R (Enfield LBC) v Secretary of State for Transport

The claimant challenged the Secretary of State's Invitation to Tender (ITT) for the East Anglia Franchise (EAF) on the ground that the Train Service Requirement (TSR) failed to prescribe a minimum of 2 trains per hour initially and 4 trains per hour after infrastructure works at Angel Road / Meridian Water. The claimant relied principally on two emails (29 July and 5 August 2015) as generating a substantive or procedural legitimate expectation that 4tph would be specified, and advanced additional grounds of irrationality, failure to take into account relevant considerations (including the economic value of the Meridian Water regeneration) and conspicuous unfairness.

The court held that the emails did not create a legally enforceable legitimate expectation as to the content of the ITT because they were not representations made to the Council in circumstances in which it was reasonable to rely on them, and the Council did not establish clear detrimental reliance. The court also held that the Secretary of State had a broad statutory discretion under the Railways Act 1993 to frame the TSR, that the decision-making process was not irrational, and that duties under the Public Services (Social Value) Act 2012 were, in any event, addressed by the Department by analogy. The claim for judicial review was dismissed.

Background and parties: The claimant, London Borough of Enfield, sought judicial review of the Secretary of State for Transport's ITT for the East Anglia Franchise published 17 September 2015. The dispute focused on whether the TSR should have required 2tph initially and 4tph to stop at Angel Road / Meridian Water after the STAR infrastructure works. The claimant alleged substantive and procedural legitimate expectation, irrationality, failure to take relevant considerations into account (including the regeneration value of Meridian Water), and conspicuous unfairness. The case was heard as a rolled-up permission and substantive hearing.

• Nature of the claim / relief sought: Quashing or other relief in respect of the ITT/TSR provisions for Angel Road / Meridian Water and related mandatory relief arising from asserted legitimate expectations and public law failings.
• Procedural posture: First instance Administrative Court hearing; claimant sought urgent determination; judge decided both permission and merits and dismissed the claim.

Issues framed by the court:

• Whether the 29 July and 5 August 2015 emails generated a substantive or procedural legitimate expectation that the TSR would require 2/4tph at Angel Road / Meridian Water.
• Whether the Secretary of State took into account irrelevant considerations or failed to take into account relevant considerations, including the economic benefits of the claimed Meridian Water regeneration, when framing the TSR.
• Whether the decision was irrational or taken with conspicuous unfairness, and whether the claimant should have been given an opportunity to make further representations when the Department’s position differed from the emails.
• Whether duties under the Public Services (Social Value) Act 2012 and the Equality Act 2010 were engaged in the way alleged, and the effect of section 31 amendments to the Senior Courts Act 1981 on relief.

Court's reasoning and outcome: The court analysed the emails in context and concluded that neither email constituted an unambiguous representation to the Council on which it was reasonable to rely. The 29 July email was not addressed to the Council and there was no evidence the Department intended it as a representation to the claimant; the 5 August email, although clearer, was an informal confirmation to a third party and, given the context, the claimant could not reasonably have relied on it to its detriment. The court emphasised the wide statutory discretion conferred by the Railways Act 1993 in a technically complex field and accepted the Department’s approach of assessing options by economic modelling. The court considered the Public Services (Social Value) Act duty and concluded the Department had, by analogy, satisfied the required consideration. The claimant’s evidence of detrimental reliance lacked sufficient precise dates and sums to establish that action was taken in reliance on the emails that would not otherwise have been taken. The court declined to refuse permission on section 31 grounds because the defendant had not produced contemporaneous sworn material demonstrating it was "highly likely" the outcome would not have been substantially different. The application for judicial review was dismissed.

Other points: The judge noted that the Department subsequently carried out further analysis and reconsideration of the TSR but held that this did not alter the conclusion on law. The judgment discusses the limited role of the courts when reviewing complex, technical policy choices involving competing public interests.

The claim is dismissed. The court held that the 29 July and 5 August 2015 emails did not create a legitimate expectation enforceable against the Secretary of State, the claimant did not establish reasonable detrimental reliance, and the Secretary of State had lawfully exercised his wide statutory discretion under the Railways Act 1993 in setting the TSR. The court also concluded there was no conspicuous unfairness, irrationality or failure to take relevant considerations into account and that duties under the Public Services (Social Value) Act 2012 had been addressed by analogy.