Association Of British Commuters Ltd , R (On the Application Of) v Secretary Of State For Transport

A public authority administering a public transport franchise may owe a public law obligation, arising from its published enforcement policy, to decide within a reasonable time whether asserted contractual breaches are excused by force majeure. The relevant standard is analogous to the Wednesbury standard: the question is whether the decision has taken longer than a reasonable decision-maker could take in the circumstances. The public sector equality duty cannot be imposed indirectly on a private franchise operator by requiring the Secretary of State to apply that duty when assessing the operator’s contractual obligations.

This was a renewed application for permission to seek judicial review after King J had refused permission. The claimant, representing users of Southern Railway services, challenged the Secretary of State’s failure to decide whether the operator’s performance failures were attributable to force majeure under the franchise agreement and whether reasonable mitigation had occurred.

The claimant also argued that the Secretary of State was subject to the public sector equality duty under section 149 of the Equality Act 2010. The central issues were whether the claims were justiciable, whether the decision had been unreasonably delayed, and whether section 149 applied to the contractual assessment.

1. Standing and justiciability. The claimant had sufficient interest for the renewed permission application. It was at least arguable that the claim sought enforcement of a separate public law obligation arising from the Secretary of State’s published policy, rather than direct enforcement or interpretation of the franchise agreement by a third party.
2. Time-related public law obligation. The policy, promulgated under section 57B of the Railways Act 1993, was intended to secure compliance with franchise agreements and would be deprived of effect if decisions on asserted breaches could be left indefinitely. It was therefore arguable that the policy implied an obligation to decide within a reasonable time.
3. The applicable standard was analogous to Wednesbury review. The question was whether the Secretary of State had taken longer than a reasonable Secretary of State could take in the circumstances. Although the process had lasted about 14 months, the rolling industrial action, the volume of information, the need to attribute particular performance failures, and the need to assess mitigation meant that no arguable case of unreasonable delay had yet been shown.
4. The imminent decision was material to the assessment. The Secretary of State was required to make the decision available to the interested party within two weeks. If that did not occur, permission would be granted on ground one; if it did occur, the case would end and permission would be refused.
5. Equality duty. When deciding whether force majeure existed and whether the operator had taken reasonable mitigation steps under the franchise agreement, the Secretary of State was exercising contractual powers, not a public function within section 149 of the Equality Act 2010. Section 149 could not be imposed indirectly on the operator through the Secretary of State’s assessment of its contractual obligations. The equality grounds were not arguable.
6. The order provided for two thirds of the claimed costs of the acknowledgment of service, subject to the conditional position concerning ground one.

1. High Court (Administrative Court): King J refused permission on the papers. On renewal, Ouseley J refused permission on the equality grounds and on the delay ground at that stage, subject to permission being granted on the delay ground if the Secretary of State failed to communicate the force majeure decision within two weeks.