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Year 1995
R v Coventry Airport & Anor ex p. Phoenix Aviation & Ors, Court of Appeal - Administrative Court, April 12, 1995, [1995] EWHC Admin 1


CO-3303-94: CO-0201-95: CO-649-95

BAILII Citation Number: [1995] EWHC QB 1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2A 2LL

Date: Wednesday 12 April 1995

B E F O R E;

LORD JUSTICE SIMON BROWN
MR JUSTICE POPPLEWELL

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B e t w e e n :

R v COVENTRY AIRPORT & ANOR
EX PARTE PHOENIX AVIATION & ORS

R v DOVER HARBOUR BOARD
EX PARTE PETER GILDER & SONS & ANOR

R v ASSOCIATED BRITISH PORTS
EX PARTE PLYMOUTH CITY COUNCIL
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Computer Aided Transcript of John Larking
Chancery House, Chancery Lane, London, WC2A 1QX
Tel: 071 404 7464 071 404 7464 Fax: 071 404 7443
Official Shorthand Writers to the Court
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SIR CHRISTOPHER PROUT QC and MISS K MCHUGH (Instructed by Beachcroft Stanleys, London, EC4A 1BN) appeared on behalf of Phoenix Aviation Ltd.
MR S ISAACS QC and MR C LEWIS (Instructed by Sharpe Pritchard, agents for Coventry City Council) appeared on behalf of Coventry Airport & Anor.
MR D PANNICK QC and MR D ANDERSON (Instructed by Mowll & Mowll, Dover CT16 1PN) appeared on behalf of Dover Harbour Board.
MR D VAUGHAN QC and MR P MOSER and MR D LLOYD-JONES (Instructed by Cole & Cole, Oxford, OX2 052) appeared on behalf of Peter Gilder & Sons.
MR R PLENDER QC and MR P DUFFY and MISS P WATSON (Instructed by Bindman & Partners, London, NW1 2SA) appeared on behalf of Compassion in World Farming
MR C HADDON-CAVE (Instructed by Solicitor for the National Farmers' Union, London, WC2E 9LY) appeared on behalf of the NFU
MR R FIELD QC and MR N GIFFIN (Instructed by R B Pearce, Legal Services, Associated British Ports) appeared for Associated British Ports.
MR R GORDON QC and MR N GREEN (Instructed by The City Solicitor, Plymouth City Council) appeared on behalf of Plymouth City Council. - - - - - - - - - -
JUDGMENT
Lord Justice SIMON BROWN:
I
Introduction
The export of live animals for slaughter is lawful. But many think it immoral. They object in particular to the shipment of live calves for rearing in veal crates, a practice banned in this country since 1990. The result is that for some months past the trade has attracted wide-spread concern and a great deal of highly publicised protest. Some of that protest is lawful; some alas is not. The precise point at which the right of public demonstration ends and the criminal offence of public nuisance begins may be difficult to detect. But not only is all violent conduct unlawful; so too is any activity which substantially inconveniences the public at large and disrupts the rights of others to go about their lawful business.

It is the actual and threatened unlawful activity of animal rights protesters which underlies these three judicial review challenges. Two are brought by those wishing to export live animals, respectively through Coventry Airport and Dover Harbour; they seek to compel the port authorities to accept their trade. The third, by contrast, is brought by Plymouth City Council against its own harbour authority in an attempt to ban the trade. It is the fear of unlawful disruption which has prompted Coventry and Dover to refuse the trade (Coventry's ban being subject to the court first lifting the injunction requiring it at present to accept the trade); and which prompts Plymouth City Council to seek a similar ban. All three authorities, let it be clear at once, expressly now disavow animal welfare considerations as any part of their motivation (although earlier it was otherwise with both Coventry and Plymouth City Councils).

The central questions raised by all three applications are these:
1.Given that their trade is lawful, what if any rights are enjoyed by animal exporters to have it accepted by the public authorities administering the respective (air and sea) ports here under consideration? Or, putting it the other way round, what, if any, discretion have the authorities to refuse it?

This question falls to be decided by reference to the respective statutory regimes under which each of these authorities operates.

2.Assuming the authorities have a discretion to refuse trade which it would be within their physical capacity to handle, can they properly refuse it so as to avoid the disruptive consequences of threatened illegality? When, if ever, can a public authority properly bar lawful activity in response to unlawful protest? How absolute is the principle that the rule of law must prevail?
3.If it be lawful under national law for these authorities to refuse this trade so as to avoid the disruptive consequences of accepting it, does such refusal nevertheless contravene European Community law?

With that brief introduction let us turn at once to indicate something of the facts of these cases. These are before the court in the greatest detail. So as not to overburden this judgment, however, the barest summaries must suffice.


II
Coventry - the facts The first applicant is an air transport company, based in Coventry, engaged in the business of transporting...
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