Biggin Hill Airport Limited v Mayor and Burgesses of the London Borough of Bromley

After a court has construed a contract, its jurisdiction when settling the consequential order is confined to giving effect to that judgment. It cannot use the order to rewrite the contract or determine further contractual rights outside the issue decided. A reservation preserving future contentions should not be included where its legal basis is unclear, proceedings have not been issued, and the reservation might imply a view on unresolved issues. A clear undertaking may be accepted to dispose of a distinct practical issue, including aircraft diversions required for safety.

The decision concerned the form of order following an earlier Court of Appeal judgment on the construction of clause 1.8 of a lease dated 6 May 1994. The lease regulated activities at an airport, including business aviation and other airport and aviation uses.

The airport operator sought an order declaring that several activities were permitted, although it accepted that they did not fall within business aviation as previously construed. The proposed activities included certain flights, mail and cargo operations, pre-existing activities, and diversion landings. The central issue was whether the court could grant that further relief or reserve future contentions when settling the order.

1. Disposition. Lady Justice Arden gave the leading judgment. Lord Justice Dyson and Lord Justice Pill agreed. The appeal was allowed. The order was settled in the form preferred by Bromley, excluding the airport operator’s proposed additional clause, but incorporating Bromley’s undertaking concerning safety diversions.
2. Limited jurisdiction on the form of order. The court’s earlier judgment had construed the expressions business aviation and other airport and aviation uses in clause 1.8. When settling the consequential order, the court could make only a declaration giving effect to that judgment. It had no jurisdiction to rewrite the lease.
3. No determination of additional contractual rights. The airport operator accepted that the listed activities were outside business aviation as construed, but sought a declaration that they were nevertheless permitted elsewhere under the lease. The court held that it was not open to it, at this stage, to decide that further activities were permitted when that was not the issue previously determined.
4. No reservation of unresolved claims. The court declined to include a provision stating that the order was without prejudice to future contentions. Pre-existing activities had been central to the earlier construction argument, so it was arguable that a further claim was no longer open. In addition, the proposed legal basis was unclear, no proceedings had been issued, and a reservation could imply a view on an unresolved issue.
5. Safety diversions. Bromley’s undertaking not to treat the operator as in breach where an aircraft landed and subsequently took off because a diversion was required for the safety of the aircraft or passengers was accepted. That undertaking disposed of the diversion issue.

The appellants were awarded 75 per cent of their costs, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division), [2002] EWCA Civ 1752. The court settled the form of order following its earlier judgment, accepted Bromley’s undertaking concerning safety diversions, excluded the proposed additional declaration, and allowed the appeal.
• Court of Appeal (Civil Division), 11 July 2001. The court had construed clause 1.8 of the lease, including the expressions business aviation and other airport and aviation uses.
• High Court, Chancery Division. The appeal originated from proceedings before Mr Strauss QC sitting as a deputy Judge of the Chancery Division. The supplied judgment gives no citation or further details of the High Court decision.