Easyjet Airline Co Ltd, R (on the application of) v Civil Aviation Authority

A public authority which voluntarily undertakes consultation beyond its statutory duty must conduct the whole process properly and fairly. Fairness is contextual. Its requirements depend on the nature of the decision, the authority’s function and statutory framework, and the position adopted by consultees.

A notice under regulation 12(1) of the Civil Aviation Authority (Economic Regulation of Airports) Regulations 1986 must state conditions which the authority provisionally intends to impose after considering all centrally important material already received. A figure used merely as a holding position does not satisfy that requirement. Nevertheless, a consultee which knowingly participates fully without objecting to that defect may be too late to rely upon it after the final decision.

The Civil Aviation Authority fixed the airport-charge price cap for Gatwick Airport for the five years beginning on 1 April 2008. The determination included a substantial allowance for increased security costs. EasyJet, a major airline user of Gatwick, sought judicial review of the determination.

After a formal consultation deadline, the Authority obtained extensive further material from the airport operator, including an executable security-demand model, without sharing it with the airlines. Collins J dismissed the claim in [2009] EWHC 1422 (Admin).

The appeal concerned whether the extended consultation had been conducted fairly and whether the Authority’s November 2007 proposals constituted a valid notice under regulation 12(1) of the Civil Aviation Authority (Economic Regulation of Airports) Regulations 1986.

1. Appeal dismissed. Dyson LJ gave the leading judgment. Maurice Kay LJ agreed and added reasons concerning the regulatory context. Rimer LJ agreed with both judgments.

2. Whether procedural fairness requires safeguards beyond a statutory procedure depends upon the decision’s entire context. The Authority was an expert economic regulator making an objective price-control assessment under section 39(2) of the Airports Act 1986, rather than adjudicating between competing private claims. The court did not finally decide whether compliance with regulation 12 alone would ordinarily satisfy fairness.

3. Once the Authority voluntarily undertook consultation extending beyond regulation 12, it was required to conduct that consultation properly and fairly. The process was nevertheless fair. The airlines had extensively tested the airport operator’s evidence, identified its weaknesses and indicated that the Authority should complete the scrutiny. They neither requested access to later material nor sought an extension. Their position differed materially from that of the consultee in R (Eisai) v NICE [2008] EWCA Civ 438, which had expressly sought the executable model throughout consultation.

4. The November proposals were not a valid notice under regulation 12(1). Such a notice must identify conditions which the Authority has provisionally decided and intends to impose, subject to representations. The Authority must first consider all centrally important material already presented and must not expect further centrally important material apart from consultation responses. Here, the security-cost submission was centrally important but had not been considered; the published figures were only a holding position.

5. The defect was a procedural irregularity capable in principle of cure under regulation 18. The Authority could not rely on that provision because it had neither recognised the irregularity nor considered prejudice and appropriate curative steps before deciding.

6. EasyJet had known the proposals’ deficiencies, made detailed representations and continued participating without objecting that the statutory notice was invalid. Having chosen to address the merits through the ongoing consultation, it was too late to invalidate the final decision on that technical ground.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2009] EWCA Civ 1361 . The court upheld the rejection of the procedural unfairness challenge, although it held that the purported regulation 12(1) notice was invalid.
2. Administrative Court: Collins J dismissed the application for judicial review in [2009] EWHC 1422 (Admin) , holding that the consultation was fair and the notice complied with regulation 12.