche ie that the present legislation is presumed to be valid but that, as stated by Lord Goff in Kirklees, the existence of the alleged defence is a matter to be taken into account in the exercise of the court’s discretion when deciding whether it is just and convenient that interlocutory relief should be granted.
Necessary/just and convenient
79. I also accept that Ms Demetriou QC’s submission in relation to Article 10 ECHR had much force in the context of the terms of the original injunction sought by TfL. However, the position has now changed. In particular, TfL has abandoned its application requiring the defendants to withdraw the Notice; and the defendants have now proffered the undertakings referred to above. Further, although the injunction now sought is significant it is in more limited form and, in effect, is seeking to prohibit conduct which would (at least potentially) constitute a criminal offence. In that more limited form and given the circumstances of the case, the injunction sought is, in my judgment, (a) necessary within the meaning of Article 10 ECHR in particular for the prevention of crime and to protect the rights and freedoms of others; and (b) in the exercise of my discretion, just and convenient in the circumstances of the present case.
80. In reaching that conclusion, I bear in mind in particular the following matters:
a. Despite protestations to the contrary (including an assertion in Ms Demetriou QC’s skeleton argument that, and I quote, “Mr Griffin has not instructed his drivers to use the bus lanes”), it seems to me plain that Mr Griffin and AL have, in effect, been characterising the Notice sent to AL’s PHV drivers on 14 April as an “instruction”.
b. The video clip showing Mr Griffin instructing one of his drivers to go into the bus lane and offering to pay any money the driver may be charged is the clearest possible evidence of Mr Griffin’s willingness to risk flouting the law.
c. AL’s press release, headed “Addison Lee Instructs Drivers to use London Bus Lanes”, remained on its website until at least the commencement of the hearing on 23 April although Ms Demetriou QC told the court on instructions that Mr Griffin himself was unaware that this was the case. Be that as it may, as appears above, drivers will have read, seen and heard the media coverage (including the video clip), which is clear that an “instruction” has been given.
d. PCNs recorded for bus lane contraventions up to 1400 on Friday 20 April totalled about 75, of which 60 were AL vehicles. Although these numbers are small, they show an upward trend.
e. Mr Griffin and AL have embarked on a media campaign throughout last week to encourage as many as possible of their PHV drivers to use bus lanes, including by apparently exaggerating the number of contraventions.
f. Mr Griffin does not himself appear to consider that the low number of contraventions to date reflects any lack of confidence in his plan. His own prediction, as reported in The Guardian on Friday 20 April, was that “many others will join in when they realise that [Mr Griffin’s] offer to pay their fines is genuine and that the company’s lawyers are primed to fight TfL in the courts.”
g. Mr Griffin and AL have twice been reported as saying that the reason why he sent out his Notice on Saturday 14 April was “to speed up” Eventech’s judicial review claim – ie (presumably) to put pressure on TfL to agree to Eventech’s application for expedition of that claim and/or on the Administrative Court to grant it.
(I should mention that Mr Chamberlain also relied upon other aspects of the defendants’ conduct including what he said was their failure to comply with the assurance to give TfL 48 hour notice of action. However, Ms Demetriou QC told the court on instructions that this was due to a series of innocent errors. Although that explanation was not consistent with other evidence before the court, I have ignored this aspect of the defendants’ conduct.)
81. Ms Demetriou QC submitted that this is all past conduct and, given the undertakings that have now been proffered, is now irrelevant looking at the matter going forward and should be ignored. I do not agree. This is so for two main reasons. First, such conduct (in particular, the instruction to drivers to use bus lanes and the indemnity) demonstrates that there is a substantial risk that unless otherwise restrained both Mr Griffin and AL are prepared to take action which, at the very least, potentially constitutes a breach of the criminal law. Second, the undertakings leave an important gap which the injunction now sought is intended to fill. In particular, without the injunction the defendants would be free to encourage or assist any PHV driver to use bus lanes which conduct would on its face constitute a potential breach of s.44 of the Serious Crime Act 2007. Absent any undertaking to the contrary (and none was proffered) there is in my judgment a substantial risk that that is exactly what the defendants will do.
82. Furthermore, if this happens, it seems to me that based on Mr Mason’s evidence and as submitted by Mr Chamberlain, there is a substantial risk that some of AL’s drivers and other PHV drivers will be persuaded to use bus lanes; that this in turn will lead to confusion among other PHV drivers and motorists as to the status of existing traffic regulations relating to bus lanes as well as congestion and traffic disruption on London’s roads; and that enforcement against all those committing contraventions will become very difficult or impossible (straining TfL’s resources and those of the Metropolitan Police and requiring TfL to direct staff from other activities).
83. In my judgment, these considerations indicate that damages would be an inadequate remedy and, having regard to the balance of convenience, militate strongly in favour of the grant of the injunction now sought.
84. In response, Ms Demetriou QC advanced a number of submissions against the grant of an injunction which were in summary as follows. Some at least of these submissions were advanced by Ms Demetriou QC in the context of the original injunction sought by TfL. Nevertheless, for the sake of completeness, I deal with them in their entirety.
Disproportionate interference/balance of convenience
85. Ms Demetriou QC submitted that the grant of relief would be a disproportionate interference with the defendants’ Article 10 rights in particular because (i) it would not serve any significant purpose: drivers would remain free to choose whether or not to use bus lanes and incur the risk of prosecution; (ii) TfL has not established that any increase in the number of AL drivers using bus lanes should an injunction not be granted would cause it any significant damage or inconvenience; and (iii) by contrast the grant of relief would cause significant (and largely unquantifiable) damage to the defendants. Therefore the least risk of injustice lies in refusing TfL’s application. These submissions overlapped with Ms Demetriou QC’s further submissions with regard to the balance of convenience; and it is convenient to address them together.
86. First, I agree that drivers would of course remain free to choose whether or not to use bus lanes and incur the risk of prosecution. However, in my view, this is of little, if any, weight. The question is whether these defendants should in effect be restrained from causing, encouraging or assisting such conduct and, in that context, it seems to me legitimate to have regard to the risks that will ensue if they are not so restrained even if the individual PHV drivers are free to choose.
87. Second, in my judgment, TfL has shown that unless an injunction is granted, there is at least a substantial risk of significant problems which I have identified above. Ms Demetriou QC submitted that these problems are “mere assertion” and in any event negligible. In particular, she submitted that Mr Mason’s statement that TfL is not equipped to issue 6,000 PCNs per day is based on an entirely unsubstantiated assumption that each of AL’s drivers would breach the TROs twice a day; that, in fact, it is inherently unlikely that AL’s drivers would risk criminal prosecution; that it would be open for TfL to choose not to issue PCNs in respect of all breaches of the TROs in the period pending the determination of the judicial review; and that it is difficult to see what damage this would cause TfL. I accept certain of these criticisms. In particular, I accept that the figure of 6,000 PCNs per day is or at least may be unrealistic – although it should be noted that that estimate ignores the other 60,000 PHV drivers in London and the possibility that at least some of them might decide to follow AL drivers. The truth is that it is impossible to prove one way or another what will or even may happen in practice if an injunction is not granted. Be that as it may, I do not accept the suggestion that it would be realistic for TfL to choose not to issue PCNs in respect of all breaches of the TROs in the period pending the determination of the judicial review nor that the difficulties described by Mr Mason are “negligible”. On the contrary, as I have stated it seems to me that unless an injunction is granted, there is a substantial risk of significant problems even if it is not possible to measure the extent of such problems. Nor, in my judgment, is the risk of these problems eliminated by the suggestion that the Parking and Traffic Appeals Service should, in effect, stay each appeal until the judicial review proceedings have been determined and then treat one appeal as a test case. That may reduce the administrative burden but it would not address the other problems.
88. Third, I recognise that the grant of relief may cause significant damage to the defendants and, as stated by Mr Griffin, the situation is time critical as the London Olympics and peak tourist season approach. However, it is in my view important to recognise that such damage would be the loss of additional profits that would be derived from AL’s drivers being persuaded to drive in bus lanes. However, on the defendants’ case, they are free to choose whether or not to do so. Further, as the defendants accept or at least do not dispute such conduct would be unlawful on the face of the present legislation. In this context, I also bear in mind that it would have been open for the defendants to have sought interim injunctive relief restraining TfL and/or others from enforcing the bus lane legislation against them pending the resolution of their challenge. Alternatively, under CPR Part 25.1(1)(b) they could have sought an interim declaration “reading down” the legislation so that lanes marked for “taxis” should be read in the interim as applying also to PHVs. At the very least, the defendants could have applied earlier for expedition. However, the defendants did not do any of these things. As submitted by Mr Chamberlain, it seems to me that a party challenging legislation who chooses not to seek interim relief of either kind nor even an early expedited hearing should expect to have to comply in the interim with the duties which the legislation, on its face, imposes.
Cross-Undertaking
89. Notwithstanding all these arguments, it seems to me appropriate that as a condition of the grant of injunctive relief, TfL should provide a cross-undertaking that if the court later finds that the order has caused loss to the defendants and/or any other person and decides that the defendants or any other person should be compensated for that loss, TfL will comply with any order that the court may make. Mr Chamberlain submitted that I should not require TfL to give such cross-undertaking and, in that context, he referred me to Lewis, Judicial Remedies in Public Law, 4th Edition, paragraph 8-056 and Kirklees MBC v Wickes Building Supplies [1993] AC 227 where the House of Lords held that it was within the judge’s discretion not to require a cross-undertaking in damages having regard, in particular, to the fact that the claimant was a statutory authority seeking to enforce the law. However, it seems to me that such cross-undertaking is appropriate in the present circumstances. In particular, it is important to note that as formulated, the cross-undertaking does not require TfL to pay any damages merely because they may fail in the judicial review proceedings. On the contrary, the cross-undertaking is more limited ie it simply constitutes an undertaking to the court that TfL will comply with any order that the court may make in the stipulated circumstances. In my view, such cross-undertaking is not unduly onerous.
No exceptional circumstances
90. Ms Demetriou QC in effect submitted that to the extent that the defendants might unless otherwise restrained cause, encourage or assist drivers to breach the existing legislation, it is far from clear that criminal prosecutions will prove inadequate; and that there are no exceptional circumstances which would justify the court granting interim relief in aid of the criminal law. I do not agree. I have already dealt in part with this argument but in this context I would emphasise the following points. First, I accept that the power of the civil courts to grant relief in aid of the criminal law is an exceptional power. As stated by lord Wilberforce in Gouriet [1978] AC 435 at p.498 F-G, it is to be used only in the most exceptional of cases in particular for the reasons stated at p.498 G to p.499 B. Nevertheless, in my judgment, it would be wrong to suggest that such power should only be used where there is proof of repeated deliberate and flagrant breaches of the criminal law: see City of London Corp v Bovis Construction Ltd [1992] 3 ALL ER 697 per O’Connor LJ at p.711 b-e and Bingham LJ at p.715 b-e. Further, consistent with the views expressed by Bingham LJ in this last passage, even if convictions are obtained, the delay before the hearing will or at least may be a relevant consideration in deciding whether the civil courts should grant injunctive relief. For the reasons stated above, it seems to me that there are exceptional circumstances which justify the grant of an injunction.
Status Quo
91. Ms Demetriou QC submitted that an injunction would interfere with the status quo and would prejudge to an unacceptable degree the outcome of the judicial review. I do not agree. In fairness to Ms Demetriou QC, that submission was originally made in the context of the relief originally sought by TfL and which has now been abandoned. In my judgment, the limited injunction now sought does not interfere with the status quo or otherwise prejudge the judicial review.
No tangible purpose
92. Ms Demetriou QC submitted that it is unclear that granting an injunction would serve any tangible purpose because AL drivers have always remained free to choose to ignore the TROs and drive in bus lanes at the risk of a criminal prosecution in which event they would be able to raise as a defence the incompatibility of the TROs with EU law. The relief sought by TFL would not change that position. I do not agree. As stated above, it seems to me that the injunction now sought by TFL serves a most important tangible purpose.
Expedited hearing
93. Ms Demetriou QC submitted that the defendants have applied for an expedited hearing of their claim for judicial review; and that an order for an expedited hearing is the appropriate way of managing this case as it would ensure that no real damage of the type asserted by Mr Mason would occur before the substantive issues in the case are determined. As I indicated at the hearing, it seems to me that the judicial review should be expedited. However, that does not of itself obviate the need for an injunction. On the contrary, for the reasons stated above, it is in my judgment both necessary as well as just and convenient to grant the injunction now sought.
Compelling Defence
94. Ms Demetriou QC submitted that TfL seeks an injunction in aid of the criminal law but here the defendants (and drivers) have a (compelling) defence to any criminal prosecution; namely that the TROs are discriminatory and in breach of EU law. This is an important factor which must be weighed in the balance as the House of Lords recognised in Kirklees. As I have stated above, I agree that the existence of a defence to a criminal prosecution is an important factor to be weighed in the balance which I have done. However, having regard to all the circumstances, the conclusion I have reached is, as I have stated above, that it is both necessary as well as just and convenient to grant the injunction now sought.
Conclusion
95. For all these reasons, it is my conclusion that it is both necessary and just and convenient to grant the injunction sought by TfL in the form sought ie until determination by the Administrative Court of the judicial review proceedings in claim CO10424/2011 or further order, an injunction restraining the defendants from causing, encouraging or assisting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers subject to the cross-undertaking by TfL as set out above. I will also grant the interim declaration as set out above, accept the undertakings proffered by the defendants and make an order that the judicial review proceedings be expedited.

Sunday 15 April 2012

Bug bugs Ltd v TfL

The Hon Mrs Justice Swift DBE :

Introduction

This is an appeal by the appellant, Bugbugs Ltd ("Bugbugs"), against a decision of Master Eyre dated 24 January 2007. Bugbugs had sought to strike out, on the grounds of abuse of process, a claim made under CPR Part 8 by the respondent, Transport for London ("TfL"), for a declaration that a pedicab is a "hackney carriage" for the purposes of section 4 of the Metropolitan Public Carriage Act 1869 ("the 1869 Act"). The Master dismissed Bugbugs' application to strike out TfL's claim. He gave permission to appeal.
I heard argument in this appeal on 25 October 2007. Bugbugs was represented by Mr David Wolfe; TfL was represented by Mr James Pereira.
Background

TfL is the licensing authority for hackney carriages in London. Pursuant to section 7 of the 1869 Act, it is an offence for a vehicle coming within the definition of a "hackney carriage" to ply for trade without a licence.
A pedicab is an adaptation of a rickshaw. It has three wheels like a tricycle. Over the back wheels is a compartment in which passengers sit. A pedicab is propelled by an individual using cycle technique, rather than (as with a rickshaw) running along the ground. Most pedicabs rely on pedal power, although a few are electrically assisted. Pedicabs have become a common sight in London and some other cities within the UK, as well as in other parts of the world.

Currently, pedicabs are not subject to any form of licensing. TfL wishes to introduce a licensing regime for pedicabs in order to give it powers to regulate, inter alia, the suitability of operators and drivers of pedicabs and the safety of their vehicles. In June 2006, it published a consultation document, seeking views on proposals for the licensing of pedicabs. It is in the context of those proposals that it seeks clarification of the legal status of a pedicab.

Bugbugs is the largest operator of pedicabs in the UK. It is a not-for-profit organisation, limited by guarantee and run by a board of trustees. It was founded in 1998 and its aims include the provision of a sustainable emission-free integrated form of passenger transport and the creation of work and training opportunities for people from all backgrounds and nationalities. Bugbugs now has 54 pedicabs and over 300 registered riders. Bugbugs leases its pedicabs on a monthly, weekly or daily basis to self-employed riders. The riders then ply the vehicles for hire. Fares are charged at a set rate per passenger, increasing incrementally according to the distance travelled. Unless arranged in advance, the fare does not cover hire of the whole pedicab – merely a seat therein.

Bugbugs has third party public liability insurance up to £2 million and operates systems, procedures and documentation which are aimed at ensuring the safety of staff, riders, passengers and other road users. It keeps riders' and pedicabs' activity logs and comprehensive maintenance records and arranges for regular servicing of its pedicabs. It liaises with relevant organisations, such as the police and local authorities. The information before me suggests that it is a highly responsible organisation.

There are, however, others within the industry who are not so responsible.
For many years, Bugbugs has been pressing for a system of regulation for pedicabs and their operators. It favours a new licensing regime which has been "tailor made" to cover the special characteristics and manner of operation of pedicabs. Such a regime can, it believes, be achieved only by means of primary legislation. Bugbugs opposes any attempt to bring pedicabs within the existing regime for regulating "hackney carriages". Its contention is that to treat pedicabs in effect as if they were black taxicabs would be unworkable in that it would impose conditions on pedicab operators that would be impossible to meet. It is concerned that it would result in pedicab operators going out of business. Because of its opposition to the inclusion of pedicabs within the "hackney carriage" licensing regime, Bugbugs has been anxious to avoid pedicabs from being categorised as "hackney carriages".

TfL came into existence in July 2000. Prior to that date, the body responsible for the licensing of hackney carriages and related matters was the Metropolitan Police Commission (MPC), through its Public Carriage Office (PCO). In July 2000, the PCO became an administrative department within TfL. Mr Roy Ellis has been Head of the PCO throughout the period of time relevant to this case. When it was part of the MPC, the PCO had an enforcement section staffed by police officers. This enforcement section would pass cases to the Crown Prosecution Service (CPS) when appropriate. The CPS would decide whether to prosecute and, if a prosecution was instituted, the CPS would conduct the case.

The relevant statutory provisions

Section 4 of the 1869 Act (as amended) defines a "hackney carriage" as "any carriage for the conveyance of passengers which plies for hire… and is neither a stage carriage nor a tramcar". Pedicabs are clearly not "tramcars". Thus, in order to take them outside the definition of "hackney carriages", it is necessary to establish that they are "stage carriages".

Section 4 defines a "stage carriage" as "any carriage for the conveyance of passengers which plies for hire in any public street, road or place… and in which the passengers or any of them are charged to pay separate and distinct or at the rate of separate and distinct fares for their respective places or seats therein".

Paragraph 16 of Schedule 1 of the Transport Act 1985 ("the 1985 Act") (which was given effect by Section 1 of that Act) provides that, "in any enactment or instrument passed or made before the commencement of section 1 of this Act", "any reference to a stage carriage shall be construed as a reference to a public service vehicle being used in the provision of a local service". By section 137(1)(2) of the 1985 Act, a "public service vehicle" is defined for the purposes of that Act as having the same meaning as in the Public Passenger Vehicles Act 1981 ("the 1981 Act"). Section 1(1) of the 1981 Act provides the definition of a "public service vehicle". One requirement of the definition is that a "public service vehicle" must be "a motor vehicle". A "motor vehicle" is defined by section 82(1) of the 1981 Act as "a mechanically propelled vehicle intended or adapted for use on roads". It is not disputed that a pedicab (even if electrically assisted) does not come within the definition of a "public service vehicle" and is not therefore a "stage carriage" within the meaning of the 1985 Act.

The question that arises is whether the effect of paragraph 16 of Schedule 1 to the 1985 Act is to import the construction of a "stage carriage" contained in that paragraph into the definition at section 4 of the 1869 Act. If that were its effect, then, since a pedicab would not fall within the meaning of a "stage carriage" thus defined, it must be a "hackney carriage".
History of events

I shall now set out a brief history of the relevant events leading to this appeal.
The Lane case

In July 1998, the Court of Appeal heard an appeal in the first case involving pedicabs (referred to in that case as "trishaws"): R v Cambridge City Council ex parte Lane [1999] RTR 182. Mr Lane applied to the Cambridge City Council for licences to ply pedicabs for hire on the streets of Cambridge. He and the Council differed over the terms of the licences as a result of which he applied for judicial review of the Council's decisions. A judge of the Administrative Court ruled that pedicabs came within the definition of "hackney carriages" contained in the Town Police Clauses Act, 1847, a statute which applies in Cambridge and other parts of the country, but not in London. The definition of a "hackney carriage" contained within the 1847 Act is significantly different from that which appears in section 4 of the 1869 Act.
The Begg case

The introduction of pedicabs onto the streets of London and other cities caused concern to operators and drivers of black taxicabs, which fall within the definition of "hackney carriages" and are, therefore, required to be licensed. They viewed unlicensed pedicabs as unfair competition. Pedicabs also caused concern to the police and local authorities, who had to deal with traffic and parking problems associated with their use. The PCO was soon under pressure to clarify the legal status of pedicabs and to ascertain whether they could properly be classed as "hackney carriages" and brought within the existing licensing regime.

In 1999, the PCO decided to initiate a "test case" before the Magistrates' Court. It provided information to the CPS about Mr Begg, the rider of a pedicab owned by Bugbugs, who had been plying for hire without a licence. Mr Begg was charged with driving and plying for hire an unlicensed hackney carriage, contrary to section 7 of the 1869 Act. Bugbugs, which was at that time the only operator of pedicabs in London, conducted the defence on Mr Begg's behalf.

On 6 December 1999, the Stipendiary Magistrate dismissed the case against Mr Begg. He found that a pedicab (referred to in that case as a "trishaw") was not a "hackney carriage". The prosecution had referred him to paragraph 16 of Schedule 1 to the 1985 Act. They argued that the effect of paragraph 16 was to amend the definition of "stage carriage" contained in the 1869 Act, with the result that a pedicab was outside the definition of a "stage carriage" and must therefore be a "hackney carriage". The Stipendiary Magistrate rejected that argument. In his decision, he said:
"… whilst the argument is an attractive one, I note that the purpose of the Act (i.e. the 1985 Act) was to take account of the deregulation of road passenger transport. I can find no reference to Section 4 of the Metropolitan Public Carriage Act to the 1869 Act having been amended by the 1981 Act and conclude that paragraph 16 of Schedule 1 to the 1985 Act was intended to deal with deregulation of bus operations and was not intended at a stroke to convert a stage carriage within the meaning of the 1869 Act into a hackney carriage …
I come to the conclusion that a 3 wheel pedicab propelled by human power where separate and distinct fares are paid by passengers can fall within the term "stage carriage" as defined in Section 4…. ".
It should be noted that, in that passage, the Stipendiary Magistrate does not deal with the opening words of paragraph 16, namely the reference to the application of the definition "in any enactment or instrument passed or made before the commencement of section 1 of this Act".

After the Begg case

Mr Roy Ellis, Head of the PCO, had had no personal involvement in the Begg case. He received a report dated 7 January 2000 from PC Eamon Cadden, the PCO police officer who had been involved in that case, informing him of the outcome. The report informed him that the CPS did not intend to appeal. PC Cadden advised that the "loophole" in the law being used by pedicab operators should be addressed urgently by bringing pedicabs within the provisions of the new Private Hire Vehicles (London) Act 1998. He pointed out that this would require an amendment to existing legislation.

Subsequently, both the MPC and the London Borough of Westminster ("Westminster"), which had its own concerns about the traffic and parking problems being caused by pedicabs, obtained Advices from counsel on the legal status of pedicabs. (It seems that the Advice obtained by Westminster must at some time have become available to the PCO.) Neither counsel had a copy of the full decision of the Stipendiary Magistrate in Begg. Instead, both had a copy of PC Cadden's report. Both remarked that it was unclear from that report what the basis of the Stipendiary Magistrate's decision had been. Neither referred in their Advice to the possible effect of paragraph 16 of the Schedule 1 to the 1985 Act. Mr Muir, who advised the MPC in February 2000, concluded that pedicabs were "stage carriages" and were therefore excluded from the definition of "hackney carriages" and fell outside the current licensing regime. He advised that there was a lacuna in the law which could only be remedied by legislation. Mr Spencer, who advised Westminster in September and November 2000, took the view that it was arguable that a pedicab could fall within the definition of a "hackney carriage", although he considered it more likely that it would be found by a court to be a "stage carriage". He advocated the promotion of new, or the amendment of existing, legislation in order to bring pedicabs within a licensing regime.

It seems that, between 2000 and 2002, there was a general acceptance by the PCO that pedicabs fell outside the definition of "hackney carriages" in the 1869 Act. In July 2002, however, as a result of Mayoral Questions relating to pedicabs, the question of the legal status of pedicabs was raised again. As a result, Mr Ellis asked Mr David Farmiloe, a Manager in TfL's legal department, to provide legal advice on the issue. Mr Farmiloe provided a review of the previous advice and information available to the PCO. That review, dated 30 September 2002, contained no mention of paragraph 16 of Schedule 1 to the 1985 Act or the possibility that it might have the effect of taking pedicabs outside the definition of "stage carriages" and into that of "hackney carriages". Mr Farmiloe advised Mr Ellis that pedicabs fell outside the regimes for licensing "hackney carriages", "private hire" or "public service" vehicles. He suggested that provision for the licensing of pedicabs could be achieved by amending legislation relating to private hire vehicles, by repealing or amending section 4 of the 1869 Act and bringing them within the definition of "hackney carriages" or by promoting new legislation specifically designed to deal with the licensing of pedicabs.

The Oddy Case

In October 2002, Mr Farmiloe was informed by the Tower Bridge Magistrates' Court that there was a private prosecution pending relating to the legal status of pedicabs. This was the first that TfL (or the PCO) knew about the prosecution. Mr Farmiloe told the Magistrates' Court about the previous case of Begg and, subsequently, the Court managed to locate the Stipendiary Magistrate's decision in that case. They sent a copy to Mr Farmiloe, who filed it. It is not clear whether Mr Farmiloe read it at that stage, although it seems probable that he would have done. Mr Ellis' evidence is that he himself did not see the judgment then.

The prosecution was brought by the Licensed Taxi Drivers' Association (LTDA), acting through an individual, Mr Robert Oddy. The relevant charge, which was brought against Bugbugs and two of its riders, was that Bugbugs owned, and the riders drove, a pedicab which was plying for hire, notwithstanding that it was a hackney carriage and had no licence, contrary to section 7 of the 1869 Act. The charge against the two riders under this section was, in the event, not proceeded with.

On 11 February 2003, Bugbugs sent an email to TfL, seeking confirmation (for the purposes of the Oddy case) that "regulation (of pedicabs) is on line for summer 2004". Mr Gary McGowan responded on behalf of TfL, saying, "I can only confirm that the process is beginning this financial year, to pursue primary legislation for the regulation of bicycle rickshaws, electric assisted and electric powered rickshaws… - all of which cannot be classed as taxis, private hire vehicles or buses at this time".

On 13 February 2003, the case of Oddy came before a District Judge (previously a Stipendiary Magistrate). She found that the definition of a "stage carriage" under section 4 of the 1869 Act (see paragraph 11 of this judgment) meant that the method of fare charging was determinative of the status of the vehicle. She concluded that, since the method of charging was per passenger (not for the hire of the pedicab as a whole), a pedicab was a "stage carriage" for the purposes of section 4, not a "hackney carriage". Consequently, the charge against Bugbugs was dismissed. The District Judge made no reference to the effect of paragraph 16 of Schedule 1 to the 1985 Act, nor does it appear that she was referred thereto.

A considerable amount of attention in the Oddy case was directed at resolving the question of whether the decision in the case of Lane was binding on the District Judge. She decided that, since the terms of the 1847 Act were materially different from those of the 1869 Act , she was not so bound.

After Bugbugs' acquittal in Oddy, Mr McGowan wrote to one of its employees, welcoming the news and observing that "it certainly helps justify their (the PCO's) need for new legislation".

On 4 April 2003, there was a meeting of pedicab operators and other parties supportive of the pedicab industry, called by the PCO. At the meeting, Mr Ellis gave a presentation and answered questions from those present. He told them that, if a system of licensing were to be introduced, there was no set timescale and no staff had been assigned to the matter as yet. There was unanimous agreement by those at the meeting that there should be some form of regulation of pedicabs.

On 4 July 2003, there was a further meeting. At its conclusion, Mr Ellis told those present that the PCO's priority at that time was to complete the process of private hire licensing. He said that no timescale could be decided with regard to the licensing of pedicabs. However, he warned them that, if primary legislation was necessary, it could be a lengthy process.
The appeal in Oddy

The LTDA appealed against the decision of the District Judge by way of case stated. The appeal was heard on 12 November 2003 by Mr Justice Pitchford, sitting in the Administrative Court. The LTDA submitted that the District Judge had been wrong to distinguish the case of Lane. It argued that it was illogical and contrary to principle for identical pedicabs to have a different legal status depending on whether they were operating in London or elsewhere in the UK. It was submitted that the District Judge in Oddy should have found that pedicabs were "hackney carriages" under the 1869 Act. Meanwhile, Bugbugs relied on the decision in Begg. It submitted that the legal distinction between a "hackney carriage" and a "stage carriage" arose principally from the different manner in which passengers were charged. It contended that, since passengers in pedicabs were charged "separate and distinct fares for their respective places or seats" then, under the provisions of section 4 of the 1869 Act, a pedicab must be a "stage carriage", not a "hackney carriage".
Pitchford J dismissed the LTDA's appeal and affirmed the District Judge's decision. The case is reported at [2004] LLR 124. The list of statutory provisions considered, at page 125, does not include any reference to paragraph 16 of Schedule 1 to the 1985 Act. Nor is there any reference to paragraph 16 in the judgment of Pitchford J. At paragraph 31 of that judgment, he observed:

"… the definitions of hackney carriage and stage carriage have been left entirely untouched, save that in 1992 the Transport and Works Act added the exclusion of tramcar from the definition of hackney carriage. Interestingly, the word tramcar was not, itself, defined."

He went on :
"[32] I consider section 4 of the 1869 Act to be a deeming provision which caught and still catches all carriages falling within its terms. It seems to me that since it was an agreed fact that pedicab passengers, if there was more than one, were charged a separate fare, then, strange as it may appear, pedicabs fall within the deeming provision. Mr Francis (counsel for Mr Oddy) suggests that the fare scheme was a sham to overcome the legislation. It may be that the fares scheme was deliberately adopted to avoid the licensing provision for hackney carriages but that fact does not in my view render the definition of a stage carriage inapplicable to this vehicle.

[33] While the draughtsman may not have contemplated a vehicle such as this, nor operating procedures such as those of the respondent, I conclude that the district judge was right to find as she did. It seems to me that R v Cambridge City Council ex parte Lane … has no application to ss 4 and 7 of the 1869 Act and the district judge was right to make that finding…
[34] I recognise that the consequences of this decision is that the pedicab plying for hire in London is subject to no licensing regime. That may be regarded as an unwelcome consequence. The first respondent (Bugbugs) has submitted to the London Public Carriage Office a draft strategy for pedicab regulation and it is anticipated that a scheme will be prepared within the next few months. I comment only that unless my decision is wrong in law, primary legislation will probably be required."

It should be noted that TfL dispute the Judge's finding that the definitions of "hackney carriages" and "stage carriages" had been left "entirely untouched" by subsequent legislation. It argues that the effect of paragraph 16 of Schedule 1 to the 1985 Act was to make important amendments to those definitions.

On 18 November 2003, the solicitor acting for the LTDA contacted TfL and asked whether it wanted to join in an appeal to the House of Lords against the decision of Pitchford J. On 4 December, he forwarded to TfL a copy of the questions of law that the LTDA proposed to submit to the Judge for certification. There was no mention of paragraph 16 of Schedule 1 to the 1985 Act in those questions. TfL's legal advisers and the PCO did not consider that an appeal based on the proposed questions was likely to succeed.

Therefore, Mr Farmiloe wrote to the LTDA's solicitor, informing him that TfL did not wish to pursue the appeal.
On 10 December 2003, Pitchford J certified a point of law of general public importance, namely: "Whether the Respondents' pedicabs, operated in London as found by the District Judge, are "stage carriages" within the meaning of section 4 of the Metropolitan Public Carriage Act 1869, and thus excluded from the licensing requirements for "hackney carriages" provided by section 6 and the penalties for unlicensed use provided by section 7 of the same Act". He refused Mr Oddy permission to present a petition of appeal to the House of Lords and the proposed appeal went no further. TfL were informed of this decision.

From 2003 to 2006

Meanwhile, in November 2003, the PCO had commissioned a consultancy firm, Sinclair Knight Mirtz ("SKM"), to prepare a "scoping report" on current and potential pedicab legislation. A draft report became available in early 2004 and, in August 2004, Mr Terry Sugrue (TfL's primary legal adviser on matters relating to the PCO in connection with taxi and private hire vehicle legislation, including pedicabs) received and read the final report. The report's authors reviewed the position as to the legal status of pedicabs and emphasised the fact that there was general agreement that regulation was required. They suggested that regulations for pedicab licensing might be included in a Bill to be sponsored jointly by TfL and Westminster (who were anxious to be in a position to enforce traffic and parking regulations as against pedicabs). Having read the report, Mr Sugrue carried out some research into the term "stage carriage". He quickly found a reference to paragraph 16 of Schedule 1 to the 1985 Act. He came to the conclusion that its opening words ("in any enactment or instrument passed or made before the commencement of section 1 of this Act") had the effect of amending the definition of "stage carriage" contained in section 4 of the 1869 Act, as a result of which pedicabs should be defined as "hackney carriages". This led him to believe that Oddy may have been wrongly decided. He says that, at this stage, he had not seen the decision of the Stipendiary Magistrate in Begg, nor was he aware that there was a copy in TfL's possession. He had seen PC Cadden's report (which referred to section 1 of the 1985 Act, but not paragraph 16 of Schedule 1) but had not understood from it that the Stipendiary Magistrate had considered the effect of paragraph 16. He communicated to Mr Ellis his views about the legal position. It is clear that, at that stage, he believed that primary legislation would still be required in order to incorporate pedicabs into the existing hackney carriage licensing regime.
Accordingly, TfL began to explore the possibility of securing legislation providing for the licensing of pedicabs. Various routes were considered, in particular a Bill sponsored by the Department for Transport ("DfT"), a joint Bill promoted by the TfL and another London local authority or authorities, and a Bill promoted by TfL alone. Each option was found to have its problems. Mr Sugrue and Mr Ellis also decided to investigate the possibility of incorporating pedicabs into the existing licensing regime for "hackney carriages".

In mid-October 2004, TfL instructed leading counsel to advise on the legal status of pedicabs. Later that month, Mr Charles George QC advised that, in the light of paragraph 16 of Schedule 1 to the 1985 Act, pedicabs should not be considered as excluded from the definition of "hackney carriage" in section 4 of the 1869 Act. He advised that Pitchford J did not appear to have considered the point in the case of Oddy. Mr George advised that what was required was a further prosecution which could be taken to appeal, or a declaratory judgment of the High Court.

Meanwhile, discussions were in train about a Bill, to be promoted jointly by TfL, Westminster and the Association of London Government Transport and Environment Committee, making provision for the enforcement of traffic and parking legislation against pedicabs. The draft Bill, when published, included a basic registration scheme for pedicabs to enable them to be identified for the purpose of traffic enforcement. It did not, however, contain provision for a full licensing regime. TfL had not had much, if any, input into the draft Bill, which defined pedicabs as "motor vehicles" for the purposes of enforcement and insurance issues.

In November 2004, Mr Chris Smallwood, Trustee of Bugbugs and representative of the London Pedicab Operators Association ("LPOA") contacted TfL, complaining, inter alia, about lack of consultation about the provisions of the draft Bill. TfL responded by explaining that the draft Bill dealt only with the enforcement of traffic and parking regulations as against pedicabs, and that TfL would be dealing separately with the licensing of pedicabs. According to TfL, Mr Smallwood was told at that stage that TfL had come to the conclusion that pedicabs should probably be categorised as "hackney carriages". Subsequently, TfL advised its co-promoters of the joint Bill that pedicabs should not be defined as "motor vehicles" and that some of the other, more controversial, aspects of the Bill should be dropped.

On 26 November 2004, the (amended) joint Bill was deposited. It was widely criticised. On 21 June 2005, the Bill received its Second Reading and was then able to progress to the Opposed Bills Committee stage. As I have said, the Bill dealt only with issues of the enforcement of traffic and parking regulations as against pedicabs. By the end of 2004, TfL had decided to further its plans for the licensing of pedicabs by seeking a declaratory judgment from the High Court and, having obtained such a judgment, by amending the licensing regime contained with the London Cab Order 1934, in order to create a regime suitable for pedicabs. It was unwilling to state its intentions publicly for fear that the LDTA would immediately initiate another private prosecution, based on the argument it intended to deploy. TfL did, however, inform certain bodies (e.g. Westminster and the DfT) of its intentions. It did not inform Bugbugs and it appears that, throughout this period, Bugbugs remained under the impression that TfL intended to achieve the licensing of pedicabs by means of primary legislation. At the end of October 2005, the Government informed TfL that they did not support the pedicab provisions contained in the Bill on the grounds that they did not provide for a licensing regime.

On 1 November 2005, TfL appeared by leading counsel, Mr Patrick Clarkson QC, at a hearing by the Opposed Bills Committee ("the Parliamentary Committee"). I shall refer to that hearing in greater detail later in this judgment. Suffice it to say for now that TfL did not inform the Parliamentary Committee about the way it intended to achieve its objective of a licensing regime for pedicabs.

Following the hearing, the Parliamentary Committee informed TfL that it intended to drop the pedicab provisions from the Bill. After that, efforts were made by various parties, including TfL, to achieve inclusion of the provisions in an amendment to an existing Road Safety Bill. These efforts ultimately proved fruitless.

On 21 December 2005, at a meeting between TfL and Mr Smallwood, TfL officials informed him of their intention to seek a declaratory judgment that, contrary to the decision in Oddy, pedicabs were "hackney carriages" within section 4 of the 1869 Act. Shortly afterwards, Mr Ellis informed Mr Smallwood that TfL was intending to make the application for a declaratory judgment at the same time as publishing a consultation paper on the content of a licensing regime for pedicabs.

In an email to Mr Sugrue, dated 26 April 2006, Mr Smallwood asked him to confirm that TfL's counsel had considered the case of Begg. In a subsequent telephone call, Mr Smallwood again mentioned the case of Begg. Mr Sugrue indicated that he had read the internal PCO report (i.e. PC Cadden's report) on Begg but not a copy of the full decision. It seems that he did not do so at this time. In June 2006, TfL produced its consultation document on the licensing of pedicabs. It made clear in that document that it would be seeking a ruling from the Court on the question as to whether pedicabs are "hackney carriages".

On 3 July 2006, Mr Sugrue became aware for the first time that Mr Farmiloe had received a copy of a decision in the Begg case in October 2002. Prior to that, the only information about Begg about which Mr Sugrue had been aware was that gleaned from PC Cadden's report. The decision in Begg made clear (see paragraph 18 of this judgment), as PC Cadden's report had not, that the Stipendiary Magistrate had considered the effect of paragraph 16 of Schedule 1 to the 1985 Act. Nevertheless, TfL decided to proceed with its application for a declaratory judgment, as previously planned.

On 24 July 2006, TfL issued its application. On 15 September 2006, Bugbugs applied to strike out the application. Prior to the hearing before the Master, TfL agreed to meet Bugbugs' costs of opposing the application, up to a maximum of £15,000. (There is, however, some dispute between the parties as to whether this agreement extends to the costs of the application to strike out and/or of this appeal.)
The hearing before the Master

The matter first came before the Master on 4 October 2006. At that hearing, TfL relied on a witness statement from Mr Ellis dated 20 July 2006 (made in support of its application for a declaratory judgment), together with a further witness statement from him dated 2 October 2006 (relating to the strike out application). Bugbugs' evidence consisted of witness statements from Ms Susan Ring, its solicitor, and from Mr Smallwood, both dated 24 August 2006. The Master heard evidence on the strike out application. There was considerable dispute about the history of events and the Master adjourned the hearing part heard to enable TfL to serve further evidence, explaining why its position on the legal status of pedicabs had changed.

Before the further hearing, TfL served a witness statement from Mr Sugrue, together with a detailed chronology of events and a large amount of documentation (including Advices from counsel, consultants' reports, etc.) relating to the history of its developing views on the appropriate way to approach the licensing of pedicabs. Bugbugs filed a further witness statement from Mr Smallwood in response.

In his Reasons for Ruling given on 24 January 2007, the Master rehearsed the background and the arguments raised by both parties, then ruled as follows:
"In particular, it must be at least arguable that:
a) The complainant in Begg could not then be identified with the Claimant, since the statutory provision making it merely a department of the Claimant had not yet come into effect.
b) There is nothing about the Claimant's conduct in relation to Oddy to make it obvious that for it to bring this action subsequently would be abusive.
c) A public body whose responsibilities include licensing, ought not to have its action characterised as an abuse merely because it seeks in it to have resolved a point of law that had not previously occurred to it".
Bugbugs' case

Bugbugs' case is that TfL has been guilty of abuse of process in three different respects, namely:
a) By seeking to re-open matters that have been decided by the courts and by failing to pursue the point it now seeks to pursue by way of appeal in the cases of Begg and/or Oddy:
b) By concealing from Bugbugs, the Parliamentary Committee and others its changed stance on the legal status of pedicabs and the way in which it intended to proceed to achieve a licensing regime for pedicabs; and
c) By its conduct in these proceedings.
I shall deal with these three contentions separately.

The re-opening of matters already decided by the courts

The Begg case

Before the Master, and on the appeal before me, it was argued on behalf of Bugbugs that the issue of whether or not a pedicab was a "hackney carriage" within the meaning of section 4 of the 1869 Act had been decided by the case of Begg in 1999. Paragraph 5 of the Stipendiary Magistrate's decision specifically rejected the prosecution's arguments about the effect of paragraph 16 of Schedule 1 to the 1985 Act. Mr Wolfe contended that the parties to the Begg case were, in reality, the same as in the present proceedings. He said that Begg had been a "friendly prosecution" by the PCO of Bugbugs in order to clarify the law. He submitted that the fact that the prosecution was conducted by the CPS on the PCO's behalf and was directed against Mr Begg (rather than against Bugbugs) was immaterial. The "informant" for the purposes of the prosecution had been the PCO. Bugbugs had conducted the defence and Mr Smallwood and others from Bugbugs had given evidence on Mr Begg's behalf. Mr Wolfe pointed to documents [2/358-9 and 2/322] which, he said, made it clear that the PCO had recognised that Bugbugs was the "real" defendant in the case of Begg. Thus, he said, the reality of the position was that Begg had been a prosecution by the PCO of Bugbugs.
Mr Wolfe argued that it would have been open to the PCO to appeal the decision of the Stipendiary Magistrate in Begg. He did not accept that the decision whether to appeal the decision in Begg had been one for the CPS alone. He said that, even if it were correct that the CPS had made the ultimate decision whether or not to appeal, it would plainly have been open to the PCO, having regard to the fact that an important matter of principle was involved, to make representations to the CPS that an appeal should be pursued. There was, he said, no evidence that this was done.

Mr Wolfe argued that the fact that TfL had not come into existence until after the Begg case did not mean that it could not be identified with the PCO, which had been the informant in that case. He pointed out that the PCO had been transferred from the MPC to TfL at the time the latter was created. TfL had succeeded to its legal functions and responsibilities. Its Head, Mr Ellis, was in post both before and after the transfer. He submitted that it was artificial to suggest that acts of the PCO when it was a department of the MPC could not be identified with the acts of the PCO after it became a department of TfL.

As to the PCO's knowledge of the basis of the decision in Begg, Mr Wolfe referred to the passage in PC Cadden's report where he stated:
"The Prosecution argued that under Section 1 of the Transport Act 1985, Stage Carriages become PSVs – local service under PSV Act 1981. The defence argued that the definition only applied to mechanically propelled vehicles, i.e. with an engine, not pedicabs."

He submitted that these words plainly referred to the argument based on paragraph 16 of Schedule 1 to the 1985 Act that had been raised before the Stipendiary Magistrate.
The Oddy case

Mr Wolfe pointed out that that the District Judge in Oddy had confirmed the correctness of the decision in Begg that a pedicab did not fall within the definition of a "hackney carriage". He said that the PCO (which by this time had been transferred to TfL) was well aware of the result of the hearing before the District Judge, yet chose not to become involved in the appeals. He said that the PCO was aware of the impending appeal before Pitchford J and could have applied to have become a party to that appeal. It chose not to do so.

Mr Wolfe pointed to the reference in Begg contained within the Skeleton Arguments submitted by the parties in advance of the appeal before Pitchford J, and to the fact that a copy of the Stipendiary Magistrate's decision in Begg was annexed to Bugbugs' Skeleton Argument on the appeal and would have been read by the judge. He accepted that the LTDA had not relied on any argument based on paragraph 16 of Schedule 1 to the 1985 Act before the Judge. He suggested that this was probably because counsel had recognised there was no merit in such an argument.

Mr Wolfe pointed out that the District Judge had penalised the prosecution in costs on the grounds that it was litigating a matter that had been previously decided by the Court. She had ordered the LTDA to pay the defence costs, giving as her reasons:
"8.6 No challenge to this decision (Begg) was mounted in any Higher Court by the Crown Prosecution Service. No attempt was made by Mr Oddy or the Licensed Taxi Drivers' Association to take over the Prosecution or otherwise seek the appropriate remedy so as to challenge Mr Pratt's findings of law.
8.7 This failure to do so and the decision of the Appellant to pursue in the main identical issues based on identical facts through the Magistrates' Court was in effect a rehearing. I felt that costs should therefore be paid by the Appellant (Mr Oddy) as opposed to Central Funds."

Mr Wolfe pointed out that Pitchford J had upheld the District Judge's cost order, stating that the LTDA had not "come near to demonstrating an error of law or perversity".
Mr Wolfe submitted that, in declining to join in the proposed appeal to the House of Lords, TfL had failed to avail itself of another opportunity to clarify the legal position, if that were necessary. He argued that TfL should not be permitted to re-open a question that had been decided by three different courts and which it had chosen at the time not to pursue further. He submitted that there was no merit in TfL's argument based on the interpretation of paragraph 16 of Schedule 1 to the 1985 Act and its effect on the definitions within section 4 of the 1869 Act. Nor, he said, was it a novel argument since it had been deployed in Begg. Even it were, however, the relevant issue had already been decided by the courts and TfL should not be permitted to re-open the question merely because it now had a "new" argument.

The concealment by TfL of its changed stance on the legal status of pedicabs and its intentions with regard to the licensing thereof

Mr Wolfe said, following the decision in Begg, the PCO and pedicab operators had proceeded on the basis that pedicabs were not "hackney carriages" and were not covered by the existing licensing regime. Bugbugs and others had built up their businesses, believing that to be the case. Bugbugs and the LPOA had been supportive of the introduction of a new regime for licensing pedicabs and had sought to work with the PCO to facilitate that. Mr Wolfe said that, as at the middle of 2004, there was a general consensus on the part of all interested parties (except the LTDA) that the way forward was to proceed by introducing new legislation which would establish a system for the regulation of pedicabs. It was recognised that, although the drafting and processing of new legislation would be complex and time-consuming, it would produce the best result; in particular, it would enable the regulatory system to be tailored to the specific requirements of pedicab operations. He said that this view was reflected in the final version of the SKM report, published in August 2004.

Mr Wolfe said that the only reason that matters had not proceeded in that way was TfL's change of stance (initiated by the research undertaken by Mr Sugrue) on the probable legal status of pedicabs. TfL did not disclose to Bugbugs that its stance had changed, although it is now clear that it had informed others of its position. He contended that TfL had deliberately concealed its change of stance from the Parliamentary Committee at its hearing on 1 November 2005. The Bill which TfL was jointly promoting contained, inter alia, a definition of 'pedicabs'. The Chairman of the Committee asked whether the proposed definition would alter the existing definition of pedicabs as "stage carriages". Mr Clarkson, representing TfL, replied:
"It makes absolutely no difference, sir. The picture is, as the law currently stands, that bicycles, rickshaws, pedicabs are not Hackney Carriages. So, howsoever defined, howsoever a pedicab is defined the law as it currently stands is that it is not a Hackney Carriage. Full stop."
Mr Wolfe pointed out that, less than three weeks after the hearing before the Parliamentary Committee, TfL had told Mr Smallwood of its proposal to seek a declaratory judgment that a pedicab was a "hackney carriage". He said that it was clear that TfL had sought to conceal from the Parliamentary Committee its intentions with regard to the licensing of pedicabs. Mr Wolfe submitted that, had TfL disclosed – as, he said, it should have done – its view that pedicabs were in law "hackney carriages", then consideration could have been given by the Parliamentary Committee as to what, if anything, could be done to resolve the position.
Mr Wolfe said that Bugbugs had been participating in discussions with TfL and had been expending its own resources in trying to facilitate the introduction of a proper system of regulation. It had thought that there was agreement that a licensing system specially designed for pedicabs was the only viable way forward. He argued that there would be considerable difficulties associated with attempting to "shoehorn" pedicabs into the existing licensing regime. Those difficulties would, he suggested, include a requirement that pedicabs should have motor vehicle insurance which insurers could not offer. The fare structure would be inappropriate. The regulations would apply only in London and would not be countrywide. The length of the licensing period would be inappropriate for the pedicab industry. Other problems would also be encountered and would make such a regime unworkable.

TfL's conduct in these proceedings

Mr Wolfe was also critical of TfL's conduct of these proceedings. He suggested that its witness, Mr Ellis, had not been frank about TfL's knowledge of the issues in the Begg case or the Oddy case. In addition, TfL was deliberately trying to distance itself from the previous activities of the PCO. Mr Ellis, he said, made no mention at all of the Begg case in his first witness statement, despite the fact that the Stipendiary Magistrate in that case had considered and rejected the argument which TfL was now seeking to mount.
Mr Wolfe referred in particular to a passage at paragraph 12 of Mr Ellis' first witness statement in which he said:

"Transport for London was made aware of the case (i.e. the Oddy case) after the High Court's judgment was delivered, but at that time it was not focussing its work on pedicabs and had no immediate reason to believe that the case was wrongly decided."
Mr Wolfe said that the documents now available made clear that TfL had in fact been aware of the Oddy case even before the Magistrates' Court hearing in February 2003. Moreover, he said that Mr Ellis' observations at the meeting on 4 July 2003 (see paragraph 30 of this judgment) made clear that TfL was focusing its attention on pedicab licensing at that time. He took issue with Mr Ellis' contention (at paragraph 6 of his second witness statement) that it was not until 2004/05 that the issue of the regulation of pedicabs was "seriously addressed". He argued that it was clear from the history that TfL had been involved in a detailed debate about regulation well before the High Court's decision in Oddy in December 2003. He said that the evidence contained in the chronology appended to Mr Sugrue's witness statement provided material relating to TfL's activities, and to information and advice received by them, that had not previously been before the Court. That material would never have been available to the Court if the Master had not adjourned to give TfL the opportunity to produce further evidence in support of its case.
The Master's decision

Mr Wolfe criticised the Master's judgment in a number of respects.
He submitted that, at paragraph 5 of his judgment, the Master appeared to have pre-judged the issue that TfL was seeking to raise. In addition, at paragraph 10(2)(a) of his judgment, the Master stated that it appeared that the Stipendiary Magistrate in Begg had not had his attention drawn to what the Master described as "the opening words of 5". Mr Wolfe interpreted this as meaning that the Master had concluded that the Stipendiary Magistrate had not been referred to paragraph 16 of Schedule 1 to the 1985 Act. He submitted that this was plainly wrong.

Mr Wolfe also criticised the Master's finding that the complainant in Begg could not be identified with TfL since, at that time, the statutory provision making the PCO a department of TfL had not yet come into effect. He argued that, since TfL is the statutory successor to the MPC and has assumed all the MPC's relevant powers and functions, the activities of the PCO before and after its transfer to the TfL cannot be divided. He submitted that the Master had misunderstood the nature and effect of the transfer of statutory responsibility from the MPC to TfL.

Further criticism was directed at the Master's finding at paragraph 12(3)(c) to the effect that a public body should not have its action characterised as an abuse merely because it seeks to have resolved a point of law that had not previously occurred to it. Mr Wolfe submitted that the Master's finding amounted to a ruling of law which had not been the subject of argument, for which there was no authority and which was unjustifiable.

Mr Wolfe argued that the finding amounted to saying that a lower threshold for a public authority was applicable than for a private individual. He said that, on the contrary, a higher threshold should apply. He referred to the case of Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1768 and the judgment of Laws LJ at page 1363, paragraphs 67 and 68, where he emphasised the necessity for public bodies to deal straightforwardly and consistently with the public. Mr Wolfe submitted that, in acting as it had done after its change of stance, TfL had failed to do that.
The law

Mr Wolfe referred me to the case of Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1. Mr Johnson, a businessman, conducted his affairs through a number of companies, including W Ltd, in which he held all but two of the issued shares. He brought proceedings against the defendants, a firm of solicitors, in connection with their allegedly negligent conduct in connection with the exercise of an option to purchase by W Ltd. The solicitors representing W Ltd informed the solicitors acting for the defendants that Mr Johnson also had a personal claim arising from the same matters and that he would pursue that claim in due course. Subsequently, there were discussions between solicitors about a possible overall settlement of the claims of W Ltd and Mr Johnson. Eventually, W Ltd's claim was settled. Later Mr Johnson issued a writ against the defendants in respect of his own claim. The defendants applied to strike out the action as an abuse of process. The judge declined to strike out the action. The Court of Appeal reversed the judge's decision. The House of Lords allowed Mr Johnson's appeal. In an authoritative exposition of the law relating to abuse of process at page 31A-F, Lord Bingham of Cornhill said:
"The underlying public interest is … that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances."
Mr Wolfe submitted that the Master did not apply the test in Gore Wood. He said that this was not simply a case where a party was seeking to raise matters which it could have raised before and which had already been decided by the courts. He said that TfL had actively misled everyone, including the Parliamentary Committee, about its intentions. It had not been frank with the Court. Had the Master looked at the whole of the circumstances, he should have found that there was clear abuse.

Mr Wolfe submitted that the proper way forward was for TfL to pursue primary legislation for the purpose of licensing and regulating pedicabs. He said that, at present, TfL regarded itself as "shackled" by its change of stance on the legal status of pedicabs. A decision by the Court to strike out its application for a declaratory judgment would release it from its shackles and enable it to proceed with the necessary legislation.
TfL's case

Mr Pereira responded to the three contentions made by Bugbugs as follows.

In response to the contention that TfL's claim amounted to an abuse because it was attempting to re-open a matter that had already been decided and that it (or its successor, the MPC) could have pursued on appeal, Mr Pereira argued that TfL had not been a party to the proceedings in Begg or Oddy. He submitted that, for TfL to be barred from litigating the point at issue, there would have to be "privity of interest" between it and the parties who had prosecuted one or both of the two cases. He referred me to a passage from the judgment of Sir Robert Megarry, V-C in the case of Gleeson v J Wippell and Co Ltd [1977] 1 WLR 510, which is quoted in Gore Wood at 32F-G, in which he said:

"… I cannot see this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiffs suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest". "
Mr Pereira submitted that, in the present case, there was no such privity of interest. He further submitted that, even if I were to find that there was privity of interest between TfL and the prosecuting body in Begg, this was plainly not the case as between TfL and the LTDA, which was the prosecution authority in Oddy

Mr Pereira submitted that, in order to establish abuse, Bugbugs would have to show that the point raised in the application for a declaratory judgment could and should have been raised in the previous proceedings. He emphasised that it was not sufficient merely to show that the matter could have been raised. He relied on the dicta of Lord Bingham in Gore Wood at page 33 (see paragraph 75 of this judgment) and to a similar statement by Lord Millett at 59 G-H. Mr Pereira submitted that, contrary to Bugbugs' contentions, the High Court had not decided the point at issue in its application for declaratory judgment.
The Begg case

Mr Pereira accepted that the Stipendiary Magistrate's decision in Begg referred to paragraph 16 of Schedule 1 to the 1985 Act. However, he pointed out that the quotation from paragraph 16 that appeared at paragraph 5 of the Stipendiary Magistrate's decision omitted the opening words (i.e. "in any enactment or instrument passed or made before the commencement of section 1 of this Act") of the paragraph. He submitted that it was that omission to which the Master was referring at paragraph 9(2)(a) and also at paragraph 10(2)(a) and (4)(a) of his judgment. He submitted that it appeared that the Stipendiary Magistrate had not considered the effect of those opening words which were central to the question of whether paragraph 16 had had the effect of amending section 4 of the 1869 Act.
As to privity of interest in the Begg case, Mr Pereira submitted that it was not right that the CPS were, in effect, acting as agents for the PCO. He relied on Mr Ellis' evidence that, once a case had been referred by the PCO to the CPS, it was for the CPS to decide whether to pursue a prosecution, what legal arguments to deploy and, if appropriate, whether the case merited an appeal. He submitted that Mr Ellis' evidence on this point was supported by PC Cadden's report on the case which stated:

"The Crown Prosecution Service have said that they will not appeal against the decisions of the Stipendiary Magistrate and they refer to the legal term "a lacuna" (a gap in the law)."
Mr Pereira said that there was no indication that the CPS had felt it necessary or appropriate to consult the PCO before reaching that decision. Moreover, at the time of the case, TfL was not in existence. The fact that licensing powers were subsequently transferred from the MPC to TfL did not, Mr Pereira submitted, make TfL privy to the activities of, or decisions taken by, the MPC or PCO in 1999. TfL is a very different type of body from the MPC, with different obligations and responsibilities. Mr Pereira argued that it would not be in accordance with justice that a decision made by the PCO to defer to the opinion of the CPS in 1999 should tie the hands of TfL in 2006.

As to the contention made on behalf of Bugbugs that the prosecution in Begg was in reality directed at Bugbugs, rather than against Mr Begg himself, Mr Pereira said that this was not the case. It would have been open to the CPS to proceed against Bugbugs (as was done in Oddy) but it chose not to do so. The fact that Bugbugs itself decided to conduct the case on Mr Begg's behalf should not prejudice TfL now.
The Oddy case

Mr Pereira submitted that the arguments before the District Judge in Oddy had concerned the method of charging passengers and the issue of whether the decision of the Court of Appeal in Lane (decided under different legislation applicable outside London) was binding on the Court. It was clear that the effect of paragraph 16 of Schedule 1 to the 1985 Act was not considered by the District Judge. As to the contention made on behalf of Bugbugs that, on the appeal, Pitchford J had the Begg judgment and must, therefore, have considered the effect of paragraph 16 of Schedule 1 to the 1985 Act, Mr Pereira argued that this was not realistic or credible. It was clear from the list of statutory provisions considered on the appeal that the text of paragraph 16 had not been before the judge. It is not contended by Bugbugs that any argument was directed to the judge about its effect. In those circumstances, he said, the judge would have had no reason to address his mind to whether the decision on the point in Begg had been correct. The fact that the judge had not taken paragraph 16 into account was, he argued, supported by his observation (at paragraph 31 of his judgment) that the definitions of "hackney carriage" and "stage carriage" had been left "entirely untouched" since 1869.

Mr Pereira submitted that, in the circumstances, it would not be fair or just for the Court to draw the inference that the judge had considered the application of paragraph 16 and to use that finding as a basis for deciding that TfL's application for a declaration was an abuse of process and should be struck out.

Mr Pereira argued that, in any event, there was plainly no privity of interest as between TfL and the LDTA, the prosecutor in Oddy. The allegation here was that TfL should have intervened in the case of Oddy on appeal to Pitchford J or the proposed appeal to the House of Lords and, for that reason, should now be treated as if had been a party to that appeal. He argued that it was one thing to say that a party to litigation or its privy should have argued a point in the course of that litigation. It was, however, quite another thing to argue that a third party should have become involved in the litigation and did not. He said that this was a novel submission, which if accepted, could have far-reaching consequences, particularly in the field of commercial litigation. A situation whereby persons or organisations were constrained to become involved in litigation for fear of a finding of abuse in the future would, he said, be inconsistent with the current notions of efficient litigation which the courts are seeking to promote.

Mr Pereira argued that, in any event, those at TfL were unaware at the time of the Oddy case of the potential for mounting an argument based on the effect of paragraph 16 of Schedule 1 to the 1985 Act. He relied on Mr Sugrue's evidence to the effect that he was unaware of the potential argument at the time, and for several years afterwards.

Mr Pereira pointed out that Bugbugs is claiming that, because Begg was not appealed, TfL cannot raise the issue now. At the same time, it is also being argued on behalf of Bugbugs that TfL should have intervened in the case of Oddy. He pointed out that his was an illogical position to adopt. If it is accepted that it would have been open to TfL to argue the point in the appeal of Oddy, why, he asked rhetorically, can it not do so now?

Mr Pereira went on to deal with Bugbugs' second contention, relating to TfL's conduct once its stance on the legal status of pedicabs had changed. Mr Pereira submitted that TfL had not sought to mislead the Parliamentary Committee. Mr Clarkson was not being asked about the effect of the 1869 Act, but about the definition in the Bill. When stating that pedicabs were not "hackney carriages" Mr Clarkson had referred on three occasions to "the law as it currently stands". It is likely that he did so because he was aware that there was an intention to challenge the current law.

As to Bugbugs' criticisms of TfL's conduct of this case, Mr Pereira rejected the suggestion that its evidence had been materially misleading. He said that Mr Ellis had not mentioned the case of Begg in his witness statement because TfL had not been a party to that case. Nor had he misrepresented the position when he said that, in 2003 and 2004, TfL was not focussing on the licensing of pedicabs. Mr Pereira said that it was true that TfL was giving some consideration to the licensing of pedicabs at that time. However, the priority of the PCO (as Mr Ellis had told the meeting on 4 July 2003: see paragraph 30 of this judgment) was the licensing of private hire vehicles. He said that it was understandable that Bugbugs should have a different perspective as to the PCO's priorities from that of the PCO itself. Mr Pereira submitted that, after the Master had adjourned the hearing, TfL had sought to be as open as possible, for example by disclosing copies of Advices from counsel received in 2000 and responding to requests by Bugbugs' solicitors for information.
Mr Pereira submitted that, in any event, the issue of TfL's conduct of these proceedings was irrelevant for the purposes of this appeal. The Master had made no finding in relation to the allegation that TfL's evidence had been misleading and Bugbugs made no complaint of the Master's decision in this regard.

Dealing with Bugbugs' criticisms of the Master's judgment, Mr Pereira argued that the Master had not erred in law. He rejected the contention that the Master had prejudged the issue of law raised by TfL's application. He submitted that it had been open to the Master to conclude that, in the Begg case, the Stipendiary Magistrate's attention had not been directed to (or had not considered) the opening words of paragraph 16 of Schedule 1 to the 1985 Act. Those words were not referred to in the Supplementary Prosecution Skeleton Argument which had been put before the Stipendiary Magistrate, nor in his judgment. He submitted that the Master's finding that the complainant in Begg could not be identified with TfL was correct for the reasons already referred to.

Mr Pereira also submitted, that the Master's finding, at paragraph 12(3)(c) of his judgment, did not amount to a general proposition of law. Rather, it represented his decision on the facts of this case. It was a conclusion to which he was perfectly entitled to come, which reflected the substance of the argument before him and which also reflected the "public interest" associated with this case.

Mr Pereira referred me to the evidence setting out TfL's reasons for making the application for a declaratory judgment. In his witness statement, Mr Sugrue explained that there is a convention in the procedure for promoting private Bills in Parliament, whereby a Bill's promoters must declare on oath that the Bill does not contain provisions whose effect the promoters could have achieved by some other means. He says that, since TfL is currently advised that the effect of paragraph 16 of Schedule 1 to the 1985 Act is to bring pedicabs within the definition of "hackney carriages" and, therefore, within the licensing regime for hackney carriages, TfL could not properly make such a declaration and could not, therefore, promote a private Bill to deal with the licensing of pedicabs. It is for this reason that TfL seeks clarification of the issue by the Court. At paragraphs 16-19 of his statement, Mr Sugrue explained why TfL had come to the conclusion that an application for a declaratory judgment was the best way to proceed.

Mr Pereira argued that the application for a declaratory judgment was not made pursuant to a private law claim between two individuals. Rather, it was an attempt by a public authority to clarify a legal issue affecting the public interest. He said that the effect of striking out the application would be to hinder TfL in the carrying out of its licensing functions.

Mr Pereira indicated that TfL did not accept Bugbugs' contentions that the inclusion of pedicabs within the hackney carriage licensing regime would result in the imposition of conditions that were impossible or unreasonable for pedicab operators and riders to meet. He said that it had sought to reassure Bugbugs and others about this. In particular, it had informed them that it would not be necessary for pedicabs to have motor vehicle insurance. Mr Pereira said that TfL believed that it would be possible to introduce sufficient flexibility into the hackney carriage licensing regime so as to make it suitable for pedicabs. However, he submitted that the content of any licensing regime was a matter of policy for the licensing authority, not for the Court. The licensing authority would take its decision after consultation with all interested parties and consideration of all material issues.

Mr Pereira reminded me that it is for Bugbugs, as the party alleging abuse, to discharge the burden of proof. He submitted that it had not done so. In the event that abuse was established, Mr Pereira reminded me that strike out was not the only remedy available to me. He referred me to CPR 3.4 and to the remarks in the judgment of Clarke LJ in Asiansky Television plc v Bayer Rosin [2001] EWCA Civ 1792, in which he emphasised the need for the court to consider alternative sanctions short of the "draconian" remedy of striking out the action, in order to meet the justice of the case. He submitted that, in the event that (contrary to TfL's contentions) the court were to take the view that TfL had acted improperly in any way, that could appropriately be met by a sanction in costs.
Conclusions

Bugbugs submits that the point now being raised by TfL was decided by the Stipendiary Magistrate in Begg. There is, as TfL has pointed out, some illogicality in this position since Bugbugs is at the same time arguing that TfL should have raised the point in the later case of Oddy. There is no doubt that the Stipendiary Magistrate in Begg considered the effect of paragraph 16 of Schedule 1 to the 1985 Act. What is not clear, however, is whether he was referred (or gave consideration to) the opening words of that paragraph. Certainly, he made no specific comment on them in his decision. I am satisfied, however, that the point was not raised before the District Judge or Pitchford J, in the case of Oddy and that it cannot be assumed from the fact that Pitchford J had the decision in Begg before him that he considered the point at all.
It is not for me to decide on the merits of the argument based on the opening words of paragraph 16. All I can say is that those words must be material when considering the possible effect of paragraph 16 on the definitions contained in section 4 of the 1869 Act.
We therefore, have a decision by a Stipendiary Magistrate who may or may not have considered the material words, and decisions by a District Judge and High Court judge who did not. That being the case, it does not seem to me that it can properly be said that the issue of the legal status of pedicabs has been decided by a court of competent jurisdiction so as to preclude, of itself, future challenge.
Applying the principles set out in the case of Gore Wood, it is necessary to consider first of all whether the argument now raised by TfL could and should have been pursued by it (or its predecessor, the MPC) in the case of Begg and/or Oddy. The first question that arises is whether there is 'privity of interest' as between TfL and the prosecution in each of those cases.

So far as Oddy is concerned, no privity of interest can arise as between TfL and the LDTA. Moreover, TfL had no control over the conduct of that case at first instance, nor over the arguments that were or should be deployed.

The position as between TfL and the prosecution in the Begg case is less clear. There is no doubt that, in law, TfL succeeded to the functions and responsibilities of the MPC in relation to the licensing of hackney carriages. In that area, therefore, TfL can be regarded as having privity of interest with the MPC. In practical terms, there has been continuity in the personnel employed within the PCO before and after its transfer to TfL, notably in the case of its Head, Mr Ellis.

However, the prosecutor in the Begg case was not the PCO, but the CPS. Although the PCO was the informant in the case and its initiator, it seems that it was not itself responsible for conducting the case or for taking decisions about its conduct. The terms of PC Cadden's report to Mr Ellis – in particular, its reference to the decision taken by the CPS not to appeal – strongly suggest that that was the case. The CPS was acting as an independent prosecuting authority, not as the agent of the MPC or the PCO. In those circumstances, it does not seem to me that it could be said that there was a sufficient degree of identification between TfL and the prosecutor in the case of Begg to amount to a privity of interest.

TfL argue also that there is no privity of interest as between Mr Begg (the defendant in the prosecution of 1999) and Bugbugs (the defendant in the claim for a declaration in 2006). Here, it seems to me that they are on less strong ground. It is true that the CPS could have brought proceedings against Bugbugs, as the owner of Mr Begg's pedicab, but chose not to do so. It is true also that it was Bugbugs' own choice to assist Mr Begg in his defence. However, it appears from PC Cadden's report, and his fax to Mr Smallwood, dated 10 December 1999, that it was understood by the PCO (and presumably by the CPS also) that "the defence" was, in effect, Bugbugs. In the fax, PC Cadden said that the case had not been "personal" to Mr Begg, but rather "a legal argument of licensing definitions and interpretations". These documents suggest to me that both parties were aware that the "real" defendant in the Begg case was Bugbugs

Following the Begg prosecution, the PCO did not request or receive a copy of the Stipendiary Magistrate's decision. PC Cadden's report to Mr Ellis did not set out in clear terms the basis on which the Stipendiary Magistrate had decided the case. In particular, there was no mention of paragraph 16 of Schedule 1 to the 1985 Act or the argument that had been based on that provision. There was no indication in the report that the CPS considered that the Stipendiary Magistrate had made a mistake of law. According to PC Cadden, the CPS merely suggested that there was a lacuna in the current law that could only be remedied by legislation. Thus, it does not seem to me that the PCO could be blamed for not seeking to take the case further at that stage.
The complaint made in respect of the Oddy case is that TfL declined the opportunity to intervene in the appeal to Pitchford J, or to accept the LDTA's invitation to join in a proposed appeal to the House of Lords. Here, it is said on behalf of Bugbugs, was TfL's chance to obtain an authoritative ruling on the legal status of a pedicab and it failed to do so.

The decisions of the District Judge and Pitchford J accorded with the advice that had previously been given to the PCO by the CPS, and with the Advice of counsel obtained in 2000. It is true that Mr Farmiloe had received a copy of the Begg decision in October 2002 and that, if he had read it carefully and referred back to the text of paragraph 16 of Schedule 1 to the 1985 Act, he might have realised (as Mr Sugrue did later) that there were grounds for believing that the decision of the Stipendiary Magistrate relating to the interpretation of paragraph 16 might be wrong. It is clear that he did not do so. The draft questions formulated by the LTDA's solicitors for the proposed appeal to the House of Lords did not refer to paragraph 16, and TfL's legal advisers made a judgment that an appeal based on those proposed questions was unlikely to succeed. It was not suggested that that judgment, of itself, was wrong. Rather, criticism is made that those in the legal department at TfL did not themselves raise the argument based on paragraph 16 of Schedule 1 to the 1985 Act (an argument that had not been raised thus far in Oddy).

It does not seem to me that a failure by a party to raise an issue by involving itself in litigation being conducted by a third party should (save possibly in the most exceptional circumstances which do not exist here) automatically render the raising of the same issue by that party in later proceedings abusive. As Mr Pereira observed, this would place a considerable onus on non-parties, particularly in the field of commercial litigation. It does not seem to me that it can properly be said that TfL 'should' have intervened in the Oddy case in order to argue a point that Mr Farmiloe should have realised was available to it.

I turn now to consider TfL's conduct once its view of the relevant law changed. By mid October 2004, TfL had leading counsel's Advice to the effect that the decisions in Begg and Oddy were wrong in law and had also been advised as to the steps that could be taken to rectify that error. It was not until more than a year later, in December 2005, that TfL disclosed these matters to Bugbugs. (It is suggested by TfL that Mr Smallwood was told in November 2004 that TfL now considered that pedicabs should be categorised as "hackney carriages". It may be that this is disputed but, in any event, it does not seem that the full implications were spelled out at that time.)

Meanwhile, TfL pressed on with its attempts to legislate in relation to the enforcing of traffic and parking regulations as against pedicabs and to introduce a system of registration for this purpose. These attempts led to the hearing before the Parliamentary Committee on 1 November 2005 and to the repeated statement of Mr Clarkson that "as the law currently stands", pedicabs were not hackney carriages. I accept the submission made by TfL that, qualified as it was (on several occasions), this was not a misstatement of the position. Indeed, it seems to me that Mr Clarkson, who had, I am told, been fully briefed on TfL's intentions, was choosing his words with considerable care. The matter at issue before the Committee was whether the proposed new definition of pedicabs would alter the existing legal definition. Thus, any future alteration in the law was not strictly relevant. Nor does it seem to me that, if TfL's intentions had been disclosed to the Committee, such disclosure would have been likely to have had the effect of solving any problems as to the licensing question. The Parliamentary Committee was not, after all, concerned with the licensing of pedicabs, but with matters relating to the enforcement of traffic and parking regulations.

It is, in my view, regrettable that, having received counsel's Advice as to how to proceed in October 2004, TfL did not inform Bugbugs of its position for 14 months, and allowed 21 months to elapse before initiating proceedings for a declaratory judgement. I realise that TfL had many other issues to deal with during that period and that, so far as pedicabs were concerned, it was concentrating its efforts on promoting the joint Bill dealing with the enforcement of traffic and parking regulations. Nevertheless, it could have acted more promptly.

During the interim period, Bugbugs was continuing to assist TfL in forwarding its efforts (as Bugbugs believed them to be) to introduce a new regime of licensing for pedicabs. I can understand why Bugbugs felt that its efforts had been wasted and why it resented the fact that it had been kept "in the dark" about TfL's real intentions for so long. I am satisfied that one important factor in TfL's decision not to disclose its intentions was a desire to avoid the point being "hi-jacked" by the LTDA and argued in the course of a private prosecution over which TfL had no control. I accept that, in taking this course, TfL were seeking to assist pedicab operators and riders who might be the subject of prosecution. Nevertheless, this risk could have been eliminated had TfL moved quickly to make its application to the Court.
Criticisms are also made of the conduct of these proceedings. It would clearly have been better if TfL had set out the full story at an earlier stage. Its failure to do so led to the hearing before the Master having to be adjourned. However, I accept its explanation for the omission of the reference to the Begg decision in the first instance. I am satisfied that there was no intention to conceal the fact of that decision. TfL was well aware that Bugbugs knew of it, so there would have been nothing whatever to be gained by concealment. It seems to me that TfL considered that the main obstacle it had to overcome was the judgment in the Oddy appeal and that is why Mr Ellis' narrative began there. Once TfL realised that it would have to give a full account of what had happened in the earlier period, it adopted a frank and open attitude and disclosed many documents, including some which were plainly privileged. I am satisfied that there has been no deliberate or dishonest attempt to conceal matters from the Court.

In deciding whether TfL has sought to misuse or abuse the process of the court by seeking a declaratory judgment, I must look at the whole picture.

TfL has responsibilities for transport in London which extend far beyond its role as the licensing authority for hackney carriages. It is concerned with wider issues of transport policy, in the context of which the question of the licensing of pedicabs falls to be considered.
It is generally agreed that a system of regulation is necessary for the safe and efficient operation of pedicabs. Such a system of regulation should ensure that only suitably qualified riders drive pedicabs, that pedicabs themselves are in a safe condition and that, if an accident occurs, passengers or other road users are compensated for any loss and damage incurred. Such regulation is plainly in the public interest. TfL has for some time been attempting to put in place a system of licensing which would provide a regulatory framework. It has encountered a number of problems along the way.

TfL has now decided, for the reasons set out by Mr Ellis, that the most convenient and effective way forward is by seeking to include pedicabs in an amended form of the hackney carriage licensing regime. It is not for me to say whether or not that would be feasible or appropriate. There may or may not be substance in the concerns expressed by Bugbugs about this course, although it is difficult to see why TfL would want to introduce a regime that was bound to fail. Be that as it may, however, it is clear that TfL cannot proceed with its proposed course unless and until it has an authoritative decision as to whether, in law, a pedicab is a "hackney carriage".
If TfL were to decide to promote a Private Bill in order to introduce a licensing system for pedicabs, it would have to make a declaration as to the absence of alternative means of obtaining its objective. According to Mr Sugrue, it cannot do this at present, because of the advice it has received that pedicabs come within the legal definition of "hackney carriages". TfL argue that, if it is to make such a declaration, it requires a decision of the Court on the legal status of pedicabs.

TfL's application for a declaratory judgment relates to a matter concerning the responsibilities of the State towards potential passengers of pedicabs and other road users, as well as to the operators and riders of pedicabs. This is, as TfL submitted, not a case where purely private interests are involved. The proposition made by Bugbugs is that TfL should in 2006/7 be barred from seeking a declaratory judgment by reason of decisions taken by the PCO and TfL in 1999 and 2003. Even if it were to be accepted that TfL or its predecessors had been "at fault" for not pursuing either or both of the cases further, it does not seem to me that this would necessarily mean that TfL is misusing or abusing the process of the court in seeking a declaratory judgment now. Public bodies such as TfL will inevitably have changes of policy and direction from time to time, according to the prevailing circumstances and to the opinions held by the directing minds of the organisation.

Bugbugs has suggested that TfL's conduct amounts to "unjust harassment". I cannot agree with that proposition. TfL has a duty to consider the interests of parties other that Bugbugs. It is, as I find, seeking to do this in what it considers to be the most effective manner. It has sought to mitigate the difficulties caused to Bugbugs by this litigation by agreeing to pay a substantial sum towards its costs of opposing TfL's application. At the same time as bringing its application, it embarked upon a wider process of consultation about the licensing of pedicabs. These are not in my view the actions of a party seeking to harass or act unjustly.
In all the circumstances, I take the view that the Master was fully entitled to dismiss Bugbugs' application to strike out TfL's claim. The appeal is dismissed.

Hit counter