London Borough of Enfield v Secretary of State for Transport

A public authority creates a legitimate expectation only where its representation is sufficiently clear and unqualified, and reliance on it is reasonable. An informal statement by an official lacking apparent authority will not ordinarily suffice, particularly during an unfinished public procurement. Wider public interests may justify departure from an expectation in a technical and policy-laden field. High-level statutory duties do not necessarily require consideration of the economic value of a particular development. The statutory test for refusing relief because the outcome would probably have been substantially the same requires a relatively high threshold and normally supporting evidence verified by a statement of truth.

The claimant challenged the defendant’s Invitation to Tender for the East Anglia Franchise. It alleged that two emails generated substantive or procedural legitimate expectations that the train service requirement would provide two trains per hour initially and four trains per hour after infrastructure works at Angel Road, later Meridian Water.

The claimant also alleged conspicuous unfairness, irrationality, failure to consider relevant matters, reliance on an irrelevant technical consideration and breach of the Public Services (Social Value) Act 2012. The defendant relied on its broad statutory discretion and section 31 of the Senior Courts Act 1981.

1. Outcome. Permission to apply for judicial review was granted because the grounds were arguable, but the application for judicial review was dismissed.
2. The two emails clearly conveyed an expectation that the Invitation to Tender was expected to require the specified service. Neither generated a legitimate expectation. The first was not sent to the claimant and there was no evidence that the sender knew it would be communicated to the claimant. The second was informal and came from an official without apparent authority or special expertise in the procurement. Reliance would not have been reasonable.
3. The claimant had not shown detrimental reliance. Its principal expenditure and development decisions pre-dated the emails, and it had not shown that it took any later step which it would otherwise have avoided.
4. Even if an expectation had arisen, the defendant would have been entitled to depart from it in view of the competing interests of railway users, limited resources and complex technical judgments. The court would have deferred to the defendant’s assessment.
5. The broad discretion under sections 23, 26(2) and 29(5) of the Railways Act 1993 did not require the defendant to treat the economic value of the proposed development as a mandatory consideration. Its transport-economic methodology was not irrational.
6. The defendant complied, by analogy, with section 1(3) of the Public Services (Social Value) Act 2012. That was a high-level target duty and did not require consideration of the value of one proposed development at each later procurement stage.
7. The defendant was not required to give the claimant a further opportunity to make representations. The claimant had participated in the public consultation, and further private engagement could compromise the fairness of that process.
8. The defendant’s reconsideration did not satisfy section 31(2A) or (3C) of the Senior Courts Act 1981, because it lacked supporting evidence with a statement of truth establishing that the outcome would probably have been substantially the same.

First-instance judicial review. Permission was granted at the rolled-up hearing, but the application for judicial review was dismissed.