Battle of the bus lanes: Addison Lee injuncted by High Court

3 May 2012 by Leanne Buckley-Thomson

Transport for London (TfL) v Griffin & Ors [2012] EWHC 1105 (QB) – Read Judgment

Transport for London (TfL) have succeeded in their High Court application for an injunction restraining Addison Lee Taxis from encouraging drivers to use London bus lanes. Mr Justice Eder ruled that the injunction would not breach Addison Lee Chairman John Griffin’s free expression rights.

This case is about traffic regulation orders (TROs) made by TfL dealing with the use of designated bus lanes. TfL’s policy is that private hire vehicles (PHVs – or mini-cabs in ordinary parlance) can only enter bus lanes to pick up or set down whereas taxis can use them as a through-route. The adopted definition of “taxi” means only Hackney Carriages qualify (reg. 4 of the Traffic Signs Regulations and General Directions).  Failure to comply with, or acting in contravention of, TROs is an offence under s8(1) of the Road Traffic Regulation Act 1984.

The Third Defendant, Eventech, filed a claim for judicial review challenging this legislation on the basis that the distinction between taxis and PHVs is irrational and contrary to EU law. Subsequently on about 14 April 2012 a notice was sent by Addison Lee (AL) to their drivers stating that they were fully entitled to use the bus lanes and would be indemnified from fines or liabilities. On 16 April 2012 TfL issued an application for an interim injunction. AL issued a press release and posted the notice to their drivers on their website where it remained at the time the application was heard on 23 April 2012, Mr Justice Eder presiding.

Undertaking

The Defendants were prepared at the outset to give an undertaking that they would not communicate to any person, in advance of a fine or liability being incurred for contravention of legislation governing the use of bus lanes, that they would discharge or reimburse such fine or liability. The only remaining issue was whether TfL should be granted an injunction restraining the Defendants from “causing, encouraging or assisting any PHV driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers”.

Freedom of Expression

Addison Lee argued that such an injunction would constitute a serious interference with Mr Griffin’s and AL’s freedom of expression guaranteed by Article 10 ECHR [Paragraphs 75 and 76]. It was submitted that:

• TfL must show the conduct to be restrained constitutes a contravention of s.44 of the Serious Crimes Act (SCA) 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.
• The evidence and submissions filed by TFL establish neither.
• On the contrary, it is highly unlikely that a defence under s.50 of the SCA would fail given the Defendants’ reasonably held belief that the TROs are invalid and that their breach does not give rise to a criminal offence.
• TFL has failed to establish it is more likely than not that the TROs are compatible with EU law and have not advanced any plausible justification for discriminatory treatment.
• There are no exceptional circumstances that would serve to lower the threshold required for such objective justification .

TfL responded that the Defendants could still maintain, to the media and by lobbying, that their interpretation of the legislation is correct. Although the injunction sought restricts the Defendants’ freedom of expression it is “minimal” [paragraph 77].

Mr Justice Eder held that the correct approach was that the present legislation is presumed valid but, as stated by Lord Goff in Kirklees BC v Wickes Building Supplies Ltd [1993] AC 227, the existence of the alleged defence is to be taken into account in the exercise of the court’s discretion [paragraph 78].

Necessary and balance of convenience

Mr Justice Eder accepted the submissions in relation to Article 10 had force in the context of the original injunction sought however, following an indication by him, this had been redrafted. The injunction now sought was limited and sought to prohibit conduct constituting a criminal offence. He therefore deemed the injunction necessary, within the meaning of Article 10, and just and convenient in the circumstances. Mr Justice Eder considered [paragraph 80]:

• the Defendants had characterised the Notice as an “instruction”
• Mr Griffin was instructing one of his drivers in a video clip
• AL’s press release remained on its website
• PCNs (i.e. penalty notices) for bus lane contraventions showed an upward trend
• Mr Griffin and AL embarked on a media campaign
• Mr Griffin didn’t appear to consider that the low number of contraventions reflected lack of confidence in his plan
• Mr Griffin and AL had been reported saying the reason for the notice was “to speed up” the judicial review claim

Mr Justice Eder deemed such conduct to demonstrate a substantial risk that, unless restrained, Mr Griffin and AL were prepared to take action which potentially constituted a breach of criminal law. The undertakings left “an important gap which the injunction now sought is intended to fill”. The considerations indicated damages would be inadequate and, having regard to the balance of convenience, militated strongly in favour of the grant of the injunction [paragraph 83]. It was legitimate to have regard to the risks that would ensue if they were not restrained even if the individual PHV drivers are free to choose [paragraph 86].

Although accepting it was “not possible to measure the extent” of problems Mr Justice Eder held that unless an injunction were granted there was a substantial risk of significant problems [paragraph 87]. Although the grant of relief may cause significant damage to the Defendants this would be loss of additional profits derived from AL’s drivers being persuaded to drive in bus lanes, which the Defendants did not dispute would be unlawful on the face of the present legislation. A party challenging legislation who chose not to seek interim relief nor an earlier expedited hearing should expect to have to comply in the interim [paragraph 88].

Further arguments raised

In addition to arguments surrounding Article 10, Ms Demetriou QC for AL argued that:

• The injunction was not clear, precise and unambiguous
• It was far from clear that criminal prosecutions would prove inadequate.  There were no exceptional circumstances to justify interim relief
• An injunction would interfere with the status quo
• It was unclear that an injunction would serve any tangible purpose. AL drivers would remain free to ignore the TROs and could raise the incompatibility of the TROs as a defence
• An order for an expedited hearing was the appropriate way of managing this case
• There is a compelling defence to any criminal prosecution

Mr Justice Eder considered each submission in turn. He did not consider that the wording was inappropriate as “encourage or assist” was used in the definition of the offence created by s.44 of the SCA therefore were sufficiently precise [paragraph 69].  Whilst agreeing that the existence of a defence to a criminal prosecution was an important factor to be weighed in the balance, Mr Justice Eder assured that he had done this [paragraph 94].  He was not convinced by the remaining arguments [paragraph 90-93].

Comment

Mr Justice Eder concluded at paragraph 95 that it was necessary, just and convenient to grant the injunction sought subject to the cross-undertaking by TfL until determination of the judicial review proceedings or further order. He further granted an interim declaration, accepted the Defendants’ undertakings and made an order that the judicial review proceedings be expedited.

The outcome of the judicial review proceedings remains to be seen. Although Mr Justice Eder would not pass comment, the observations of Michael Kent QC (the Deputy Judge who had granted TfL permission to apply for judicial review) were noted:

…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.

As submitted on behalf of TfL this is “hardly a ringing endorsement” however it appears accepted by all that the issues raised are “arguable”.  For now the battle of the bus lanes continues.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• Report by Joshua Rozenberg in the Guardian
• Hate speech and the meaning of “unacceptable behaviour”
• The rising cost of free speech: Reynolds, contempt and Twitter