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 HIGH COURT
DIVISIONAL COURT
(LORD JUSTICE SIMON BROWN and MR JUSTICE GOLDRING)

		Royal Courts of Justice Strand London, WC2 Friday, 4 October 2002

1. Friday, 4th October 2002

1. LORD JUSTICE SCHIEMANN: Before me is an application for permission to appeal an order of the Divisional Court, dated 6th February 2002 [2002] EWHC 619 (Admin), by the Divisional Court consisting of Simon Brown LJ and Goldring J.
2. That court had before it an application by a firm called Zagato Lancia to apply for judicial review, an application which that court refused. The name of the claimant was Zagato Lancia. At the instance of the court in due course a limited company called Borkwood Engineering Ltd, which operated under the trade name of Borkwood Engineering, was ordered to be added as a second claimant. The defendant is shown as Parking Appeals Service in the court's order. The London Borough of Westminster is shown as Interested Party, but it seems it was not represented. Mr Tattersall of counsel appeared on behalf of the claimant and Ms Smith of counsel appeared on behalf of the Parking Appeals Service.
3. The order of the court was:

"1. Permission be refused; 2. Borkwood Engineering be added as a second Claimant in these proceedings; 3. The costs of the Defendant throughout the Judicial Review proceedings be on an indemnity basis... 4. Liberty to apply to the Defendant to have the Claimant's Solicitors show cause why a wasted costs order should not be made against them."

4. One can guess from the order that things had not run smoothly for the claimants, and passions (having read the transcripts of what happened) clearly were beginning to run high.
5. The application for permission to appeal was made on paper but was refused by Sir Murray Stuart-Smith for a number of reasons. The applicant renews his application in person. He seeks to displace the reasons given by Sir Murray Stuart-Smith.
6. The application was originally on a large number of grounds but Mr Tattersall has wisely perceived that the first question that has to be answered in some way is whether there are any merits in this case at all; because if the answer to that is negative then the other grounds, which relate to the conduct of the proceedings in the Divisional Court, do not arise.
7. The underlying dispute concerns a car of which a Mr Glaser was the owner and registered keeper. He was sent a penalty charge notice and was sent a notice to keeper alleging that at 13.27 on 19 May 1999 the car was infringing the City of Westminster (Waiting and Loading Restriction) Order 1976. He apparently wrote to a body called the "Notice Processing Office" that he had taken his car to a garage for repairs. The name of the garage was Borkwood Engineering. It was at 36 Chagford Street, Westminster. Mr Glaser said he had no idea whether an offence had been committed. I am told, and it seems to have been accepted throughout although the relevant order has not been produced in its totality, that Chagford Street was at all relevant times a restricted street which appeared in a schedule of the City of Westminster (Waiting and Loading Restriction) Order 1976.
8. Now Zagato Lancia is apparently a firm with its address at 36 Chagford Street which funds engineering courses at the garage. It seems that at the opening of the application for permission on 5th February 2002 no one appeared initially for the applicant, and the court was duly irritated. Eventually a Mr Gregory turned up and the court was rather perturbed as to what his precise standing was; it turned out he was neither a barrister nor a solicitor, but that he had taken this case on board without fee because he felt there was an element of public interest involved. The court was concerned and asked to have the partner involved. The partner came on the next day. At that stage counsel for the defendants did ask for the costs of the exercise, which in due course, as I have indicated, were awarded.
9. The point has been made, not before me as such but in the written submissions by Mr Gregory, that initially counsel for the defendants were not asking for costs. The court expressed its surprise and the following day, perhaps because the whole thing had blown up rather, the defendants changed their mind and did ask for costs and these were awarded. The end result of all this was that a £60 ticket has given rise to two hearings before an adjudicator over two days before a Divisional Court, a scrutiny by Sir Murray Stuart-Smith, with a view to establishing whether leave to appeal should be given, and now this hearing in front of me.
10. The point which clearly weighed with the Divisional Court was the standing of Zagato Lancia to bring the application for judicial review in the first place. On the face of it the right person to do that was Mr Glaser and it should have been done in his name, he was the only person directly affected. But there was an argument for saying that the garage, Borkwood Engineering, was affected, because its business was affected and because it had, or may have given, in effect, an indemnity to Mr Glaser to bear the costs of any costs that may be awarded against it. I have not got entirely to the bottom of that situation because the correspondence is not entirely clear, but even assuming that it was Mr Glaser who was a party to all the relevant proceedings is there an argument that those proceedings have been concluded in his favour?
11. The argument runs like this, as I understand it. Under the Westminster order it is provided that in principle it is unlawful to cause or permit a vehicle to wait in any restricted street, but there are a variety of exceptions set out in paragraph 10 of that order. The only one now alleged to be relevant is in paragraph (1)(d), which says that in effect it is not unlawful to cause or permit a vehicle to wait in a restricted street:

"while any gate or other barrier at the entrance to premises, to which the vehicle requires access ... is being opened or closed, if it is not reasonably practicable for the vehicle to wait in any other place while such gate or barrier is being opened or closed."

12. Assuming Mr Glaser had given authority to Mr Gregory to act in his name and assuming that Mr Gregory was appearing on Mr Glaser's behalf, the first place where he did so was before an adjudicator on 18th March 2000. That adjudicator found against him. The relevant legislation provides for a review. That review took place on 17th January 2001. The review is not one to which there is an automatic right, circumstances are prescribed in which a review can take place. The adjudicator looked at a variety of circumstances and came to the conclusion that the interests of justice did require such a review because there were important consequences for the conduct of the garage's business. In any event he allowed the review to take place. So far so good. However, when it came to dealing with the only point which is now substantially alive, namely the one relating to article 10.1(d), he said this:

" ... burden of proving entitlement to an exemption is on the appellant; and the Adjudicator also found that the appellant could not say whether or not the road was one of those specified in Schedule 4 to the Order to which the exemption applied, nor had he provided any evidence that any gate or barrier was being open or shut. The employee's statement that Mr Gregory sought to put in evidence was designed to address the second of these points. I would note that the appellant has done nothing to address the first point."

13. The employee's statement to which reference is there made is one dated 31 March 2000 which was, as will be appreciated, a fortnight or so after the hearing before the first adjudicator. The reviewing adjudicator who did have it in front of him in January 2001 went on to say this:

"Although this evidence did not fall within paragraph (c) of Regulation 11"

- he is there referring to the regulations which entitles a review -

"this does not mean that further evidence might not be admitted where a review is conducted under paragraph (e)."

- that was the paragraph under which he was operating.

"However, given that the Adjudicator's decision on matters of fact is generally final, new evidence will only be admitted on review if there is some compelling reason for doing so. There is no such reason in this case. I have set out above my views on the circumstances leading to the application for review under paragraph (c). The appellant had the opportunity, and should have anticipated the need, to put in this evidence at the original hearing. The fact that he did not do so was the result of a view the appellant had formed of the Council's position that was not warranted by the Council's correspondence. The appellant was in no way misled by the Council about its position, unwittingly or unwittingly. I therefore decline to admit this evidence"

14. As Mr Tattersall I think accepted at the end of the day, that is really the decision of which he complains, because without that evidence he was not in a position to get an appeal off the ground.
15. For my part I consider that the chances of persuading the Court of Appeal that this decision of the adjudicator's was beyond his jurisdiction are negligible, and in those circumstances Mr Glaser, assuming him to have been a party to these proceedings, would have had no right to take the matter further. Simon Brown LJ, delivering the judgment of the court below, pointed out that Moses J, who had initially refused the application on papers, had pointed out that the claimant had no locus, the claimant being Zagato Lancia. For my part that seems to me to be manifestly right. Simon Brown LJ went on to say that it had not been shown that the claimant had a locus in front of him. Later there was a suggestion that Borkwood Engineering had a locus. That was based, as I understood it, on some agreement, the terms of which it is not wholly clear have been fulfilled but they may have been, by Borkwood to indemnify Mr Glaser against any expense. In my judgment that in itself is unlikely to give Borkwood standing, but in any event they were not the people who were originally applying for permission.
16. I add that Simon Brown LJ also mentioned that although the notice was issued in May 1999, the application for permission to move for judicial review was not issued until April 2001. The decision challenged essentially was the decision of the second adjudicator which was in January 2001, and so more than three months had elapsed. The explanation given for that was that the transcripts were extremely slow in being delivered, although they had been asked for promptly. That appears on the papers in front of me to be true as a matter of fact, but was regarded by Simon Brown LJ as being irrelevant because it was quite unnecessary to have the transcripts in order to decide the judicial review application.
17. For my part that seems to me also to be absolutely right, and in those circumstances that provides yet a further reason for not bringing these proceedings.
18. Having heard the argument, and this now being the last opportunity of the two claimants, namely Zagato Lancia and Borkwood Engineering, to make any application for permission to appeal, this application is refused.

(Application refused; no order for costs).