Transport for London (TfL) v Griffin & Ors

Pending judicial review, legislation is presumed valid and ordinarily continues to operate according to its terms. An arguable challenge does not prevent the court granting interim relief to restrain conduct which is, on the face of the legislation, criminal. The court must weigh the arguable defence, freedom of expression, public interest, balance of convenience and risk of injustice. A civil injunction may be granted in exceptional circumstances to prevent or assist in preventing breaches of the criminal law. An advance indemnity for fines arising from anticipated criminal conduct is contrary to public policy and void, although payment after liability has arisen may be lawful. The court may also grant an interim declaration and require undertakings to address the risk of unlawful conduct.

Transport for London sought interim relief against the chairman and companies associated with a large private-hire vehicle fleet. The defendants had advised drivers that private-hire vehicles were entitled to use bus lanes marked for taxis and offered to indemnify drivers against resulting fines or liabilities.

The defendants were pursuing judicial review proceedings challenging the distinction between taxis and private-hire vehicles as contrary to EU law and irrational. Those proceedings had not yet been determined, although permission had been granted and the challenge was arguable. TfL sought an injunction restraining the defendants from causing, encouraging or assisting drivers to use the bus lanes, an interim declaration concerning the indemnity, and expedition of the judicial review.

1. Interim relief. The legislation governing the bus lanes was, on its face, valid and made it a criminal offence for a private-hire vehicle driver to use a lane marked for taxis. The defendants’ judicial-review challenge was arguable, but the existence of an arguable EU-law or domestic-law defence did not prevent interim relief. It was a factor to be weighed in deciding whether relief was just and convenient.
2. Indemnity. An indemnity covering fines or liabilities resulting from anticipated contraventions could only sensibly operate where an offence had been committed. It was therefore contrary to public policy and void. A later decision to pay a fine or reimburse a liability after it had been imposed or incurred would not, merely for that reason, be unlawful.
3. Injunction. The words “causing, encouraging or assisting” were sufficiently clear. They tracked the language of Serious Crime Act 2007 s 44 and could properly be used in the injunction. The injunction did not prevent the defendants expressing their view that the legislation was unlawful, lobbying for legislative change, or pursuing judicial review.
4. The prior conduct, including the driver notice, media campaign, video evidence and increasing contraventions, demonstrated a substantial risk that the defendants would encourage conduct potentially breaching the criminal law. Without restraint there was also a substantial risk of confusion, congestion, enforcement difficulties and diversion of public resources. Damages were inadequate and the balance of convenience favoured relief.
5. The power to grant civil relief in aid of the criminal law was exceptional, but it was not confined to cases involving repeated deliberate and flagrant breaches over a substantial period. Exceptional circumstances existed here. The judicial review should be expedited, but expedition did not remove the need for interim protection.
6. The court granted an injunction until determination of the judicial review or further order, accepted the defendants’ undertaking not to promise advance reimbursement of fines or liabilities, granted the interim declaration in clarified form, required TfL to give a cross-undertaking, and ordered expedition of the judicial review.