Birmingham & Solihull Taxi Association & Anor, R (on the application of) v Birmingham International Airport Ltd & Anor

A decision by a public authority may be susceptible to judicial review even where the authority acts under a commercial contract. The question is whether the circumstances disclose an abuse of power or another public law wrong. On an application for interim relief, the court must assess the apparent strength of the claim and the practical consequences of the order. A mandatory injunction is comparatively rare. Delay, inadequate notice, the absence of a cross-undertaking in damages and preservation of the pre-proceedings status quo may weigh strongly against granting or maintaining such relief.

The claimants challenged the defendant airport operator’s termination of an exclusive taxi-services licence and its grant of a replacement licence to an interested party. An interim mandatory order had been made ex parte, permitting the claimants’ drivers to continue operating at the airport. The defendant applied to discharge that order, arguing that the contractual termination was not susceptible to judicial review and, alternatively, that interim relief was inappropriate. The central issues were whether a public law challenge was arguable and whether the interim injunction should remain in force.

1. Judicial review and contractual powers. The court accepted the principle in R (Molinaro) v Kensington and Chelsea RLBC [2002] LGR 336. A public authority may be amenable to judicial review notwithstanding that it is exercising a power conferred by a commercial contract. The principle was unaffected by Hampshire County Council v Supportways Community Services Ltd [2006] EWCA Civ 1035.
2. The decisive question was whether the circumstances might establish an abuse of power or another public law wrong. The evidence suggested that the claim was weak and that such a wrong was unlikely, but the proceedings had been issued only five days earlier and it was premature to conclude that there was no realistic possibility of establishing one.
3. The challenge to the replacement licence also had to rest, if at all, on public law grounds. The second claimant was unlikely to be in a stronger position than the first claimant.
4. The interim injunction should nevertheless be discharged. The application had been made urgently despite a sixteen-day delay after termination and without giving the defendant a proper opportunity to respond. The order was mandatory, such orders are comparatively rare, and the claimants offered no undertaking in damages despite seeking to protect commercial interests.
5. The preservation of the status quo was material. Before the proceedings and the interim order, the interested party was providing exclusive taxi services at the airport. That arrangement should continue pending final resolution of the dispute. The interim injunctive relief was discharged, with discharge delayed until midnight on 23 June 2009 to permit orderly arrangements. The substantive claim remained unresolved.

His Honour Judge McKenna, sitting as a Deputy High Court Judge in the Administrative Court, granted interim relief on 17 June 2009. The defendant applied to discharge that order. The present court discharged the injunctive relief, while leaving the substantive judicial review claim unresolved.