City of Westminster, R (On the Application Of) v Transport For London (TfL)

On an application for judicial review, permission should be granted where the proposed grounds cross the threshold of arguability. For interim relief against a public body, the court applies a modified Cyanamid approach. The claimant must show at least a real prospect of success at trial, not merely an arguable case. The public interest in the defendant’s functions is a significant factor.

The balance of convenience must be assessed as a whole. Irreversible or non-compensable harm, and the risk that the review would lose its purpose, may outweigh generic claims of financial or operational disruption. Where loss caused by an injunction can be compensated, a cross-undertaking in damages will ordinarily be required.

Westminster City Council sought permission to challenge Transport for London’s decision authorising expenditure and progress on parts of Cycle Superhighway 11. The Council argued that TfL had failed to take account of unresolved traffic-modelling issues, the possibility that the scheme would proceed only in part, and the cost-benefit position of the Swiss Cottage section.

The Council also sought an interim injunction preventing work from beginning before the substantive claim. The court had to decide whether the grounds were arguable and, if so, whether interim relief was justified pending an expedited judicial review hearing.

1. Permission. The proposed grounds crossed the threshold of arguability. The court did not determine the merits of the disputed factual or policy issues. It proceeded on the basis that TfL had not refuted, in relevant detail, the factual allegations for the limited purpose of the permission application.
2. Interim relief. Applying the modified Cyanamid approach described in R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin), the court required a real prospect of success at trial, rather than mere arguability. That threshold was met. The public-interest character of TfL’s functions was given significant weight.
3. Balance of convenience. If work proceeded, the Swiss Cottage section might become a permanent standalone feature before the challenge was decided, potentially causing non-compensable loss of amenity and depriving the review of part of its purpose. TfL’s asserted financial and operational losses were capable of compensation. Its additional disruption arguments were presented only in generic terms and did not attract material weight.
4. Order. The injunction was justified provided Westminster gave a cross-undertaking in damages. Applying FSA v Sinaloa Gold Plc [2013] 2 AC 28, there was no basis for dispensing with that undertaking. Permission was granted, an interim injunction was ordered until judgment, and the substantive hearing was fixed for 6 September.

First-instance application in the Administrative Court. The judgment itself does not state any later appellate decision.