England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(MR. RECORDER McCAHILL Q.C.)

		Royal Courts of Justice Strand London WC2 Thursday, 28th June 2001

Thursday, 28th June 2001

1. LORD JUSTICE LONGMORE:On 10th April 1999 a Vauxhall Astra car belonging to a lady called Mrs. Carmel Killian was stolen. It had the registration number C197 JUX. Mrs. Killian was away on holiday at that time, but her friend, Mr. Roy Clarke, reported the theft to the police at the Bournville Lane police station in Birmingham. He gave three numbers to the police at which he could be contacted, one of which was Mrs. Killian's own number, 0121-523-6804.
2. The car was found on the following day, 11th April, at Haunch Lane in Kings Heath. It had suffered some damage. Pursuant to an arrangement which the police had with a company called Bournville Garage Limited for dealing with cars found in these or similar circumstances, Bournville Garage took the vehicle away and kept it in their garage. That was not, however, before the police rang the number of Mrs. Killian which I have mentioned three times but got no answer. It appears that Mr. Clarke may have been in the house at the time of one of three calls at least being made. But he of course did not know that it was the police that were ringing, and it was the private number of Mrs. Killian.
3. On 12th April a telephone conversation took place between Mr. Clarke and the police, from which Mr. Clarke learned that Bournville Garage had recovered the vehicle. At some later date, Mr. Clarke asked the police to explain by what authority they had caused the removal of the vehicle by Bournville Garage and he appears to have sent to the police a letter of complaint to the effect that, despite his having left telephone numbers with the police, he had not been contacted. On 21st April, Bournville Garage sent a call-out and recovery invoice to Mrs. Killian in the sum of £105.
4. In those circumstances, on 26th April Mr. Clarke issued an application in the Birmingham County Court in his own name for the immediate return of the car. That application was originally listed for hearing on 21st May but on 26th April Bournville Garage had sent to Mrs. Killian a letter requiring payment of the sum of £105 plus £12 a day storage, adding that if they were not paid they would sell the car on the 17th May. When Mr. Clarke became aware of this, he realised that an application heard on 21st May was too late for his purposes and he persuaded the court, on or about 3rd May, that he must have an earlier hearing. That hearing was in fact fixed for 7th May, and both the named defendants, Bournville Garage Limited and the Chief Constable of West Midlands Police, agreed to that date of the hearing.
5. On 4th May Mr. Clarke issued his claim form complaining about the removal of the car or interference with it, and also an affidavit in support of his application. Because of the short notice of the hearing, there was no written evidence from either of the defendants. However, Mr. Ryley, a director of the first defendant, appeared in court and gave some oral evidence to the recorder and the police turned up with their documentation. The recorder was shown certain logs of calls being made in respect of the car to the number that Mr. Clarke had left with the police.
6. The application came on before Mr. Recorder McCahill Q.C. on 7th May. He dismissed Mr. Clarke's application for the return of the car and made a further order that proceedings were to be stayed until a small amount of costs had been paid.
7. Mr. Clarke had argued that, before the police had authority to remove or instruct a contractor to remove a car, the car had to have been abandoned. He maintained that this car was not abandoned. The relevant statute is the Road Traffic Regulation Act 1984 which provides, in section 99(1) as follows:

"The Secretary of State may by regulations make provision for the removal of vehicles which have been permitted to remain at rest--

(a) on a road in contravention of any statutory prohibition or restriction, or

(b) on a road in such a position or in such condition or in such circumstances as to cause obstruction to other persons using the road or as to be likely to cause danger to such persons, or (c) [and I interpose that this is the relevant sub-section] on a road, or any land in the open air, in such a position or in such condition or in such circumstances as to appear, to an authority empowered by the regulations to remove such vehicles, to have been abandoned without lawful authority."

8. Regulations were made pursuant to that statutory provision and those regulations are the Removal and Disposal of Vehicles Regulations 1986 (SI 1986/183). The relevant regulation for present purposes is regulation 4, which says this:

"Except as provided by regulation 7 of these Regulations, where a vehicle--

(a) is a vehicle to which regulation 3 of these Regulations applies [not this case], or

(b) having broken down on a road or on any land in the open air, appears to a constable to have been abandoned without lawful authority, or

(c) has been permitted to remain at rest on a road or on any land in the open air in such a position or in such condition or in such circumstances as to appear to a constable to have been abandoned without lawful authority,

then, subject to the provisions to sections 99 and 100 of the 1984 Act, a constable may remove or arrange for the removal of the vehicle, and, in the case of a vehicle which is on a road, he may remove it or arrange for its removal from that road to a place which is not on that or any other road, or may move it or arrange for its removal to another position on that or another road."

9. The recorder gave two reasons for dismissing Mr. Clarke's application. First of all, he said that the car had been abandoned by the thieves of the car, and thus the police had acted within section 99 and regulation 4 of the 1986 regulations. Secondly, he said that the only person who could recover the car was the owner of the car and an owner who was prepared to pay the lawful charges of the custodian of the vehicle (i.e., Bournville Garage). The true owner of course was Mrs. Killian. She would have to pay. Until that happened, then he could not make any order for the return of the vehicle.
10. Mr. Clarke sought permission to appeal out of time on the basis that the learned recorder was wrong. By the time the application came to be heard by the single Lord Justice, certainly the main (and it seems the only) point being urged by Mr. Clarke in support of his application for permission to appeal was the first part of the judge's decision, because what Aldous L.J. said in the course of his judgment was that the essential issue in question was whether the regulation had to be construed as referring to the registered owner or to somebody acting with his or her consent or whether it would include the thieves. He observed that the recorder did not refer to any authority on that point and that he had not been able to find any, and that in the present case the police knew that the vehicle had been stolen and had not been abandoned by the registered owner or, according to his own evidence, by Mr. Clarke. He further observed that if the word "abandonment" is to be given its normal meaning, then it appeared to him at least arguable that Mr. Clarke was right that before the police can remove the car they have to be satisfied that it has been abandoned without lawful authority. He found it at least arguable in those circumstances that the police constable had to come to the conclusion that that was the position as regards the registered owner, so if the vehicle was not causing an obstruction or was not objectionable in other ways covered by the legislation, regulation 4 of the 1986 regulations may not have given the police power to do what they did.
11. We have now had the benefit of full argument. Mr. Clarke has supported the material that he put before the learned Lord Justice on the permission to appeal with the skeleton argument that has been drafted by a legal adviser. He appears in person today to advance his appeal, and we have heard submissions from Mr. Samuel for the police, the first defendant Bournville Garages having played no part in the appeal.
12. The conclusions that I have come to are that the correct question is not whether the vehicle has in fact been abandoned but whether, in the wording of regulation 4, it has been left in such a position as to appear to a police constable to have been abandoned. As the learned recorder said in the course of his judgment, the scheme and purpose of the legislation is to enable swift action to be taken to remove and protect vehicles. That is a necessary and sometimes difficult and time-consuming task for the police. Here there was no evidence before the judge that it did not appear to the police constable who found the stolen car that the vehicle had been abandoned.
13. It may not be that in every case of a theft it will necessarily be right for a police constable to conclude that a vehicle has been abandoned. But before anyone can launch a claim against the police it is necessary for such a claimant to prove to the satisfaction of the court that it either did not appear to the relevant police constable that the vehicle had been abandoned or that, if it did so appear, it was unreasonable for it to have so appeared to the police constable. There was no evidence on this question before the judge and while I, for my part, would not necessarily endorse the judge's conclusion that in every case where there has been a theft it would be right to say that it will have appeared reasonable to a police constable that the vehicle has been abandoned, certainly in this case the judge had no option but to dismiss the application.
14. There is also the second ground on which the judge dismissed the application, namely that Mr. Clarke was not the owner of the car and therefore could not claim for its return. It was unclear at the time of the hearing before the judge whether that was purely a technical point which could be cured by adding the name of the owner, when she came back from holiday (if she gave permission), to the claim with a consequent potential liability for costs.
15. The reason why the judge thought it important that the claim should fail for this reason also was that he was of the view that he could not make an order for the return of the car unless the charges made by Bournville Garage were paid and, according to section 101 of the 1984 Act, those charges were only payable by the person who owned the vehicle.
16. Of course things have now moved on. We are two years after the date of the decision of the recorder. If Mrs. Killian were prepared to be added to the proceedings, one would have thought that she would have been by now. The proceedings are still only in the name of Mr. Clarke, and it seems to me, therefore, that, as the matter appeared to the judge at the time, he was correct to make that a ground of his decision and that we should uphold that ground of decision also.
17. We are told by Mr. Clarke that he does not know now where the car is. Presumably, if the charges have not been paid, the car will have been disposed of by Bournville Garages and therefore the claim made in his summons for the return of the vehicle is, as it seems to me anyway, now an academic claim.
18. So for those reasons, despite the interesting argument that we have had about the word "abandoned", on which permission to appeal was given, in my view the appeal will have to be dismissed.
19. MR. JUSTICE CARNWATH: I agree. Regulation 4(c) is directed at the perception formed by the constable when he sees the vehicle on the street. It would be wrong to adopt an over-analytical view of what is then required. As my Lord has said, the constable has to make a decision on the action necessary to deal with the matter as he sees it. The protection of those interested is that of course the police, like any public authority, must act reasonably. But here there is no basis at all for saying that what the police did was unreasonable. I agree that the appeal must fail.
ORDER: Appeal dismissed; order as to costs below to remain; appellant to pay the costs of today, assessed in the sum £2000 to include VAT. (ORDER NOT PART OF APPROVED JUDGMENT)