Bluebird Boats Ltd, R (On the Application Of) v The Royal Parks Ltd

A public authority must exercise its discretion for proper purposes and take account of the wider public and charitable consequences of its decision. Where a decision would close a valuable public amenity for a substantial period, it is arguable that the authority acted unlawfully if it focused on a collateral negotiating dispute and failed to consider those consequences. Interim relief should not impose contractual terms which the defendant has not agreed. The court may instead expedite the substantive judicial review.

The claimant operated boating concessions in Hyde Park and Greenwich Park under a contract which expired on 10 November 2020. It sought permission to challenge The Royal Parks Limited’s refusal to grant a further interim contract or extension, relying on alleged improper purpose, failure to exercise its discretion with an open mind and irrationality.

The refusal occurred against a dispute about ownership of the Hyde Park boathouse and the proposed retendering of the concession. The claimant also sought interim relief permitting it to resume trading on the former contractual terms pending determination of the judicial review.

1. Permission. Permission to apply for judicial review was granted. The claimant had established an arguable case that the decision refusing an interim concession was unlawful.
2. Proper purpose and relevant considerations. The defendant arguably allowed the boathouse dispute to dominate its decision-making and used the refusal as a negotiating tactic. In doing so, it may have lost sight of the wider picture, including the public benefit of boating, the defendant’s charitable objectives, the amenity provided to park users, employment and the significant financial consequences of closing the facility.
3. The court stressed that a decision which would effectively close boating on the Serpentine for almost two years, including the summer season, had to be taken for proper reasons. The defendant was entitled to consider the need for a competitive tender and whether the existing contractual terms represented best value, but those matters did not remove the need to consider the wider consequences of the decision.
4. Interim relief. Interim relief was refused. The proposed order would effectively impose on the defendant a new contract on the old terms, although the existing contract had expired and the defendant was unwilling to contract on those terms. The court should not impose unagreed contractual provisions, including provisions concerning payment, use of the jetty or other concession arrangements.
5. The substantive judicial review was to be heard expeditiously. The defendant was given an opportunity to reconsider its position and determine whether commercially acceptable arrangements could permit boating to resume.

This was a first-instance application in the Administrative Court. The judgment describes urgent directions made by Ellenbogen J on 26 November 2020 and an unsuccessful application to vary those directions before Henshaw J on 30 November 2020.