Case No. CO-2850-2005

.2.The advertisement caused the Chairman of the London Assembly of the Greater London Authority, Mr Brian Coleman, the member for Barnet and Camden, to write to Mr Peter Hendy, the Managing Director of Surface Transport of the defendant, in the following terms:“It has recently been brought to my attention that a number of London buses are now carrying an advertisement promoting holidays to North Cyprus. The advert in question being www.go-northcyprus.com .You should be aware that North Cyprus is not a country recognised by our government, or indeed any other government except for that of Turkey who have illegally occupied the territory for the past thirty years. It causes me great concern that Transport for London have taken the decision to allow such advertising to appear on their buses and request that these are withdrawn from any form of public transport immediately. Your comments regarding these advertisements and confirmation of their withdrawal would be appreciated as soon as possible.”3.The advertisement was being carried on London buses pursuant to the terms of a contract reached between the first claimant and Viacom Outdoor Limited (Viacom) acting for London Underground Ltd (a subsidiary of the defendant). At the date of the letter, namely 22nd November 2004, the contract was eight days from the date of its expiry, namely 30th November 2004. 4.Although it is not clear why Mr Coleman thought they could be withdrawn, it is clear that the defendant has power to take action in connection with advertising. In November 2004 the defendant had adopted an advertising policy. It will be necessary to refer to the terms of the policy because the decisions prompted by Mr Coleman’s letter and under challenge in these proceedings were taken in reliance upon it and section 404 of the Greater London Act 1999 (the 1999 Act). That section comes into play in the following manner. Section 155 of the 1999 Act provides, as material, that:“The Mayor may issue to Transport for London … specific directions as to the exercise of its functions.”On 16th July 2004 the Mayor issued a direction that the defendant comply with the provisions of section 404 of the 1999 Act. Section 404 (as material) provides:“(1) In exercising their functions, it shall be the duty of –(a) the Greater London Authority …(b) …(c) … to comply with the requirement in subsection (2) below.(2) The requirement is to have regard to the need –(a) to promote equality of opportunity for all persons irrespective of their race, sex, disability, age, sexual orientation or religion;(b) to eliminate unlawful discrimination; and(c) to promote good relations between persons of different racial groups, religious beliefs and sexual orientation.”5.The following provisions of the policy are particularly relevant:“7.1 Advertisements should not be approved for, or permitted to remain on display on TfL Sites/Vehicles if they:a. …b. …c. …d. Are likely to cause widespread or serious offence to members of the public or sections of the public, on account of the nature of the product or service being advertised the wording or design of the advertisement or inference contained therein;…k. Contain images or messages that relate to matters of public controversy and sensitivity”.6.Mr Hendy did not reply to Mr Coleman until after the expiry of the contract. By letter dated 9th December 2004 he informed him that the defendant did retain the right to refuse posting or to require removal of advertisements on various grounds. He stated that, to enable any request for future advertisements for North Cyprus to be considered, the defendant would consider whether it was required to insist that the bus operating companies carrying such advertisements did not do so. 7.Mr Hendy had not been aware of the particular contractual arrangements which had given rise to the advertising campaign in November 2004 nor had it, prior to Mr Coleman’s letter, given rise to comment or complaint. He understood Mr Coleman’s letter to represent the views of many of Mr Coleman’s constituents as well as Mr Coleman’s own views. Further, at the same time as he received Mr Coleman’s letter, he received a complaint from the Mayor about the advertisements “in similar terms to Mr Coleman’s letter”. The view, so far as the letter expresses it, amounts to an objection to TfL carrying advertising which promotes tourism to North Cyprus because the territory is (a) not recognised by Her Majesty’s Government (“HMG”) and (b) illegally occupied by Turkey. 8.Mr Hendy’s letter of 9th December 2004 was despatched after he had discussed matters within London buses and the legal department for the defendant and a copy was sent to Viacom. As appears from a letter dated 20th January 2005 from Viacom to Mr Hendy, discussions between them took place prior to Christmas on the subject whether Viacom could accept advertisements on behalf of the North Cyprus Tourist Board (NCTB). In the same letter Viacom refer to the “removal” of NCTB’s advertisements:“All advertising management agreements we are party to with TfL operators stipulate the conditions governing the acceptance of advertisements. Following a complaint to the Mayor’s office and at TfL’s request in December, we therefore duly removed the NCTB’s advertisements.”9.Viacom’s reference to NCTB as the advertiser is inaccurate. The campaign had been placed by North Cyprus Tourism Centre Limited (the first claimant), which was incorporated in 1997 in the United Kingdom (“UK”). Its business had previously been conducted under the name of the North Cyprus Tourist Office. It carries on its business from 29 Bedford Square, London which is also the address of the Office of the representative of the Turkish Republic of Northern Cyprus (“TRNC”).10.North Cyprus tourist organisations have been operating in London since about 1977 (see Hesperides Hotels Ltd& Another v Aegean Turkish Holidays Ltd & Another [1978] 1 QB 205). Since the early eighties extensive activities in every field of tourism promotion have been carried on at various places in major towns and cities and at various times the Greek Cypriot Tourist Office has attempted to restrain or prevent the activities.11.There is a minor conflict on the evidence as to whether the advertisements were removed before or after the expiry of the contract. It is not necessary to resolve it.12.Andrew Oldham, the Joint Managing Director of Viacom and the author of the letter dated 20th January 2005, records that NCTB had already approached Viacom with a view to placing further advertisements in 2005. His purpose in writing to Mr Hendy was to obtain permission to place “NCTB’s” 2005 campaign on the underground and the London buses. The basis of the request was that Viacom held no political stance or opinion with regard to the North Cyprus situation, although it acknowledged that the state of Northern Cyprus was not officially recognised by the government. But equally it was not prohibited under English or EU law to transact business with North Cypriot organisations or promote tourism in North Cyprus. It is clear that Mr Oldham had expressed Viacom’s view to “NCTB” and that “NCTB” had asked that, in the event of the defendant’s refusal, it would like the defendant’s reasons to be set out in writing. 13.This request for permission prompted the first decision letter dated 9th February 2005. Mr Hendy replied to Mr Oldham informing him that the defendant was not prepared to give its consent to a fresh advertising campaign by NCTB. He went on to state the reasons for the decision and agreed that they could be passed on to NCTB. The reasons were as follows:-“As you are aware, TfL has previously received complaints (via the Mayor’s office) regarding the previous NCTB advertising campaign. Having received these, TfL had a duty to consider and address the concerns outlined therein and has done so. Having considered the position carefully TfL has reached the following conclusions:-1. The NCTB advertisements will cause TfL to breach its own advertising policy as in TfL’s view they: are likely to cause widespread or serious offence to members of the public or sections of the public, on account of the nature of the product or service being advertised, the wording or design of the advert or inference contained therein; or contain images or messages that relate to matters of public controversy and sensitivity. 2. Further, under the current contractual arrangements in place with the bus operators for bus services in Greater London, TfL is entitled to seek the immediate removal of any advertisements which, in TfL’s opinion: are likely to offend the general travelling public or offend ethnic, religious or other groups on account of the nature of the product or service being advertised or design of the advertisement or inference contained in the advertisement or open to the possibility of defacement; and might adversely affect in any way the interest of any member of the TfL Group or are in any way considered inappropriate. In view of the factors set out at 1 and 2 above, TfL believes that it is fully justified in adopting its present stance in relation to the proposed NCTB advertising campaign. Whilst TfL (like Viacom) has no political stance or opinion with regard to the North Cyprus situation, it is clearly a sensitive, ethnic, political issue and a matter of some controversy. I trust that this letter provides you (and NCTB) with a sufficient explanation of the reasons behind TfL’s refusal to allow further NCTB advertising campaigns.”14.It has to be said that the letter leaves a lot to the reader to interpret. The respects in which the campaign breached the advertising policy are not stated. Whilst the “North Cyprus situation” (if taken to refer to political events since 1974) would probably be generally regarded as a “sensitive, ethnic, political issue and a matter of some controversy”, the letter does not explain why the campaign touched the “situation”.15.The publicity given to this decision generated many responses, some by way of objection and others in support. They certainly confirm the sensitive nature of the political divide between the Greek and Turkish Cypriot communities. Addleshaw Goddard, solicitors acting for the government of TRNC, wrote on 22nd March 2005 in the belief that the defendant would be reconsidering the decision at a meeting to be held on 23rd March, but they gave notice that if the decision was not revoked, they would advise TRNC on the action which it should take with a view to having the decision quashed by the court at the earliest possible moment. The defendant confirmed that the decision originally taken on 9th February 2005 was being reconsidered and that a letter dated 21st March 2005 from the Office of the London representative of TRNC had been received.16.The representative drew attention to a number of factors including:(1) A commitment of the UK government, the European Union and the United Nations to end “the isolation of Northern Cyprus and its people” and to end “the trade embargo”.(2) The expression, by a vote in the April 2004 referendum, of a desire on the part of Turkish Cypriots for the reunification of Cyprus.(3) The UN Secretary-General’s call “to ease the plight in which the Turkish Cypriot people find themselves through no fault of their own”.And alleged:(4) Perversity on the part of the defendant in yielding to the “Greek Cypriot lobby”.(5) That the ban was “discriminative and offensive” to the very large Turkish Cypriot community in London and not conducive to improving relations between the two communities.17.In advance of receiving the fresh decision, Addleshaw Goddard wrote a detailed letter before action dated 30th March 2005. It recited the reasons why it was contended the decision of the 9th February (now under review) was unlawful. It is to be noted Addleshaw Goddard were, by then, acting for “the government of The Turkish Republic of Northern Cyprus, for its London representative, Mr Namik Korhan and for The North Cyprus Tourism Centre Limited”. The letter included reference to the extensive campaigns by way of advertising in respect of holiday and travel to North Cyprus which had taken place over a number of decades and pointed out: “Much of that promotion has been by the North Cyprus Tourism Centre Limited (NCTC), a UK registered company. Tourism is a vital part of the economy of Cyprus both North and South. London is a very important market for potential travellers to North Cyprus and London Transport advertising represents a very effective means of reaching that market”.18.In addition, it was observed that the decision letter of 9th February “… appears to ban all advertising seeking to encourage people to visit Northern Cyprus”. The proposed grounds of challenge were stated:(1) Procedural unfairness.(2) Irrationality.(3) Infringement of Article 10 ECHR.The letter maintained, amongst its detailed arguments, that:(a) the decision treated advertising by North Cyprus as being a political issue favouring one side in the political dispute against the other; and(b) that it was unlawful and disproportionate in its extent “… banning all advertising for North Cyprus for an unlimited period on all tubes and buses, regardless of the identity of the person placing the advertisement and regardless of the location of the advertisement”.