Jet2.com Ltd v Blackpool Airport Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE BEATSON,Mr Justice Beatson |
| Judgment Date | 03 December 2010 |
| Neutral Citation | [2010] EWHC 3166 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CLAIM NO 2010 FOLIO 1294 |
| Date | 03 December 2010 |
[2010] EWHC 3166 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Before :The Honourable Mr Justice Beatson
Case No: CLAIM NO 2010 FOLIO 1294
Philip Shepherd QC (instructed by Bird and Bird LLP) for the Claimant
Michael Crane QC and Paul Sinclair (instructed by Eversheds LLP) for the Defendant
Hearing dates: 18 November 2010
Mr Justice Beatson :
Introduction
This is an application to continue until trial an injunction granted on 4 November by Hamblen J on the claimant's application made on short notice: see [2010] EWHC 2904 (Comm). The defendant, Blackpool Airport Limited, operates Blackpool airport. It holds a Civil Aviation Authority Public Use Aerodrome Licence that allows flights for the public transport of passengers. The claimant, Jet2. com, is a low cost airline with a fleet of over thirty aircraft operating scheduled flights from eight airports in the United Kingdom, including Blackpool, mainly to European leisure destinations.
The claimant has been operating at Blackpool airport since March 2006 under a contract (“the Letter Agreement”) with the defendant. In May 2008 95% of the shares in the defendant's holding company were acquired by a subsidiary of Balfour Beatty PLC. At that time the airport was making a substantial operating loss and Balfour Beatty and the management team of the defendant company were understandably anxious to eliminate this loss. Since spring 2010 relations between the claimant and the defendant have deteriorated. The dispute between them concerns the operating hours of the airport and whether the defendant is contractually obliged to accept the claimant's flights outside its promulgated operating hours. In the winter the promulgated operational hours are 0700 to 2100 hours. In the summer they are 0600 to 2000 hours.
These proceedings were launched after the defendant stated that as from midnight on 29 October 2010 it would not accept departures or arrivals scheduled outside the promulgated operating hours. Two of the claimant's flights had to be diverted to Manchester and the passengers on those flights and the next outward flights had to be transported by bus between Manchester and Blackpool airports. Notice of the application was given to the defendant at 10:00pm on 3 November and the matter came before Hamblen J on 4 November.
Hamblen J's Order:
The material parts of the Order made by Hamblen J are:
“2. Until the Return Date or until further order:
(a) The defendant whether by itself, its officers, servants or agents or otherwise howsoever must not refuse to provide any of the services set out in paragraph 2(a)(i) (the “Services”) of an agreement in writing between the claimant and the defendant dated 23 September 2005 a copy of which is appended hereto at Appendix 1 (the “Letter Agreement”) in respect of any flights of the claimant from and to Blackpool airport in the claimant's flight schedules as published on the applicant's website or as otherwise required by the claimant (the “Claimant's Flights”) in an equivalent manner [to] which the defendant provided the Services during the period covering the claimant's winter 2009 flight schedules as published on the claimant's website; subject to sub-paragraph (b) below.
(b) The defendant whether by itself, its officers, servants or agents or otherwise howsoever must not refuse to provide approach radar services in an equivalent manner in which the defendant has provided such services to the applicant in the 6 months preceding the date of this order.
(c) The claimant and the defendant must not disclose any of the terms of the Letter Agreement save as provided by clause 3 thereto.”
The contract:
The Letter Agreement dated 23 September 2005 was made between the defendant (“BAL”), City Hopper Airports Ltd and the claimant. It states that it is made “in relation to low cost services from and to Blackpool airport (“BA”)”. Its material provisions are:
“1. Jet2. com and BAL will co-operate together and use their best endeavours to promote Jet2. com's low cost services from BA and BAL will use all reasonable endeavours to provide a cost base that will facilitate Jet2. com's low cost pricing.
Jet2. com proposes…to base one B737–300 aircraft, or its equivalent, at BA from the commencement of the summer operating season, 26 March 2006, and to operate and build its fleet at BA in accordance with demand for an initial period of 15 years from the date of the first service by Jet2. com from BA and the terms set out in this Letter Agreement will, except as otherwise stated, apply for the 15 year period.
…
2. In consideration of the investment that Jet2. com is making in offering such services from BA, BAL will make available the following pricing and other benefits to Jet2. com in relation to BA:
(a) (i) BAL will levy airport charges on Jet2. com on the basis of the charging scheme as set out in Appendix A for the initial period of 15 years commencing on the date of Jet2. com's first flight from BA. These charges include all BAL's aircraft movement, handling and passenger charges to Jet2. com including landing, navigation, marshalling etc, parking, passenger facilities charges, passenger security charges, security, baggage x-ray and security screening, baggage handling, bussing, CUTE and check-in desk charges.
For the avoidance of doubt, these charges do not include charges for the provision of labour for passenger check-in and boarding supervision as is typically provided by handling agents.
(ii) In the event of increased terrorist activity resulting in further government-imposed security restrictions, BAL will reserve the right to pass on to Jet2. com any additional costs reasonably incurred by BAL.
…
The terms set out in this Letter Agreement represent the whole agreement between BAL…and Jet2. com in relation to their subject matter and cannot be changed except by a written document signed by all such parties.
In the event of any inconsistency between the terms of this Letter Agreement and the BA Conditions of Use, the terms of this Letter Agreement shall prevail to the extent of that inconsistency. Nothing in this Letter Agreement is to affect the right of Jet2. com to receive from time to time whatever incentives or benefits are provided for in the Conditions of Use, to the extent in any event not provided to Jet2. com pursuant to the terms of this Letter Agreement.”
The defendant thus agreed with the claimant to use its best endeavours to promote the claimant's low-cost services from Blackpool airport and to use all reasonable endeavours to provide a cost base that would facilitate the claimant's low-cost pricing. The claimant stated that it proposed to commence a service between Belfast and Blackpool airport, to base one Boeing 737–300 aircraft at Blackpool from the summer 2006 operating season and to operate and build its fleet at Blackpool airport in accordance with demand for “an initial period of 15 years”. The agreement also states that the term of the agreement “will, except as otherwise stated, apply for the 15 year period”.
Clause 2 refers to a charging scheme in Appendix A. Appendix A states that the charging scheme “is inclusive of all BAL's actual charges relating to aircraft operations, including all passenger related charges as described in clauses 1 and 2 of the letter agreement”. Appendix A also provides for a flat charge per departing passenger for years 1–3 and an increased charge per departing passenger in years 4–15 inclusive except for certain services to destinations in the United Kingdom and Eire for which the lower per passenger charge would apply throughout the 15 years.
By clause 3 the defendant and the claimant agreed not to disclose any term of the agreement and to ensure that none of their officers or employees disclosed any term “except when necessary for a proper purpose to a competent authority (such as a national or municipal government body or agency); to a court of law or in any legal proceeding; to the senior management of a party or its parent undertaking or its ultimate parent undertaking, to the auditors of or any lawyer or professional person acting for a party, its parent or ultimate parent, or to a prospective purchaser”. In the case of disclosure to a purchaser disclosure was only permitted following “prior written consent from the other parties” such consent not to be unreasonably withheld or delayed.
The defendant's standard conditions of use provide that the use of the airport facilities are subject to local flying restrictions and procedures published from time to time in the UK Air Pilot and NOTAMS (“Notice to Airmen”) and any orders, instructions or directions given by or on behalf of the defendant. They also provide that the operator shall pay the appropriate charges for landing, parking or housing. The charges are in a schedule. It provides for standard landing fees and states that surcharges apply for movements outside promulgated airport hours. There are two rates, one for movements between 2100 and 2200 hours and a higher one for movements between 2201 and 0700 hours. Paragraph 2 of the conditions of use also provides that use of the airport is subject to inter alia NOTAMS and any order, construction or direction given by or on behalf of relevant government departments.
The regulatory framework:
The regulatory framework within which the defendant operates Blackpool airport is contained in the Air Navigation Order 2005 SI 2005 No 1970 (“the 2005 Order”). The Civil Aviation Authority (“CAA”) granted the defendant a Public Use Operations Licence in respect of the airport. The terms of the Licence reflect Articles 126(1)(a), 128(1)(b) and 128(3)(b) of the 2005 Order....
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...Kingdom Ltd [2004] EWHC 1551 (Ch) [25]; Lloyd v MGL (Rugby) Ltd [2007] EWCA Civ 153 [28] and Jet2.com v Blackpool Airport Ltd [2010] EWHC 3166 (Comm) [40]. Those cases do not go so far as to exclude all estoppels as incompatible with an entire agreement clause. I reject the submission th......