Birmingham & Solihull Taxi Association & Others v Birmingham International Airport & Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE WYN WILLIAMS,Mr Justice Wyn Williams |
| Judgment Date | 27 July 2009 |
| Neutral Citation | [2009] EWHC 1462 (Admin),[2009] EWHC 1913 (Admin) |
| Docket Number | Case No: CO/6120/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2009 |
[2009] EWHC 1462 (Admin)
The Honourable Mr Justice Wyn Williams
Case No: CO/6120/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMIGHAM DISTRICT REGISTRY
ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street
Cardiff
Miss Joanne Clement (instructed by Messrs Bearwoods Solicitors) for the Claimants
Mr Neil Calver QC and Mr Gerard Rothschild (instructed by Messrs Eversheds LLP Solicitors) for the Defendant
Interested Party did not appear and was not represented
Hearing date: 19 June 2009
Mr Justice Wyn Williams :
The First Claimant is a company limited by guarantee. It operates as a non-profit making association to promote the well-being of owners and drivers of hackney carriages within the Birmingham and Solihull areas. All its members are licensed hackney drivers and the First Claimant represents the interests of those drivers in a variety of ways. The First Claimant is funded by annual subscriptions from its members although I do not understand the subscriptions to be its only source of revenue. The Second Claimant is a hackney carriage driver and a member of the First Claimant.
The Defendant operates Birmingham International Airport. On 4 October 2004 it entered into a written agreement with the First Claimant (hereinafter referred to as “the licence agreement.”) whereby it agreed to grant to the First Claimant an exclusive licence to provide hackney carriage services for members of the public who were users of the airport. The First Claimant and Defendant agreed that the licence would subsist for a period of five years commencing 1 March 2004.
The licence agreement contained many detailed provisions. Clause 12 contained a number of provisions relating to termination of the licence.
It is common ground that the licence agreement subsisted for the full period of 5 years from 1 March 2004.
In 2008 the Defendant began a tender process relating to the grant of a new licence to provide hackney carriage services from 1 March 2009. On 9 January 2009 the Defendant wrote to the First Claimant in the following terms:—
“Following our invitation for BASTA to tender for the renewal of the above Licence, which as you were aware was due to expire on the 28 February 2009, we are pleased to announce that subject to contract your tender submission has been successful.
The tender process was, as you can imagine, very competitive with eleven companies initially expressing an interest to operate for taxi services at Birmingham International Airport. Subsequently seven companies were invited to tender and thereafter five companies were short listed to present their proposals to us. The tenders provided not only a choice of Hackney Carriage operators but also very strong interest from the Private Hire and taxi management sectors. Each tender was judged not only on their financial offer to Birmingham International Airport to operate the Licence for taxi services but also importantly on the levels of customer service which would be provided to our passengers which your suggestion of a Customer Service Desk within the main terminal building was a contributing factor in our decision.
We are currently now in the process in drafting the new Licence to Operate for taxi services at Birmingham International Airport which will be forwarded to you for signature in due course.”
At or about the end of January 2009 a draft licence agreement was provided by the Defendant to the First Claimant. As was to be expected, the First Claimant wished to negotiate in relation to some of the terms contained within the draft.
A meeting took place at or about the end of January 2009 between representatives of the First Claimant and Defendant. I understand that one of the representatives of the First Claimant was Mr Irfaan Ahmed, the chairman of the First Claimant. I say that since he has made a witness statement describing what occurred at the meeting. In summary, according to him, the representatives of the Defendant made criticisms about some aspects of the First Claimant's service. A point was also raised about the fact that the First Claimant had not filed its accounts for the year 2007 at Companies House. According to Mr Ahmed, the Defendant's representatives were told that the filing of the accounts had been delayed because the First Claimant had needed to deal with losses which had been incurred in the relevant accounting year.
One of the Defendant's representatives at this meeting was Mr Richard Gill, its head of market development. Although Mr Gill has made a witness statement in these proceedings he has not either confirmed or contradicted the account of the meeting put forward by Mr Irfaan Ahmed.
Apparently another meeting took place between representatives of the First Claimant and the Defendant in the middle of February. A number of issues were discussed and, in the main, they centred upon the terms and implementation of the new licence agreement. There was a discussion about when the licence would be executed and the First Claimant's representatives indicated that this would occur shortly after an annual general meeting of the First Claimant which was due to take place.
On 8 April 2009 the First Claimant held its annual general meeting. New directors were appointed. On 10 April 2009 a meeting took place between representatives of the First Claimant and Mr Johal on behalf of the Defendant. Mr Johal made various complaints about some of the services which had been provided by the First Claimant's members. According to Mr Irfaan Ahmed, Mr Johal asked, specifically, when the new licence would be signed and he was told that this would occur once the new directors and/or committee of the First Claimant had discussed it in detail.
On 13 May 2009 a further meeting took place between representatives of the First Claimant and Mr Johal and Mr Gill. It is common ground that the First Claimant's financial position was discussed in detail at this meeting. It is also common ground that by 13 May 2009 the First Claimant had filed its accounts for the year ending December 2007. The accounts showed that it had made a loss of £289,952 in that financial year. This position was to be contrasted with the fact that in the previous financial year the First Claimant had made a profit of £216,836.
In his witness statement on behalf of the Defendant, Mr Gill says that he first became aware of the accounts for the year ending December 2007 on 8 May 2009. He also asserts that the meeting on 13 May 2009 was called because of the Defendant's disquiet about the First Claimant's financial position. Mr Irfaan Ahmed's witness statement contains no information about when the Defendant first became aware of the accounts for the year 2007. Upon instructions, however, Miss Clement for the Claimants, told me that a draft of the accounts had been provided to the Defendant in February 2009.
At the conclusion of the meeting the Defendant's representatives handed a letter to the representatives of the First Claimant. The letter was in the following terms:—
“Dear Irfaan
Re: Variation to the Licence to Operate between Birmingham International Airport Limited ('BIA') and Birmingham and Solihull Taxi Association ('BASTA') dated 4th October 2004.
We refer to the standard Licence to Operate made between Birmingham International Airport Limited and Birmingham and Solihull Taxi Association dated 4th October 2004 (hereinafter referred to as “the Licence”).
As you are aware from previous discussions we have been reviewing the provision of the services. This review has led BIA to the opinion that there has been a substantial deterioration in BASTA's financial position and we hereby formally write to notify you of our intention to terminate the Licence in accordance with the provision of clause 12.3.6. Whilst clause 12.3.6 gives BIA the right to terminate on 7 days notice it has been decided that termination will take effect from Sunday 31st May 2009.
……..”
According to Mr Ahmed, the first indication the First Claimant was given that the Defendant intended to terminate the licence was when it received that letter. Mr Ahmed says that the First Claimant's representatives asked for two weeks to show that its financial situation had been resolved but the Defendant refused such a request.
On 20 May 2009 the Defendant entered into a licence agreement with the Interested Party. The Defendant granted to the Interested Party an exclusive licence. The licence was specified to commence at 00.01a.m. on 1 June 2009.
As I understand it the Interested Party began providing hackney carriage services from the time and date specified in the licence agreement into which it had entered. It has continued so to do.
These proceedings were commenced by a Claim Form issued on 16 June 2009. The Claim Form specified (section 3) that the decision to be judicially reviewed was the decision taken by the Defendant to terminate the licence agreement as contained in the letter of 13 May 2009.
The Claimants sought urgent interim relief. His Honour Judge McKenna, sitting as a Deputy High Court Judge in the Administrative Court in the Birmingham District Registry ordered:—
“2. Interim relief granted allowing BASTA drivers (with taxi and driver permits) to provide services at the Airport until the claim is determined. Liberty is...
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