London Regional Transport v Mayor of London

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE ROBERT WALKER,LORD JUSTICE SEDLEY,LORD JUSTICE ALDOUS
Judgment Date24 Aug 2001
Neutral Citation[2001] EWCA Civ 1491
Docket NumberCase No: PTA+A 01/1843/A2

[2001] EWCA Civ 1491

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (MR JUSTICE SULLIVAN)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Aldous

Lord Justice Robert Walker and

Lord Justice Sedley

Case No: PTA+A 01/1843/A2

London Regional Transport (1)
London Underground Limited (2)
Appellants
and
The Mayor Of London (1)
Transport For London (2)
Respondents

Miss Elizabeth Appleby QC and Miss Janet Kentridge (instructed by the Solicitor to LRT for the appellants)

Lord Lester of Herne Hill QC and Mr Thomas de la Mare (instructed by Baker & McKenzie for the respondents)

LORD JUSTICE ROBERT WALKER

Introduction

1

This is an application for permission to appeal, with the appeal to follow if permission is granted. The applicants are London Regional Transport ("LRT") and its wholly-owned subsidiary London Underground Ltd ("LUL"). LRT is a body corporate established by the London Regional Transport Act 1984 as successor to the London Transport Executive. LUL provides public passenger services, by the London Underground railway network, in Greater London.

2

Public transport in London is in a process of fundamental change, and this litigation is concerned with one aspect of the debate about that process. This litigation has overlapped (both in time and in subject-matter) with more far-reaching judicial review proceedings. Sullivan J gave judgment in the judicial review proceedings on 30 July 2001 and on the following day he made the order in these proceedings from which LRT and LUL wish to appeal. It was in form an interim order, but for practical purposes it resembled a final order.

3

The primary legislation under which the changes are taking place is the Greater London Authority Act 1999 ("the 1999 Act"). As is well-known, the 1999 Act provided for London to have an elected mayor to lead the Greater London Authority and the first defendant in the proceedings is the Mayor of London, Mr Kenneth Livingstone ("the Mayor") who was elected on 3 May 2000. The second defendant is Transport for London ("TfL"), a body corporate established when s.154 of the 1999 Act came into force on 8 May 2000.

4

The Mayor is the Chairman of TfL. It employs as its Commissioner Mr Robert R Kiley, whose appointment in October 2000 received wide publicity. He is well known as having achieved success in improving the public transportation systems of New York and Boston and very many Londoners hope that he will have comparable success in London. From 8 May 2001 until 17 July 2001 Mr Kiley was also chairman of LRT. On the latter date the Secretary of State summarily removed Mr Kiley from that office. At that time he was about to present to the board of LRT a report prepared by Deloitte and Touche ("Deloittes") entitled 'Transport for London: London Underground Public-Private Partnership Emerging Findings' ("the Deloittes report").

5

Mr Kiley sent a copy of the Deloittes report to his successor as chairman of the board of LRT but did not have the opportunity of presenting it to the board himself. Instead, on 18 July, the Mayor announced his intention of publishing the contents of the report at a press conference at 2pm that day. Very shortly before the press conference was to be held Burton J granted an interim injunction in what were then intended proceedings (the claim form was issued on 19 July) restraining the defendants from publishing or otherwise disclosing the contents of the Deloittes report, and requiring them to identify the passages which they wished to publish.

6

This injunction (which was to restrain breach of confidence) was granted after a hearing at which both sides were represented but it is common ground that the hearing was severely limited by time constraints. The order of Burton J was to have effect for seven days. On 24 July Sullivan J continued the injunction until after a full hearing which was to take place on 30 or 31 July, after he had given judgment in the judicial review proceedings.

7

On 31 July Sullivan J discharged the injunction on the defendants' undertaking not to publish any part of the Deloittes report except in a particular redacted version, identified by an exhibit to a witness statement of Mr Kiley. However Sullivan J stayed his order until close of business on 21 August 2001 and the stay has been extended by this court. It is from that order of Sullivan J that LRT and LUL wish to appeal.

The Public-Private Partnership

8

After that quick sketch of the course of the litigation it is necessary to go back to the 1999 Act and identify some of its main features, especially as regards the Public-Private Partnership ("PPP") proposed for the London Underground. This is a very complex and controversial subject which was fully considered by Sullivan J in his judgment in the judicial review proceedings (from which there is, it seems, to be no appeal). It is inappropriate to go far into the issues in the judicial review proceedings, although Sullivan J's judgment in those proceedings is required reading for a full understanding of the political background. It also provides a valuable introduction to the opaque provisions of Part IV, Chapter VII of the 1999 Act (relating to the PPP). It is necessary to give some explanation of the PPP in order to see how the issue of breach of confidence arises, and to form a view about the strength of the public interest defence.

9

The general scheme of the 1999 Act, as regards the London Underground, was that LRT was at the end of a transitional period (beginning on 3 July 2000) to be replaced by TfL. The end of the transitional period was not a fixed date, but was to be when LRT ceased to provide public passenger transport services. LUL was not to disappear but its functions were to be restricted (from 1 April 2000) to the operation of underground railway services (as distinct from the provision, construction, renewal and maintenance of the track and all the other infrastructure of the underground railway system).

10

The latter functions are to be the private element of the PPP, involving the investment of many billions of pounds from the private sector. In order to prepare for this separation of functions LUL in February 2000 established three wholly-owned subsidiaries ("the Infracos"). They are Infraco BCV Ltd, Infraco JNP Ltd and Infraco Sub-surface Lines Ltd. 'BCV' refers to the Bakerloo, Central, Victoria and Waterloo & City Lines. 'JNP' refers to the Jubilee, Northern and Piccadilly Lines. All these lines are together called the deep tube lines. The third Infraco covers the Circle, District, East London, Hammersmith & City and Metropolitan Lines, which run either close to the surface or on the surface. The establishment of the Infracos, the implementation of the London Underground Infrastructure Companies Asset Transfer Scheme 2000 and the making of three Infraco service contracts dated 28 March 2000 achieved, from 1 April 2000, a separation of functions, assets, workforce and management without (at that stage) any change in ultimate ownership or control.

11

The separation of ownership will come when (as is intended) LUL sells the shares in the three Infracos to successful private-sector bidders. Negotiations with a view to these disposals will also cover renegotiation of the existing Infraco service contracts (running for a term of 30 years) and the grant to the Infracos of 30-year leases of the infrastructure assets to which their respective service agreements relate. In the terminology of Part IV, Chapter VII of the 1999 Act the Infracos will become PPP companies, the service agreements will become PPP agreements and the leases will be PPP leases.

12

The revised timetable for the introduction of the PPP is set out in the particulars of claim (served on 30 July). In October 1999 prequalification of the bidders for the deep line competitions took place and invitations to tender were issued. Tenders were submitted in March 2000 and short-listing of bidders in the two deep line competitions took place in July 2000. In September 2000 a similar process began for the subsurface lines. Short-listed deep line bidders had to submit their best and final offers in November 2000, followed by a period of due diligence and the submission of re-priced proposals in January 2001. The preferred bidders in the two deep line competitions were announced on 2 May 2001, and the preferred bidder for the sub-surface lines is expected to be announced in the near future.

13

Sullivan J has explained in his judgment in the judicial review proceedings that the Government had originally planned to have a timetable under which the competitions would have started before the end of 1998 and would have been completed, and finalised by completion of PPP contracts and leases, by April 2000 (that is, before TfL came into existence and before the new Mayor of London was in office). During the passage of the Bill it became apparent that that could not be achieved. That led to amendments, introducing the concept of the transitional period, which were enacted as Part IV, Chapter XVI of the 1999 Act (Sullivan J described ss.297 and 298, in Chapter XVI, as being of critical importance to the judicial review proceedings).

14

Mr Kiley's appointment as chairman of LRT came within days of the announcement of the preferred bidders. He was appointed in order to lead negotiations with them as to the final terms of the PPP contracts (including PPP leases). In the negotiations he was required to observe 'key criteria' which were set out in a memorandum of agreement between the Government and TfL. But on 29 June Mr Kiley wrote to the Prime...

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