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
MR JUSTICE EDER
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TRANSPORT FOR LONDON
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(1) JOHN GRIFFIN
(2) ADDISON LEE PLC
(3) EVENTECH LIMITED
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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
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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’.
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Mr Justice Eder:
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
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.
Chairman, Addison Lee plc”
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:
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.
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.”
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.
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  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)  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
20.04.2012 (until 14:30)
Table 2: FPNs
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  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  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  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  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)  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  UKHL 44, at .”
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.
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  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  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  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.
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.
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.
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.
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.