England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Bell)

		Royal Courts of Justice Strand London WC2 Wednesday, 20th June 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal the decision of Bell J dated 27th March 2001, refusing to discharge an injunction restraining the appellant from entering the curtilage of Heathrow Airport save as a bona fide airport passenger for so long as he was prohibited from entering Heathrow Airport by the respondent. The injunction was made to prevent the appellant from touting for business to drive people from Heathrow, it having been alleged that he had been doing so at extortionate prices.
2. The matter has a long history. In October 1980 the appellant was prohibited by the respondent, in accordance with their powers under byelaws, from entering both Heathrow and Gatwick Airports. There were thereafter alleged to be persistent contraventions of the prohibition, and this led to the making of applications for injunctions against the appellant, resulting in injunctions being imposed on 18th December 1990 and 20th June 1991. At that stage the injunctions prohibited the appellant from entering Gatwick and Heathrow Airports.
3. The appellant breached the injunctions, which resulted in a suspended committal order being made on 7th September 1992 by Laws J. On 19th December 1995 a final injunction was granted by Sachs J, restraining the appellant from entering the curtilage of the airport save as a bona fide airline passenger for so long as he was prohibited from entering the airport by the claimant. There was a further episode at the end of 1997 and a committal order for 28 days was made on 3rd June 1998 by Buckley J.
4. At the beginning of 2000 the applicant applied for discharge of the injunction. It was refused. On 27th March 2001 the applicant made a further application and that was the matter that came before Bell J. The applicant claimed that he required to go there because he could then take up employment as a chauffeur driving people to the airport. He was prepared to give an undertaking or to be subject to a restriction that he would only stop at the airport to drop off his passengers and would not tout for business. The applicant raised the issue before Bell J that some touts when caught by the police were giving false names and that someone might maliciously give his name which could result in imprisonment for him, even though he had not breached the injunction.
5. On 6th April 2001, after the decision of Bell J, a Citizens Advice Bureau wrote to the respondent on the applicant's behalf, requesting that the prohibition on entering Heathrow be lifted on terms. The terms were that the applicant would not stop at the airport save to drop off passengers. The respondent refused to agree.
6. Bell J refused to discharge the injunction on the basis that (1) the byelaws are often flouted because they are only punishable by fines, whereas the injunction could result in imprisonment and was therefore more effective, and (2) the applicant's long history of flouting first the byelaws and then the injunction gave the respondent good grounds for fearing that if it was lifted he would again flout the byelaws.
7. The applicant seeks to appeal on the basis that, firstly, he has obeyed the injunction for some time now – certainly he has not been found to be responsible for any breach for over three years – secondly, that a tout might falsely give his name in order to frame him and he ran the risk of imprisonment as a result; thirdly, that he had a genuine wish to pursue a legitimate aim of being employed as a chauffeur and was prevented because he could drive people to Heathrow; fourthly, that the respondent's decision to prohibit him from the airport was a breach of Article 6 of the European Convention on Human Rights.
8. Having heard the applicant today making sensible submissions to the court, I am afraid that I have to come to the conclusion that there is no prospect of an appeal succeeding. He himself acknowledges that he does not say that Bell J was wrong in his decision, but in effect would be wanting to ask the Court of Appeal to reconsider the matter and substitute its own view for that of Bell J. I have endeavoured to explain to him that that is not the function of this court. This court does not make decisions but reviews the process by which decisions were made by another judge and concludes whether the judge could reasonably reach the conclusion that he did. I have no doubt that Bell J was entitled to reach his conclusion, and indeed the concession sensibly made by the applicant underlines that that is a proper decision. In those circumstances, it would be no kindness at all to give him permission to appeal. It would mean that there would be an appeal which he was bound to lose and with it would come a further order for costs, and the applicant has made clear the hardship suffered by him as a result of any such order.
9. The one matter that deserves some comment is that the applicant, not unreasonably, wants to know when, if he remains of good behaviour and does not breach the injunction, the injunction might be lifted. Unfortunately, as I have explained to him, that is not something upon which the court could give guidance. The respondents' attitude is that, as far as they are concerned, he should never again be allowed to set foot in the airport. That is an extreme position. If there was a prolonged period during which he did not in any way seek to flout the provisions and observed to the letter the injunction, then it is difficult to see that the court would be prepared to continue an injunction at that stage. Exactly when that time will arrive will depend on so many unknown factors that to give him an indication at this stage would be no kindness, because really there could be no guarantee in respect of it. I would not expect the court to go on indefinitely, if he was behaving himself, in being prepared to keep the injunction in place. Equally, one would have thought that there has to come a time when the airport authority must recognize that, if he has shown that he will live by the letter of the regulations and the injunction, he really ought to be allowed to take some form of employment of the sort that he presently seeks, even if restrictions are imposed upon him of the kind that are suggested. However, it is not for me to say when that is or to give guidance. I feel unable to do so. I wish that I could assist the applicant more in that regard but I am not able to do so. In those circumstances, all I can do is to refuse his application for permission to appeal. That does not help him in his major problem but does spare him an order for costs which inevitably would be wasted.
Order: Application refused.