The claimant appealed against rejection of its challenge to the respondent’s decision on charging structures for the use by airline of Gatwick airport, and in particular the alleged lack of adequate consultation by the respondent. After its own stated deadline for accepting representations from any party had passed, the defendant obtained and took into account material evidence from BAA explaining their underlying calculations for additional security costs. The defendant did not inform the airlines about this material, nor was there any opportunity to scrutinize or comment upon it.
Held: The appeal failed. The airlines had played a full part in the consultation process prior to the identified deadline. The process was not unfair and indeed the airlines were content for the defendant to complete the final stage of the process without any further input during which period further submissions were received upon which they did not comment.
Maurice Kay LJ said: ‘what fairness demands is dependent on the context of the decision.
The decision in the present case does not impact on personal liberty, a person’s home, the use which a property owner may make of his property or the right to conduct a business. Its context is the regulation by a statutory body of one aspect of the process charged by a private monopoly supplier to its customers . . the ultimate issue is not the provision or non provision of a service. It is simply the charge that may be levied by the airports per passenger
This puts the decision of the CAA at the ‘soft’ end of the spectrum . . fairness should reflect the context as I have described it. It is for this reason that I reject Mr Bear’s submission that the present case is on all fours with Eisai where the regulatory decision was effectively as to whether or not the company should be enabled to market their drug within the NHS. I see that as a significantly more intrusive decision which is more likely to attract a higher level of procedural fairness . .’
Judges:
Dyson, Maurice Kay, Rimer LJJ
Citations:
[2009] EWCA Civ 1361
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Easyjet Airline Company Ltd v The Civil Aviation Authority Admn 26-Jun-2009
The claimant company chalenged the methods of claculation of its contribution to security costs at Gatwick airport. . .
Distinguished – Eisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
Cited by:
Cited – Save Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts Admn 7-Mar-2013
The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed. . .
Lists of cited by and citing cases may be incomplete.
Transport, Natural Justice
Updated: 11 August 2022; Ref: scu.384119