Purple Parking Ltd and Another v Heathrow Airport Ltd

Hearing dates: 8th, 9th, 10th, 13th, 14th, 15th & 16th December 2010 12th, 13th, 14th, 18th, 19th, 20th January 2011

TABLE OF CONTENTS

Introduction

This is a claim in which the claimants allege abuse of dominant position by the defendant in preventing the claimants from accessing the forecourts at Heathrow Airport Terminals 1, 3 and 5 ("T1", "T3" and "T5" respectively) for the purpose of conducting part of their business of picking up and redelivering cars to customers who want to use one of their parking services. The proceedings were started on 19 ^th June 2010 and this action, which is actually the trial of the question of abuse on an assumption as to dominant position, has come on as an expedited matter pursuant to an order of Mr Justice Roth dated 12 ^th August 2010. Mr Alan Maclean QC led for the claimants ("Purple" and "Meteor"); Mr Mark Brealey QC led for the defendant ("HAL").

The respective businesses of the parties

HAL is a subsidiary of BAA (AH) Limited and BAA Airports Limited which in turn are members of the Ferrovial Group. HAL is the owner and operator of Heathrow Airport. That activity obviously has an enormous number of aspects. For present purposes the important aspects are car parking. It operates a number of car parks on the Heathrow Airport site ("on-airport" car parking), some of which are large open spaces and some of which are multi-storey (close to the terminals). The parking facilities offered by HAL vary in terms of pricing and services offered. The short stay car parks are priced so as to be appealing for short stays and to those who want to park close to the terminals, and the longer stay car parks (priced for longer stays) are those open ones farther away. The car parks are managed by a third party.

Purple owns car parks and provides car parking for those wishing to fly from Heathrow, but in their case the car parks are all off the airport site ("off-airport" parking). Meteor uses, but does not own, car parks which are technically within the airport boundary but is considered an "off airport" operator by HAL. Both are involved in the "meet and greet" or "valet parking" activities described below. In the terminology of this case HAL is called an "on-airport operator" and the other operators, such as Purple and Meteor, are called "off-airport operators".

If a passenger wishes to travel to Heathrow by car then he or she may park in one of the surrounding car parks. Very close to each terminal is a "short stay car park" owned by HAL. If the passenger parks in such a car park, then that passenger can walk to the adjacent terminal. If he or she parks in the farther flung long stay car parks parking is cheaper and there are shuttle mechanisms (buses or minibuses) to get the passenger to the terminal. (I ignore "business parking" for the purposes of this narrative.) However, an alternative to either of these is meet and greet or valet parking. Where this occurs the passenger drives to an agreed location by the terminal (in fact the terminal forecourts) and hands over the keys of the car to a representative of the car parking company – that is the drop-off or meet element. That representative then takes the car away and parks it while the passenger travels what is usually intended to be the short distance into the terminal. When the passenger arrives back from his or her journey, he makes an arrangement for picking up the car and the car is delivered to the same location more or less as the passenger emerges from the arrivals area (or so it is hoped), the keys are handed back and the passenger drives away – the pick-up or greet element. Where this takes place near to a terminal it has obvious benefits and convenience to the passenger because the passenger is not engaged in actually parking the car himself or herself and, depending on the actual location, never has to negotiate anything which can be described as a car park.

The claimants and the defendant all offer valet parking services to passengers flying from the three terminals relevant to this case. Until the dispute in this case arose, all three parties did their meeting and greeting from the forecourts of Terminals 1 and 3. In the case of Terminal 5, they all operated from forecourts at the time of its opening in 2008, but after a short while the position changed as will appear below. Having taken the car from the passenger, the parties then take the cars to their respective parking facilities – HAL has facilities on-airport and the two defendants take the cars away to off-airport car parks. This dispute concerns the use of the forecourt in that activity by Purple, Meteor and the other off-airport operators.

HAL's valet parking operation is carried out principally through a division (not a separate corporate entity) called Heathrow Valet Parking – "HVP". In terms of pricing it is significantly more expensive than Purple and Meteor. HAL also operates a business called Heathrow Meet & Greet. This does (in effect) exactly the same as HVP, but on a much smaller commercial scale. It is priced along the same lines as Purple and Meteor, and is targeted principally at the private, as opposed to the business, user. Its business is not significant when compared with HVP. It will not be necessary to refer to it very much during the course of this judgment.

The geography

During the opening of this case I asked for, and was given, a view of the various terminals, forecourts and car parks. I was able to see the geographical layout and the qualities of each forecourt and car park, and walked all of the journeys that passengers would have to take between car parks and forecourts on the one hand, and terminals on the other (except for one between lower levels of the T5 car park and the terminal). The various areas were accessed as a passenger would access them, by car and on foot. This was an illuminating visit, without which I would not have been able to appreciate many of the important features of the car parks and forecourts. This judgment takes into account, and reflects, what I saw.

This case is all about the appropriateness or otherwise of places for carrying on the meeting and greeting activities described above around the three terminals. It is therefore necessary to have an understanding of the layout of the facilities. It is different for each of the three terminals.

Terminal 1 layout

Along the frontage of Terminal 1, at the departures level, there is a forecourt with four parallel lanes. Lane 1, closest to the terminal, is available for security vehicles and buses only. The remaining three lanes are available for passenger drop-offs, whether by individuals being delivered to the airport by friends, relations or others (so-called "kiss and fly" passengers), minicabs or taxis. Each of the outer three lanes has a centre part for driving down with bays on each side for the cars to pull off and drop passengers. All these lanes are outside the departures area of the terminal. The outer two lanes are at a slightly lower level than the inner two lanes.

Cars enter the departures forecourt by a ramp. They turn right off the ramp into the various lanes. More or less opposite the end of lane 4 (the outermost lane) they can turn left into an area which is used by HAL for its valet parking activities – both drop-off and pick-up. It is an area with parking for about 15–20 cars. On the first day of this trial I had a view of the relevant areas, and to my eyes it presents as a small parking area off to the side of the departure forecourt lanes. It can present itself as a discrete area if one knows what one is looking for in the context of this case, but to a departing passenger who is not steeped in the issues in this case it will look like a small parking area which is somehow ancillary to the...