There's no smoke without fire

However frivolous an action may at first appear, when the likes of David Pannick QC are drafted in someone is taking it very seriously.

Such was the case with a recent battle waged in the Queen's Bench Division over the rights of British Rail to ban a long-haul commuter, Peter Boddington, from smoking on a train. However, his solicitor Jeremy Maloney, of Kenwright & Lynch, based in Tooting, London, said many saw the battle being waged by the London market operator Boddington as "a bit of fun".

But with Pannick, backed by junior Francis Jones, fighting the pro-smoking corner in court, it was clear the case was not going to be as straightforward as it seemed.

After BR's smoking ban was introduced in 1993, Boddington was prosecuted for lighting up on a train. Last July a Brighton stipendiary magistrate fined him £10 and ordered that he pay £100 costs.

It would have been easy for the action to end there. But Boddington continued his challenge to the legality of BR's actions, regardless of the cost of his high-profile legal team, and appealed to the Queen's Bench Divisional Court. Lord Justice Auld and Mrs Justice Ebsworth were unswayed by his challenge and on 5 July upheld the Brighton order.

And the case is probably not over. Boddington, 45, a non-driver who commutes from Brighton to Tooting, feels so strongly about what he views as a curtailment of his rights that he has instructed his legal team to take the matter further if possible. Moves are now afoot to head to the Court of Appeal.

Maloney said: "At one level you could regard this case as a bit of fun. Some may say it's just about someone smoking on a train and there's not much of legal significance there."

However, he said far more important and legally significant issues began to emerge when Pannick got his teeth into the subject matter.

"When you dip into it there are some quite important issues at stake," Maloney said. "One that came out strongly was that here you have a situation where a private company is effectively introducing a regulation, enforcement of which creates a criminal offence.

"I believe that point is particularly significant when you bear in mind the rail privatisation moves under way."

The other question the case raises is the use of administrative law as a defence to criminal proceedings. In the High Court this was branded as having the potential for "creating chaos", but the pro-smoking team does not agree.

Maloney said it was an important point to be probed if the case came before the Appeal Court. "There are deeper issues involved in this case than appear at first sight. It does not stop at the rights of British Rail to ban smoking on their trains," he said.