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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Birmingham & Solihull Taxi Association & Anor, R (on the application of) v Birmingham International Airport & Anor [2009] EWHC 1913 (Admin) (27 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1913.html Cite as: [2009] EWHC 1913 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMIGHAM DISTRICT REGISTRY
ADMINISTRATIVE COURT

		Birmingham Civil Justice Centre
		27/07/2009

Mr Justice Wyn Williams:

1. In these proceedings the Claimants seek judicial review of decisions made by the Defendant on 13 May 2009 and 20 May 2009. On 16 June 2009 His Honour Judge McKenna, sitting as a High Court Judge, ordered a "rolled-up" hearing of the claim. On the same date he ordered interim relief in favour of the Claimants.
2. On 19 June 2009 I heard the Defendant's application to discharge the order for interim relief granted by the learned Judge. Following a contested hearing I reserved judgment. On 23 June 2009 I handed down a written judgment which contained my reasons for discharging the order for interim relief. In that judgment I set out in some detail the factual history relating to this dispute as I then understood it. For ease of reference much of the factual history is repeated; however, it is necessary to set out some aspects of the facts in more detail for reasons which will become obvious.
3. The First Claimant is a company limited by guarantee. It operates as a non-profit making association to promote the well-being of owners and drivers of hackney carriages within the Birmingham and Solihull areas. All its members are licensed hackney drivers and the First Claimant represents the interests of those drivers in a variety of ways. The First Claimant is funded by annual subscriptions from its members although I do not understand the subscriptions to be its only source of revenue. At least prior to the commencement of this dispute, the First Claimant had about 900 members of whom approximately 450 had a direct interest in this dispute. Since about 1999 members of the First Claimant have provided taxi services to users of the Birmingham International Airport. The Second Claimant is a hackney carriage driver, a member of the First Claimant and a driver who provides taxi services to users of the airport.
4. The Defendant operates Birmingham International Airport. The airport first opened in 1939. At its inception it was owned by Birmingham City Council. In 1974, presumably as a consequence of local government re-organisation, the ownership of the airport was transferred to the West Midlands Metropolitan County Council. That Council incorporated the seven West Midlands metropolitan areas, namely, Birmingham, Coventry, Dudley, Sandwell, Solihull, Walsall and Wolverhampton. In 1986, ownership passed to a newly formed West Midlands District Joint Airport Committee; this comprised the seven district councils for the metropolitan areas set out above. On 1 April 1987, a company known as Birmingham International Airport Limited (the Defendant) became the owner of the airport. It is accepted that this company was a "public airport company" as defined in section 16(1) of the Airports Act 1986. The shares in the company were owned by the seven local authorities mentioned above. In 1997, the local authorities ceased to own the whole of the shareholding; they became, between them owners, of less than 50% of the shares. At that point the Defendant ceased to be a "public airport company." It is common ground that the Defendant is not a public airport company within section 16(1) of the Airports Act 1986 at the present time.
5. On 4 October 2004 the Defendant entered into a written agreement with the First Claimant (hereinafter referred to as "the licence agreement.") whereby it agreed to grant to the First Claimant an exclusive licence to provide hackney carriage services for members of the public who were users of the airport. The First Claimant and Defendant agreed that the licence would subsist for a period of five years commencing 1 March 2004.
6. The licence agreement contained many detailed provisions. Clause 12 contained a number of provisions relating to termination of the licence. Those relevant to this dispute were as follows:-

"12. Termination and Compliance Provisions

12.1 In the event of a breach of this Licence by the Licensee the Licensor may serve on the Licensee written notice specifying the breach, the action to be taken to remedy the breach and the reasonable period in which such breach can be remedied (being not more than 30 days) and if the Licensee shall fail to comply with such notice within the period of the notice the Licensor may terminate the Licence on not than less 7 days written notice served on the Licensee.

12.2 ……………..

12.3 In addition to the powers of termination contained elsewhere in this Licence the Licensor will entitled to terminate the Licence on any of the following grounds:-

…………….

12.3.6 Without prejudice to any other provision of this agreement that there has in the Licensor's absolute opinion been a substantial deterioration in the financial circumstances of the Licensee.

16. Entire Agreement

16.1 This Licence sets forth the entire agreement between the parties with respect to the subject matter herein and supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements whether oral or written between the parties. Provided that this shall not exclude any liability which either party would otherwise have to the other in respect of any statement made fraudulently prior to the date of this Licence.

18. Nature of Rights

18.1 The rights and remedies provided by this Licence are and shall be cumulative and not exclude any rights or remedies provided by law"

It is also worth noting that the powers of termination conferred upon the Defendant by clauses 12.3.1 to 12.3.3 all relate to the financial standing of the First Claimant.

7. It is common ground that the licence agreement subsisted for the full period of 5 years from 1 March 2004.
8. In June 2008 the Defendant began a tender process relating to the grant of a new licence to provide hackney carriage services from 1 March 2009. A number of taxi providers expressed an interest. On 23 July 2008 the Defendant wrote to those who had expressed an interest inviting them to submit a tender. The First Claimant was one of those who submitted a tender. A company under the same ownership as the Interested Party (Passenger Transport Solutions Limited) was another. On 9 January 2009 the Defendant wrote to the First Claimant in the following terms:-

"Following our invitation for BASTA to tender for the renewal of the above Licence, which as you were aware was due to expire on the 28 February 2009, we are pleased to announce that subject to contract your tender submission has been successful.

The tender process was, as you can imagine, very competitive with eleven companies initially expressing an interest to operate for taxi services at Birmingham International Airport. Subsequently seven companies were invited to tender and thereafter five companies were short listed to present their proposals to us. The tenders provided not only a choice of Hackney Carriage operators but also very strong interest from the Private Hire and taxi management sectors. Each tender was judged not only on their financial offer to Birmingham International Airport to operate the Licence for taxi services but also importantly on the levels of customer service which would be provided to our passengers which your suggestion of a Customer Service Desk within the main terminal building was a contributing factor in our decision.

We are currently now in the process in drafting the new Licence to Operate for taxi services at Birmingham International Airport which will be forwarded to you for signature in due course."

9. Mr. Roop Johal, the Defendant's Market Development Manager (Marketing) says that on 9 January 2009 a meeting took place between representatives of the First Claimant and the Defendant to discuss the likely terms of the licence and operational matters. I have no reason to doubt what he says.
10. At or about the end of January 2009 a draft licence agreement was provided by the Defendant to the First Claimant. As was to be expected, the First Claimant wished to negotiate in relation to some of the terms contained within the draft.
11. I am satisfied that a meeting took place on 4 February 2009 between representatives of the First Claimant and Defendant. The chairman of the First Claimant, Mr Irfaan Ahmed, has made a witness statement in which he describes what occurred at the meeting. The two representatives of the Defendant who were present were Mr Richard Gill, its head of market development and Mr. Johal. Minutes of what was said were produced by Mr. Johal. They do not purport to be to be a verbatim account. Nonetheless, no one has suggested that the minutes are not an accurate summary of what was discussed. In the main, operational issues were discussed. However, the minutes specifically record that Mr. Gill made it clear that the Defendant was expecting that the licence would be returned with proposed amendments in a short timescale. The minutes do not record that a discussion took place about the First Claimant's financial status.
12. Another meeting took place between representatives of the First Claimant and the Defendant on 24 February 2009. Minutes of that meeting were taken and, again, no point has been made (at least of any substance) about their accuracy. A number of issues were discussed. One of those issues was apparent discontent amongst some of the First Claimant's members about the increase in membership fees which were proposed by the First Claimant. Mr. Gill asked that the licence be concluded as soon as possible. The First Claimant's representatives responded that the same was still under review.
13. On 25 March 2009 Mr. Halim, the First Claimant's Company Secretary sent an email to Mr. Johal in which he informed him that the First Claimant had filed its accounts for the year ending 2007 at Companies House. The accounts were prepared by professional auditors. As is common practice the accounts contained a section entitled "Auditors' Report to the Members". At the end of that section the following passage appeared:-

"Emphasis of matter – going concern

In forming our opinion, which is not qualified, we have considered the adequacy of the disclosure made in note 1 to the financial statements, concerning the company's ability to continue as a going concern.

The company incurred a net loss of £289,952 during the year ended 31 December 2007. The directors have expressed the view that losses have continued into 2008. These conditions, along with other matters explained in note 1 to the financial statements, indicate the existence of a material uncertainty, which may cast significant doubt about the company's ability to continue as a going concern. The financial statements do not include any adjustments which would result if the company was unable to continue as a going concern."

The note referred to in the above extract was in these terms:-

"The financial statements have been prepared under the historical cost convention, and in accordance with the Financial Reporting Standard for Smaller Entities (effective January 2007).

The financial statements have been prepared on a going concern basis. The company's ability to continue to operate depends on the continued support of its members, bankers and creditors.

Should the company be unable to continue to trade, then certain assets included in the balance sheet would require reinstatement to the amount that could be realised for them and additional costs of winding up the company would need to be included as a liability."

14. The Profit and Loss Account contained within the accounts showed the loss of £289,952 to which I have referred. That compared to a net profit for the year ending 2006 of £216,836. Note 17 to the Financial Statements drew attention to the fact that since the balance sheet date the First Claimant had continued to experience cash flow difficulties and was continuing to trade only with the support of its bankers, creditors and members. It continued:-

"Further, it is expected that the accounts for the year ended 31 December 2008 will also show a considerable loss."

15. On 8 April 2009 the First Claimant held its annual general meeting. New directors were appointed. On 23 April 2009 a meeting took place between representatives of the First Claimant and Mr Johal on behalf of the Defendant. The First Claimant was represented by Mr. Irfaan Ahmed, Mr. Mohammed Halim and a selection of newly elected Committee members. Mr Johal made minutes of the meeting after its conclusion. According to Mr Irfaan Ahmed, Mr Johal asked, specifically, when the new licence would be signed and he was told that this would occur once the new directors and/or committee of the First Claimant had discussed it in detail. That is not mentioned in the minutes. The minutes do show, however, that Mr. Johal told the First Claimant's representatives that he had become aware that cheques of the First Claimant drawn in favour of some of its members had bounced.
16. In his first witness statement on behalf of the Defendant, Mr Gill says that he saw the First Claimant's accounts for the year ending December 2007 for the first time on 8 May 2009. He does not describe the circumstances in which he came to see them. Mr Irfaan Ahmed's first witness statement dated 15 June 2009 contains no information about when the Defendant first became aware of the accounts for the year ending December 2007. At the hearing on 19 June 2009, upon instructions, Miss Clement, for the Claimants, told me that a draft of the accounts had been provided to the Defendant in February 2009. In his third witness statement dated 8 July 2009, Mr. Ahmed claims to recall putting a copy of the accounts in an envelope, addressing it to Mr. Johal and leaving it at the airport reception at the end of February. Mr. Johal denies receiving draft accounts at any time in such circumstances.
17. On 13 May 2009 a further meeting took place between representatives of the First Claimant and Mr Johal and Mr Gill. The First Claimant was represented by Mr. Halim and two other members. In his witness statement of 3 July 2009, Mr. Johal says that he was asked to arrange the meeting by Mr. Gill so that the First Claimant's recently filed accounts could be discussed. Mr. Johal also asserts that he contacted Mr. Halim to arrange the meeting. Mr. Halim accepts that he was contacted by Mr. Johal for the purpose of arranging meeting. He also accepts that he knew "from the tone of his voice that something was wrong". However, Mr. Halim asserts that he had no idea that the meeting was to discuss the First Claimant's accounts.
18. It is common ground that the First Claimant's accounts and its financial position were discussed in detail at this meeting. Minutes of the meeting were again prepared although they are described as "not completely accurate" in Mr. Halim's witness statement of 8 July 2009. Despite that assertion, however, it seems to me that the minutes are probably the best guide to what was said. They appear at page 487 of the Second Trial Bundle. There is no dispute that the First Claimant's representatives were asked to explain the loss sustained by the First Claimant in 2007. The response was that the loss was due to a particular contract entered into by the First Claimant (the radio contract). Various other points were raised about operational and financial matters. At the end of the discussion, Mr. Gill and a legal advisor left the room. A short time later (estimated as 3 to 4 minutes later by Mr. Halim) they returned to the meeting and Mr. Gill handed a letter to the representatives of the First Claimant. The letter was in the following terms:-

"Dear Irfaan

Re: Variation to the Licence to Operate between Birmingham International Airport Limited ('BIA') and Birmingham and Solihull Taxi Association ('BASTA') dated 4^th October 2004.

We refer to the standard Licence to Operate made between Birmingham International Airport Limited and Birmingham and Solihull Taxi Association dated 4^th October 2004 (hereinafter referred to as "the Licence").

As you are aware from previous discussions we have been reviewing the provision of the services. This review has led BIA to the opinion that there has been a substantial deterioration in BASTA's financial position and we hereby formally write to notify you of our intention to terminate the Licence in accordance with the provision of clause 12.3.6. Whilst clause 12.3.6 gives BIA the right to terminate on 7 days notice it has been decided that termination will take effect from Sunday 31^st May 2009.

…….. "

19. Self-evidently, this letter must have been typed in advance of the meeting.
20. According to Mr Ahmed and Mr. Halim, the first indication the First Claimant was given that the Defendant intended to terminate the licence was when it received that letter. Mr Ahmed says that the First Claimant's representatives asked for two weeks to show that its financial situation had been resolved but the Defendant refused such a request.
21. On 20 May 2009 the Defendant entered into a licence agreement with the Interested Party. The Defendant granted to the Interested Party an exclusive licence to provide taxi services at the airport and it was in similar form, at the very least, to the draft licence provided to the First Claimant. The licence was specified to commence at 00.01a.m. on 1 June 2009. As I understand it the Interested Party began providing hackney carriage services from the time and date specified in the licence agreement into which it had entered. It has continued so to do.
22. On 21 May 2009 Mr Ahmed and Mr Halim attended another meeting with Mr Gill and Mr Johal. The minutes demonstrate that quite a lengthy discussion took place. It does not appear from the minutes that Mr Gill disclosed that the Defendant had concluded a licence with the Interested Party although it is clear that Messrs Ahmed and Halim knew that the Defendant intended to award the licence to the Interested Party.
23. The Interested Party commenced providing taxi services at the airport pursuant to its licence on 1 June 2009 and it has continued to do so since that date.
24. As I have said, the First Claimant asserts that the Defendant received a copy of its draft accounts for 2007 in late February 2009. Further, its evidence seeks to persuade me that the Defendant was aware throughout the early months of 2009, at least in general terms, that the First Claimant's financial state was poor. The minutes demonstrate that Mr. Gill and Mr. Johal had some knowledge about the First Claimant's financial state but neither the minutes nor any other documentary evidence adduced on behalf of either party shows that the Defendant was aware of the financial picture painted by the accounts until Mr. Gill actually saw a set of accounts.
25. It is not straightforward in judicial review proceedings to resolve disputes of fact for obvious reasons. I am not satisfied, however, on the available evidence that the Defendant, through Mr. Gill or Mr. Johal, knew of the contents of the accounts until 8 May 2009. They positively assert that they did not receive accounts until that date. There is no evidence in opposition to that assertion which persuades me that I should reject their account. Further, the history of dealings between the parties in March and April is inconsistent with the Defendant having first hand knowledge of the contents of the accounts during that period.

The issues raised in this claim

26. The parties are in agreement about the issues which need to be determined. They are:-

1. Is the Defendant a body whose decisions are susceptible to judicial review?

2. If so, are its decisions of 13 May 2009 and 20 May 2009 susceptible to judicial review?

3. If yes, do grounds exist upon which those decisions should be judicially reviewed?

4. If so, what relief is appropriate?

27. A good deal of the oral argument related to issues 1 and 2. I am conscious, however, that there is a need for finality in these proceedings sooner rather than later. I intend, therefore, to spend the greater part of this judgment dealing with issue 3 although, somewhat briefly, I will also state my conclusions on issues 1, 2 and 4 in due course. I do so for the pragmatic reason that I can produce a judgment in a shorter time span if I adopt that course.

The Claimants' grounds for judicial review

The decisions taken on 13 May 2009

28. As Mr Goudie QC points out there were, upon analysis, two decisions taken on that date. One was a decision to terminate a licence granted by the Defendant to the First Claimant to provide taxi services at the Airport. The second decision was to the effect that the Defendant would not award a new licence to the First Claimant to provide those services. Nothing turns upon this analysis and no one has suggested to the contrary. Accordingly I will henceforth refer to the decisions in the singular.
29. In the reasoned Skeleton Argument prepared on behalf of the Claimants it is submitted that the decision was unlawful on two bases. First, it is said that the Defendant failed to consult the Claimants about the decision and/or failed to act fairly towards the Claimants in relation to the making of the decision. Second, it is said that the decision was made for an improper purpose.
30. It seems to me that I should deal with this second aspect first. If, in truth, the decision was taken for an improper purpose the issues relating to consultation and procedural fairness fade into insignificance. If, on the other hand, the Defendant took its decisions for the reason it gave in its letter of 13 May 2009 consultation and or procedural fairness must be viewed against that important factual conclusion.
31. As Mr Calver QC for the Defendant points out the Claimants have failed, at least in any formal sense, to identify the improper purpose which allegedly motivated the Defendant's decision. In his third witness statement, Mr Irfan Ahmed makes the suggestion that the Defendant terminated the licence because it did not want a strong organisation like BASTA running the airport service. In Mr Halim's witness statement of 8 July 2009 he speculates that the Defendant had decided to terminate the licence in late January/February 2009 but he does not say why that should be so.
32. This last suggestion is completely inconsistent with the minutes of the meetings which occurred on 4 February 2009 and 24 February 2009. At both of those meetings Mr Gill urged the First Claimant to sign the new licence agreement.
33. In the Skeleton Argument presented on behalf of the Claimants no specific ulterior purpose is identified. Rather, the line taken by the Claimants is that the identification of the ulterior purpose is unnecessary; all that is necessary is that the court accepts that the Defendant acted for reasons which were not its stated reasons.
34. There is one feature of the evidence adduced on behalf of the Defendant which is unsatisfactory. Mr Gilmore is the "controlling mind" of the Interested Party. In his first witness statement he clearly asserts that the Interested Party was established to provide the taxi services at Birmingham Airport. That statement carried with it the suggestion that the Interested Party was incorporated on about 20 May 2009. Thereafter Mr Gill disclosed records from Companies House which showed that the Interested Party had been incorporated on 12 February 2009. In a short statement made on 13 July 2009 Mr Gilmore sets out to explain this apparent discrepancy. All I need say is that the explanation proffered is not wholly convincing.
35. Be that as it may, it does not seem to me to be proper to ascribe an ulterior purpose to the Defendant for its decisions on 13 May 2009 simply on the basis of the lack of clarity in Mr Gilmore's evidence. I have found that the Defendant did not know of the contents of the First Claimant's accounts for the year ending December 2007 until 8 May 2009. Five days later it decided to terminate the First Claimant's licence. By far the most plausible explanation for that decision was the state of the First Claimant's finances as revealed by its accounts.
36. The suggestion that the Defendant specified a reason for terminating the licence which was not its true reason is, of course, an allegation of bad faith. A court is slow to find such an allegation proved against a company which is apparently reputable and/or against individuals who are apparently reputable. In my judgment there is simply no sound evidential base upon which such a finding could be made in this case.

Lack of consultation and procedural unfairness

37. As I indicated, it seems to me to be important that this issue is investigated against the background that the Defendant terminated the licence because, in its opinion, there had been a substantial deterioration in the financial circumstances of the First Claimant.
38. It is also important, in my judgment, that such an opinion was objectively justified. I have set out the relevant extracts from the 2007 accounts. In my judgment, those accounts, standing alone, clearly and reasonably justified a conclusion that there had been a serious deterioration in the First Claimant's financial position as between the year 2006 and the year 2007. Further the accounts made it clear that substantial losses were expected in 2008. In my judgment nothing discussed in the meeting between the parties between February 2009 and May 2009 would have been sufficient, objectively, to dispel the conclusion that the First Claimant's financial circumstances had deteriorated substantially. In these proceedings the First Claimant has disclosed a letter dated 21 January 2009 from Mr Halim to the First Claimant's members. That letter, of course, was not before the Defendant when it took its decision of 13 May 2009. However, it constitutes the clearest evidence that the Defendant's opinion formed in the days leading to 13 May 2009 was entirely justified.
39. Against this background what duty, if any, arose on the part of the Defendant to consult with the First Claimant about its financial circumstances and/or what duty arose to afford to the First Claimant the opportunity to make representations about whether or not the licence should be terminated? These are issues, in my judgment, which must be determined in the context of the particular circumstances of the case under consideration. The decision in R v Barnsley Council ex parte Hook [1976] 1 WLR 1052, (a case particularly relied upon by the Claimants) makes that clear – see, in particular, page 1061D.
40. In this case the important factual considerations are these. First, the First Claimant was a voluntary party to a detailed commercial agreement which conferred substantial benefit upon it. That agreement contained a specific power invested in the Defendant to terminate the agreement on the basis of its opinion that the First Claimant's financial circumstances had substantially deteriorated. The agreement, itself, drew a clear distinction between termination on this ground (and other grounds relating to the First Claimant's financial circumstances) and termination for breach of the agreement – see the extracts quoted in paragraph 6 above.
41. It is obvious that the provision of taxi services at the airport is important to the smooth running of the airport. It is not in the least surprising, in my judgment, that clause 12.3.6 exists. A substantial deterioration in the financial circumstances of the licensee could have very damaging effects on the provision of taxi services. In these circumstances, in my judgment, a Court should be extremely cautious about imposing public law duties upon the contracting party which have the effect of diluting or altering contractual terms freely concluded. I reach that conclusion notwithstanding clause 18.1 of the agreement which contemplates that rights might arise independently of the licence notwithstanding the provisions of clause 16.1.
42. Another way of viewing the issue is to proceed on the basis that the parties, themselves, by the terms of the licence have determined the scope of the duty to consult and act fairly.
43. Accordingly, I have considerable doubt about whether there was a duty upon the Defendant, arising by virtue of public law principles, either to consult the First Claimant about the state of its finances or to give the First Claimant an opportunity of making representations about whether or not the licence should be terminated.
44. However, as a matter of fact, it is clear to me that an opportunity was afforded to the First Claimant to make appropriate representations about the state of its financial affairs and about whether the licence should be terminated. I accept the evidence of Mr Johal that the meeting of 13 May 2009 was convened, specifically, to discuss the First Claimant's accounts and that Mr Halim knew that this was so. I also consider it very likely that Mr Halim knew that the Defendant was considering terminating the licence. On his own admission he realised that something was wrong. Finding, as I do, that he knew that the meeting was to discuss the First Claimant's accounts he would have known that the accounts showed a very substantial deterioration in the First Claimant's financial circumstances. He knew or should have known of the relevant contractual provisions. In my judgment it is verging on the incredible to suppose that Mr Halim did not realise that there was a serious possibility that the licence would be terminated.
45. I do not think it was unreasonable that the meeting was convened for the day following the request for the meeting. Indeed, Mr Halim makes no complaint about that fact.
46. The minutes of the meeting show that there was a detailed discussion of the financial circumstances of the First Claimant. The plain fact is that the minutes demonstrate that the First Claimant's representatives said nothing which began to suggest that there had not been a serious deterioration in its financial circumstances. Indeed, as it seems to me, it could not have done so since the fact of the deterioration was indisputable.
47. The minutes record Mr Halim as asking the Defendant for a trial period of one month. Such a request makes no sense unless it was predicated upon an understanding that Mr Halim knew full well that there was a real risk of termination of the agreement.
48. I accept that if a duty arose to afford the Claimants an opportunity to make representations it was necessary for the Defendant to consider those representations and take them into account before reaching a final decision. Mr Goudie QC submits that it could not have done so since its termination letter was prepared in advance of the meeting and the Defendant's representatives apparently took no more than a few minutes to decide that the letter should be delivered to Mr Halim notwithstanding his representations at the meeting.
49. I do not think it proper to draw the inference that the Defendant did not consider the First Claimant's representations conscientiously. It is important to remember the narrow ambit of the decision under consideration. The Defendant was, obviously, minded to invoke clause 12.3.6 of the licence. It was satisfied that there had been a substantial deterioration in the financial circumstances of the First Claimant. That was not a capricious view; quite the contrary, it was objectively justified. Accordingly, unless the First Claimant was able to convince the Defendant that its financial circumstances had not deteriorated substantially the Defendant was entitled to terminate the licence. In my judgment there is no evidence that Mr Halim did say or could say anything which cast doubt upon the conclusion that the First Claimant's financial circumstances had deteriorated substantially. The reality is that he could not have done so since, self-evidently, there had been a substantial deterioration.
50. On the basis of the minutes there is nothing to suggest that he said anything which, reasonably, ought to have deflected the Defendant from its view that the licence should be terminated. It does not seem to me, therefore, that there is scope for me to conclude that the Defendant did not conscientiously consider such representations as were made.
51. I have reached the clear conclusion that the Claimants have failed to establish the grounds upon which they rely for judicial review.
52. I should add for completeness that I have proceeded on the basis that the terms of the licence made in October 2004 still governed the relationship between the parties in May 2009 notwithstanding the expiry of the written agreement on 28 February 2009. That seems to me to be the most likely analysis of the true legal position and Mr Goudie QC said nothing in his submissions to me to suggest that I should take a contrary view.

The decision of 27 May 2009

53. The First Claimant submits that the Defendant acted unlawfully when it decided to conclude an agreement with the Interested Party on 20 May 2009. It submits that the Defendant should have engaged in a new tendering process prior to concluding a contract of taxi services at the airport.
54. The First Claimant's contention is that it is a breach of European Union Law for the Defendant to depart from the outcome of a tender procedure after an award has been made and then to conclude a contract with a different party without holding a fresh tender procedure. The reasoning process which leads to this submission is as follows. Articles 43 and 49 of the European Community Treaty together with general principles of EC Law, imposed upon the Defendant positive obligations of transparency and equality of treatment in respect of the awarding of contracts which do not fall within the terms of relevant procurement Directives. This principle can be deduced from the summary of the judgment of the European Court of Justice in Parking Brixen [2005] ECR I-8585. The relevant part of the summary is in the following terms:-

"Public authorities concluding public concession contracts are bound to comply with the fundamental rules of the EC Treaty, in general, Article 43 EC and 49 EC, and the principle of non-discrimination on the ground of nationality set out in Article 12 EC, which are specified expressions of the general principles of equal treatment. The principles of equal treatment and non-discrimination on ground of nationality imply, in particular, a duty of transparency which consists in ensuring for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed."

55. It is to be observed that the parties join issue about whether the Defendant is a public body for the purposes of this principle of European Law. Even assuming that it is, however, Mr Calver QC submits that there was no reason and no need under European Law to hold a fresh tender process given that a tender process had begun in the summer of 2008 and had been concluded only in January 2009. He submits that it was perfectly legitimate and lawful for the Defendant to choose an alternative party to provide taxi services from those who had tendered just a few months previously.
56. During the course of his oral submissions, Mr Goudie QC accepted that the principles of European Law did not lead, inflexibly, to the conclusion that a second tender process was inevitably required once the first tender process had been concluded. He accepted that if a tender process concluded and, very shortly thereafter, either the contract awarded pursuant to the tender process came to end (for whatever reason) or the party which was offered the contract declined to take it up it would not be necessary, to comply with the European Law principles, to organise a second tender process.
57. The tender process which ran its course in this case took from July 2008 to 9 January 2009. I dare say the tender process need not have taken so long but, inevitably, a tender process of the type envisaged by the First Claimant would take weeks at a minimum.
58. Once the Defendant decided to terminate the First Claimant's licence and finding, as I have, that such termination was justified it was obviously very important that an alternative taxi operator was chosen very quickly.
59. In the particular circumstances of this case I do not consider that the principles of European Law relied on by the First Claimant were infringed by the Defendant choosing to replace the First Claimant with one of the parties which had tendered in what was, on any view, a very recent tender process. The principles underpin the need to avoid discrimination. There is no reason to suppose that the failure to hold a tender process made the prospect of discrimination any the more likely. That has not been suggested and could not be suggested on the facts of this case.
60. I should record that at times, in his submissions, Mr Goudie QC seemed to be challenging the selection of the Interested Party. Strictly, it must be correct that the Interested Party could not meet some of the criteria for selection. Further, to be strictly accurate, of course, the Interested Party was not a party which had engaged in the tender process at all. The Interested Party only came into existence after the tender process was complete. Nonetheless, it was intimately connected with the beneficial owner of the company which did tender and, ultimately, I did not understand Mr Goudie QC to suggest that the decision to award the licence to the Interested Party could be impugned by reference to the identity of the Interested Party.
61. It follows from my judgment thus far, therefore, that the various challenges made by the Claimants to the decisions of the Defendant must fail.
62. For the sake of completeness, I turn to deal with the strictly legal issues which were canvassed before me. As I said earlier in this judgment, I propose to deal with these issues quite shortly.

Is the Defendant amenable to judicial review?

63. I am not prepared to conclude that the Defendant could never be amenable to judicial review. On any view, many of the functions which it performs are public functions. Many of its decisions have a direct impact on significant numbers of the public at large. In judging whether or not the Defendant is amenable to judicial review, its creation, evolution and current ownership seem to me to be relevant considerations in so far as they point to whether it can exercise functions which are public or make decisions which affect substantial members of the public. To repeat, I have been persuaded that the Defendant is a body which is amenable to judicial review. That does not mean, however, that all of its decisions can be reviewed. I develop this point in the next section of my judgment.

Is the Defendant a body which has the duty to comply with principles of transparency under the EU Treaty?

64. In C-188/89 Foster v British Gas [1990] ECR 1-3313 the European Court had to consider a reference by the House of Lords upon the issue of whether the BGC (British Gas Corporation) was a body of such a type that the Appellant (an employee) was entitled in English Courts and Tribunals to rely directly upon Council Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment of men and women. The European Court concluded that a body, whatever its legal form, which had been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and had for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included among the bodies against which the provisions of a Directive capable of having direct effect may be relied upon.
65. Foster was a case about whether individuals could rely upon a Directive. It has not been suggested that any different approach should be taken to the issue of whether individuals can rely upon the Treaty itself.
66. I very much doubt whether the Defendant is a body of such a description as is set out in Foster. I do not think that it is subject to the authority or control of the State. Indeed, it is difficult to see how that can be so given that the majority of its shares are owned by private bodies wholly unconnected with either central or local Government.

Are the decisions under scrutiny in this case subject to judicial review?

67. The short answer to that is yes but subject to the principles formulated in cases such as Mercury Energy Limited v Electricity Corporation New Zealand [1994] 1 WLR 521; R (Molinaro) v Kensington & Chelsea RLBC [2002] LGR 336 and Hampshire County Council v Supportways [2006] EWCA Civ 1035. In my judgment, those authorities establish, in general, that when a public body exercises rights under a contract, apparently in conformity with the terms of the contract, its decisions so to do will be susceptible to judicial review only if an abuse of power can be established. I use the phrase "abuse of power" in the way explained by Elias J (as he then was), in Molinaro. For the avoidance of doubt, I would accept that a decision to terminate the licence enjoyed by the First Claimant for an improper motive was an abuse of power (see Hampshire County Council paragraph 38) but, as I have found such an allegation has not been made out in this case. As I have endeavoured to explain, I have considerable reservations about whether a failure to consult or to provide an opportunity to make representations could amount to an abuse of power in the context of this case for the obvious reason that the licence itself does not require such steps to be taken.

Relief

68. In the event, the issue of relief does not arise. It would not be fruitful for me to speculate about what relief, if any, would have been appropriate had my decisions on the substantive issues been different. I say that since a number of variables arise and, in any event, I did not hear full argument on the issue of relief since the parties accepted that relief could be dealt with more easily once my views on the substantive issues were known.
69. However, I should deal with the issue of permission because this is a rolled-up hearing. Since I have been persuaded that the Defendant is a body whose decisions might be susceptible to judicial review and since, on any view, the decisions under scrutiny in this case may effect the livelihood of a large number of taxi drivers it seems to me that this is a case where permission should be granted albeit that I have found that the claim must fail.