Case No. CO-2850-2005

is included in the list.32.Mr Allen submitted:“Nothing could be more obvious than that the advertising of a website which is the “official” website of the illegal and purported TRNC would cause grave offence and fall to be scrutinised under the defendant’s policy” (Skeleton Argument, paragraph 86).At paragraph 43 of the same Skeleton Argument he submitted:“The central point about which all else revolves is the illegality of TRNC”.So expressed, the argument depends not upon the content or meaning of the words on the website, but upon the fact that TRNC, being a state unrecognised in international law, operated a website promoting tourism in North Cyprus, to which the advertisement referred. In oral argument, Mr Allen, put it somewhat differently. He submitted that, by referring to a “Ministry of Tourism”, TRNC was impliedly representing that it was a recognised state and that the statements including the word “Ministry” should be regarded as misrepresentations, amounting to an unjustified and misleading assertion of legality. Although the second decision letter does not supply this reason for the contentions that, “TRNC claims to exercise sovereignty over Northern Cyprus” and claims “.. to exercise sovereign power in relation to tourism in the north”, it is likely this argument forms the basis upon which those points were advanced.33.I am bound to say that these arguments appear to me to be far-fetched and misconceived. They seek to derive too much from the legal consequences of non-state recognition. International law leaves it to each state, according to its own domestic procedure, to determine the legality and existence of other states. Political entities can be regarded as being states by some states, but not by others. For example, Turkey recognises TRNC as a state. Further, non-recognition of a state in international law does not prevent a de facto administration being in existence. TRNC is the de facto administration in North Cyprus. For many years it has been the practice of HMG to recognise states, not governments or administrations. I am unable to accept that the use of the word “Ministry” amounts to an assertion by TRNC that it has received recognition by the HMG as a state and that it exercises sovereign power in relation to tourism in the north. The use of the word “Ministry” implies no more than that the administration in North Cyprus, which does exist, participates in promoting tourism by an arm of the administration called a Ministry. As a result, I accept that the website represents that TRNC, through a Ministry, exercises a measure of governmental control over tourism in the north. As a matter of fact, it does exercise such control; this is not a misrepresentation. Nor does the representation give rise to any implied assertion that its actions over the territory have been internationally recognised as the actions of the government of the state having lawful sovereignty over the territory. Further, I would pause before concluding that when a state participates in tourism, it necessarily exercises sovereign power, as opposed to engaging in commercial activity. I cannot accept that a prospective holidaymaker would read the website and understand it to have stated that TRNC has been recognised by HMG as a state having sovereign power over North Cyprus.34.I have concluded that if consideration is restricted to the advertisement itself, the relevant facts available to form the basis for the ban must be considered as limited to the combined effect of the subject matter, namely tourism in North Cyprus and the involvement of TRNC in the advertising campaign, either as the advertiser or as the promoter of the campaign or as the owner of the website to which the advertisement referred. The nature and extent of the ban 35.The decision was understood by the claimants to amount to a ban on “all advertising for North Cyprus” (Addleshaw Goddard 23rd March 2005). Contrary to Mr Allen’s submission that the terms of TfL’s response, by letter dated 13th April 2005, was driven more by the claimants’ contention than its own intentions, I am satisfied that the response reflects the position which was then held by the defendant.“TfL does not accept that its decision to ban all advertising for North Cyprus on the basis that it is likely to cause widespread or serious offence is irrational and/or wholly unreasonable.TfL has not banned all such advertising. It has decided it will not accept advertising from the proxies of a body that is in international law (and as accepted by the United Kingdom) in illegal occupation of a part of the territory of the Republic of Cyprus. It would accept advertising from the Tourist Board of the Republic of Cyprus in relation to any part of Cyprus, but not from a body which is seeking to act on behalf of an illegal government”.36.Addleshaw Goddard sought clarification on the point in a letter dated 15th April 2005, asking whether “the only advertising for North Cyprus that TfL would accept from any source would be from the Tourist Board of the Republic of Cyprus”, but it was not until oral argument developed that a departure from the apparent position was suggested. Mr Allen submitted that “there is not a total ban”, “nor should the defendant’s decision be interpreted as a total ban on advertising holidays in North Cyprus”. He stated whether, for example, an independent English-owned travel agent wishing to advertise tourism in North Cyprus would be accepted was an open question.37.If now an open question, contemporary exchanges about the decision are not clear. Mr Hendy of TfL was asked by an email dated 5th March 2005 from the London Turkish Gazette:“… Is this a total ban on all advertising for North Cyprus as a holiday destination or just from NCTB? Would you consider advertising for North Cyprus from other companies?”Mr Hendy responded by letter dated 5th April 2005 to point out that the decision was to be reconsidered, but referring to the decision as being “… to refuse to allow further advertising campaigns for holidays in Northern Cyprus”. It is not clear whether the reference to “all advertising campaigns” included all or only a campaign by TRNC. Or, for that matter, any advertising campaign in which it could be seen that TRNC was involved or connected.38.The extent of the ban received further attention when the defendant commented on the joinder of the second claimant as a party. Addleshaw Goddard replied:“You express surprise that PFTC is a claimant. Mr Hendy’s letter of 9th February at least implicitly and Mr Farmiloe’s letter of 13th April explicitly made it clear that TfL banned all advertising for North Cyprus (save that from the Tourist Board of the Republic of Cyprus). Should TfL have wished to clarify its position it would have responded to the second paragraph of our letter of 15th April. In addition it should have been clear to TfL that banning advertising by NCTC would affect others with a commercial interest in North Cyprus – see our letter of 30th March”.39.The first claimant’s joinder as a party should not have given rise to surprise. It was a contracting party to the agreement which gave rise to the November 2004 campaign. It was a party, ready and willing to enter into a contract with the defendant’s agent, Viacom, who was also ready and willing to contract with the first claimant until prevented from doing so by the ban.40.The claimants’ detailed statement of grounds contended at paragraph 30 that the defendant was under a duty to consult with travel companies operating in TRNC. This contention and subsequent correspondence led to the defendant writing to “… those United Kingdom operators listed within NCTC’s website … inviting representations upon TfL’s decision” (see Mr Hendy’s witness statement paragraph 92). The letters referred to:(1) TfL’s opinion that the advertising campaign infringed TfL’s advertising policy because “by referring to North Cyprus and by containing a link to NCTC’s website contained images/messages that relate to matters of public controversy and sensitivity” and therefore, in TfL’s opinion, infringed the policy.“The North Cyprus situation being clearly a matter of public controversy and sensitivity”.(2) TfL considering “… that it would be inappropriate to carry such advertisements taking into account the concerns highlighted within the “Travel Advice” section of the Foreign & Commonwealth Office website”.41.It is clear that the second claimant’s case for being joined depends upon whether TfL’s decision extends so as to prevent it, either from benefiting from the first claimant’s advertising of North Cyprus as a holiday destination by its inclusion on the website list, or from advertising themselves (see Addleshaw Goddard’s letter dated 24th June 2005). No argument has been advanced against the claim that its interest, in being on the website, has been affected by the ban.42.I am bound to say that if, as Mr Allen indicated, it is an open question whether any person other than the claimants could advertise, I can see no reason why the request would not be refused on the ground of TfL’s concerns over the “Travel Advice” from the FCO and/or the same reasoning which has been applied to the second claimant’s case, namely that it has to be regarded as “parasitic on the interest of TRNC” (see paragraph 56 below). The standing of the claimants 43.The first claimant was incorporated and its name registered in England in 1997. It is not unlawful in England and Wales to promote holidays in North Cyprus. The name of the company which combines the words “North Cyprus” and “Tourism” can be taken as not being “offensive” in the opinion of the Secretary of State (see section 26(a)(c) of Companies Act 1985). It is elementary that it is an independent entity existing as a matter of English law and entitled to pursue its lawful objects. Its objects as set out in its Memorandum and Articles of Association include to act as “travel agents, tour operators … advertising and publicity agents” and to “provide” all “services in connection therewith” including, as the name declares, the promotion of tourism in North Cyprus.44.The second claimant is a UK company. It has no association with the government of TRNC. It promotes holidays and tourism to North Cyprus. It is an independent commercial entity existing as a matter of English law to pursue its lawful objects which it asserts have been directly affected by the ban, both in so far as it extends to the first claimant, and extends to prevent it from advertising on its own account.45.Mr Allen submitted that:(1) the claim is not justiciable because TRNC has no right to claim justice from the courts and the claims of each of the claimants fall for the same reason;(2) it is an abuse of the process of the court for TRNC to appoint an agent for the purpose of seeking the assistance of the court; and(3) neither of the claimants has a sufficient interest to bring the claim.In truth, as he recognised, the contentions depend for their success upon the same arguments. The standing of an unrecognised state 46.A state not recognised by the United Kingdom government has no standing in the English courts (City of Berne v Bank of England (1804) 9 Ves 347). Governmental acts of an unrecognised state cannot be recognised by an English court (Luther v Sagor (1921) 1 KB 456). “Common sense and justice may combine to require the qualification of these principles in certain respects” (see Gur Corporation v Trust Bank of Africa Steyn J. [1987] 1 QB 599.605 D-E). Where the acts in question can be seen as the acts of a subordinate body set up by a sovereign state, recognised as such by HMG, the acts of the subordinate body can be recognised as lawful (see Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853).47.Mr Allen placed Steyn J’s judgment in Gur at the forefront of his submissions. He emphasised that the judge, having refused to accept the availability of an exception based on the application of the principles of agency (the Carl Zeiss route), declined to accept the efficacy of an assignment by the Government of the Republic of the Ciskei to Mr Atwell, the Director General of the Public Works Department, which had been entered into after the challenge to Ciskei’s standing, because:(1) the rule on standing is not a procedural rule, but concerned “fundamental principles of English law based on important public policy considerations” (see Gur 609F);(2) it was a device which would enable every unrecognised state to circumvent the fundamental principles of our law and, as such, would be contrary to public policy, being “a colourable device” (see Gur 609H-610A-B).48.As I see it, Mr Allen’s argument comes close to turning the Carl Zeiss agency exception on its head. In Carl Zeiss, agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. Mr Allen asserts the existence of agency between TRNC and the first claimant, an English corporate legal entity existing in English law, having the capacity to act and responsible for the lawful acts it performs, but he seeks to deny the legal validity and effect of the company’s actions simply because it acted as agent for TRNC. As for the second claimant, it is submitted that it is in no better position because it has joined in the proceedings to seek the protection of the court for the interest of TRNC and because its claim is based on a commercial relationship between it and TRNC, namely appearing on the list on the website. All this comes close to a contention that TRNC’s status in international law taints and restricts the claimants’ powers of lawful action.49.Steyn J. (Gur p. 606 C-D) summarised the basis for agency arising in Carl Zeiss:“Carl Zeiss was decided on the basis of the application of principles of agency: on the materials before the House of Lords the relevant acts were categorised as those of the U.S.S.R. rather than the G.D.R. This route was open to their Lordships because there was an executive certificate, which expressly stated, at p. 859: "up to the present date Her Majesty's Government have recognised the State and Government of the Union of Soviet Socialist Republics as de jure entitled to exercise governing authority in respect of that zone [the G.D.R.]."50.The impact of the principle of state recognition or non-recognition is that the actions of the unrecognised state are not lawful, but, where the actions in question are or can be categorised as the lawful acts of a person recognised as existing in English law, they are justiciable by the court in the right of that person. They are not tainted by illegality because the unrecognised state can be associated with the actions. I can find no support in Gur for the conclusion that the result of the first claimant having acted so as to incur legal obligations is that its acts are to be regarded as invalid in English law because TRNC, not recognised by HMG, can be associated with its actions, either by agency or otherwise. The defendant has not suggested that its contract with the first claimant, which gave rise to the November 2004 advertising, was unenforceable. Had the first claimant not paid for the advertising, I have little doubt that it would have sued on its contract.51.Mr Allen sought, by reference to Gur, to rely upon the absence of TRNC as a party to the proceedings and the impossibility of it being joined, as supporting the defendant’s claim that the action was being brought in the name of the claimants as a “colourable device” to avoid TRNC’s lack of standing. He could point to Addleshaw Goddard being solicitors to TRNC, its London representative and the first claimant when the letter before action was sent and to the first intimation of proceedings coming from TRNC. He submitted that since the first claimant seeks to advertise TRNC, acting “as agent for TRNC”, it can be in “no better position to claim justiciable rights in that regard than TRNC”. Paragraph 52 of the Skeleton Argument submits “… the use of the first claimant to commence proceedings is a transparent ruse or device to seek to do what its principal, the purported TRNC, cannot. TRNC can no more commence proceedings by acting through the first claimant as agent for the purpose of seeking the assistance of the court that it can do so itself”.52.Put, as a matter of standing and not justiciability, the first claimant’s interest, he submitted, is no greater than that of TRNC which the court could not recognise as an interest justifying these proceedings. “The sole or dominant aim of the advertisement is to point readers to the TRNC website” (paragraph 53 Skeleton Argument).53.The detail of the submission can be seen in a letter dated 23rd June 2005:“We note that in your skeleton argument your counsel assert that ‘The claim is not brought by the TRNC, through an agent or in any other capacity” (C skel paragraph 11). TfL does not accept this proposition either in fact or in law’. Whether or not it is lawful for NCTC to exist as a company in this country is beside the point, if it is acting as agent for TRNC, in this advertising campaign and this judicial review. We shall submit that there is the strongest possible basis for an inference that this is so. The facts, either in the bundle or readily accessible, make it perfectly clear that the advertising work of NCTC is undertaken to support the "Ministry of Tourism" of the "Turkish Republic of Northern Cyprus", and that it is TRNC which controls and pays for this work. It is therefore properly to be inferred that, in all material respects for this case, NCTC is the agent or proxy of TRNC.As you know we shall argue that: 1. TRNC does not have either standing or justiciable rights that the court can recognise; 2. It cannot avoid this problem through the use of agents: and 3. Both NCTC and Paradise are acting in this capacity. We shall refer the court to the following matters in support of the proposition that NCTC is an agent of TRNC. 1. The letter before action was written on behalf of TRNC, its representative Mr. Korhan, and NCTC (Bundle 1/5/149). 2. TRNC fund NCTC (Bundle 1/4/22 at para 5, C skeleton 6112).3. NCTC only make a short form return to companies house, and have no independent means of funding this litigation.4. NCTC is the representative office of Tourism Ministry of TRNC (Bundle 1/4/22 at para 5)5. There are only two shareholders of NCTC, Yalcin Vehit and Hakki Muftuzade each holding one share (Bundle 1/51/46).6. They both give their address as 29 Bedford Square, London WC1B 3EG (Bundle 1/5/45 –46). This is the address of the Office of the London Representative for TRNC (Bundle 2/12/379), which is also the address of the NCTC. 7. We know from the Bundle that Yalcin Vehlt is an Under- Secretary of the Ministry of Tourism of the TRNC (Bundle 1/5/44). 8. Hakki Muftuzade is described as the UK Representative of the TRNC see http://www.cypnet.com/ncyprus/tourism/embassies.html#uk . We shall ask for this document to be added to the bundle.9. There are only two directors of NCTC, a. One is Namik Korhan who is another London Representative of TRNC (Bundle 1/5/43, 1/5/149); and b. The other is the same Mr. Vehit. 10. The secretary of NCTC is Yilmaz Kalfaoglu (Bundle 1/5/43 .He says that he is the Tourism Coordinator of the first claimant NCTC. Whether or not that is true, he is also the Tourism Coordinator of the Ministry of Economy and Tourism of North Cyprus (see http://www.holidayinnorthcyprus.com/arrival rep.jsp). We shall ask that this document be added to the bundle. 11. The obvious purpose of the advertising campaign is to promote www.go-northcyprus.com (Bundle 1/5/124 and passim). 12. This website is explicitly stated to be the website of the Office of Tourism of the Turkish Republic of Northern Cyprus (Bundle 1/5/52). 13. NCTC carries on no independent commercial activities. 14. It is perfectly plain that the funds for purchasing advertising on TfL’s sites must come and only come from TRNC.Accordingly we invite you admit forthwith that NCTC is the agent (or proxy) of TRNC in its activities of advertising the TRNC website and tourism in the Northern Part of Cyprus. In the absence of an admission we shall ask the Court to infer as much from the above documents. If the court considers that it still needs to hear from Mr. Kalfaoglu before it is willing to draw such an inference we shall ask that it directs cross-examination of Mr. Kalfaoglu on this issue. As to The Paradise Found Travel Company Limited, it is plain that they were added as Claimants when TRNC decided not to proceed with the litigation. We have perfectly reasonably asked you to confirm to us who is paying for their part in the litigation. You have declined to do so. We shall ask the court to either infer that their part of the litigation is paid for directly or indirectly by TRNC or (on the same basis as above) to direct cross-examination of Mr. Suleyman on the question whether Paradise’s intervention in the litigation is also in this respect as an undisclosed agent of TRNC. In each case we consider that it is necessary that the court should consider such cross-examination to ensure that the rule against judicial recognition of non-recognised states is not being abused”. 54.The application for cross-examination was not pursued.55.In my judgment the submissions are misconceived for a number of reasons:(1) The first claimant has not purported to perform governmental acts on behalf of TRNC. The promotion of tourism is a commercial activity which confers benefits on the administration or government of the territory in question and the people of the territory. Governments of states recognised by HMG, indeed HMG itself, encourage, support by finance and otherwise, the activities of companies in a wide variety of commercial fields, but, merely by doing so, they do not become bound by the acts of the companies. The first claimant has engaged in commercial activity on its own behalf and has not sought to bind TRNC or render it liable for any obligation. The fact that it is funded by the government of TRNC is irrelevant. Further, it enjoys separate legal personality from its shareholders who are, in any event, not TRNC.(2) The first claimant was incorporated before this dispute arose. It has contracted with the defendant in its own name as principal. It wished to enter into a further contract, but the defendant’s decision has prevented it from doing so. It has not been appointed as agent “for the purpose of seeking the assistance of the court” on TRNC’s behalf. As the contracting party prevented from contracting further, it is obviously the party primarily affected. The facts do not approach the facts which led Steyn J. to conclude the assignment was “a colourable device”.(3) I reject the thrust of the submission, which presses for the consequences of the non-recognition of TRNC as a state, to operate so as to render non-justiciable any and all activity carried on by any legal person in or in connection with the territory of North Cyprus, on the ground that the Republic of Cyprus is sovereign in North Cyprus. I accept that the administration in the name of TRNC is illegal according to the law which the English court recognises as governing the territory, namely the law of the Republic of Cyprus. I recognise that this court cannot act so as to accord recognition to TRNC as a sovereign state, but, in according standing to the first claimant in respect of its legal rights and obligations as a corporate entity existing in English law, no recognition is accorded to TRNC. According to English law, I can see no basis for concluding that the first claimant is the agent of TRNC, which, according to English law, cannot be recognised as lawfully existing. Nor can the mutuality of interest, which I accept can be shown to exist in the first claimant being able to exploit the commercial advantages of tourism in North Cyprus and TRNC’s ability to receive revenue from tourism, operate so as to deny the first claimant access to the court in connection with its own legal rights.(4) I should add that, had it been necessary, I would have called for argument on the issue whether “common sense and justice” did not require the court to acknowledge the existence of a qualification to the principles flowing from non-recognition, for the purpose of doing justice to individuals “who were caught up in a political situation which was not of their making” (see Gur p. 605 G). The UN Secretary-General’s exhortation to the international community “to ease the plight in which Turkish Cypriot people find themselves through no fault of their own” echoes the rationale for the UK government’s approach, which is:“… whilst respecting this position [the fact of non-recognition], this does not mean that the UK government refrains from dealing with the Turkish Cypriot community. On the contrary we believe that helping the Turkish Cypriots to come out of isolation, and to raise their standards towards EU norms, will make a future settlement in Cyprus more likely” (Simon Wood: letter 3rd May 2005).It is unnecessary to do so because, in my judgment, the law is consistent with that objective being achieved. The second claimant 56.It follows that the second claimant has standing. For completeness, I should add that it has no association with TRNC, save for it being on the website, alongside travel agents from Orpington, the Isle of Wight, Salisbury and elsewhere in England, and I can see no basis for concluding that its claim is “entirely parasitic on the interest of TRNC”.