London Buses Services Ltd v Tramtrack Croydon Ltd

An appellate court should not finally determine a point which is hypothetical and not appropriate for final decision. A first-instance determination of such a point may be set aside. The court’s order also shows that very limited success on a hypothetical point may justify awarding most of the appeal costs to the respondent.

London Buses Services Ltd v Tramtrack Croydon Ltd was an appeal from the Queen’s Bench Division before Mr Justice Tomlinson. The Court of Appeal dismissed the appeal, subject to setting aside passages concerning whether measures intended to increase passenger-carrying capacity would involve a change to, or a change outside, the service parameters in section 9 of part 4 of the specification. The central issue recorded in the supplied text was whether that point, being hypothetical, should be finally determined.

Lord Justice Longmore delivered the order of the court.

1. The appeal was dismissed save for a limited matter. The court set aside the last sentence of paragraph 34 of the judge’s judgment and the corresponding clarification in the supplementary judgment of 17 March 2006.
2. The passages set aside concerned whether measures intended to increase passenger-carrying capacity would involve a change to, or a change outside, the service parameters set out in section 9 of part 4 of the specification.
3. The court regarded the appellant’s success as very limited. The relevant point was, at that stage, hypothetical and not appropriate for final decision.
4. Permission to appeal to the House of Lords was refused. The appellants were ordered to pay three-quarters of the respondent’s appeal costs, including the costs of responding to the notice of appeal and first skeleton argument.

• Court of Appeal (Civil Division): Appeal dismissed save for the setting aside of specified passages; permission to appeal to the House of Lords refused. Judgment dated 19 December 2006, [2006] EWCA Civ 1832.
• Queen’s Bench Division: Appeal from the decision of Mr Justice Tomlinson.