England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Pelling QC
[2012] EWHC 3824 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/09/2013

Lord Justice Rimer :

1. This is a renewed application for permission to appeal. The applicant, Didier Vuvamu, is the claimant in judicial review proceedings against The Secretary of State for Transport. His claim relates to the administration of the provisions of the Road Traffic (New Drivers) Act 1995 ('the 1995 Act'), which is the responsibility of the Driver and Vehicle Licensing Agency ('DVLA'). His claim form, issued on 31 January 2012, seeks a mandatory order requiring the DVLA to 'restore my driving licence in their records to the status of that of a full licence holder'.
2. His Honour Judge Pelling QC, by an order made on the papers on 6 June 2012, refused the applicant permission to apply for judicial review, and did so on three grounds: (i) the applicant had no realistic prospect of showing that the DVLA had not, as it had been entitled to do, served notice revoking his driving licence; (i) even if he could show that, it was still open to the DVLA to serve a revocation notice, so that the application was at best of academic interest; and (iii) the application was made more than two years after the applicant had learnt of the grounds on which he relied and there was no arguable case for an extension of time.
3. The applicant renewed his permission application at an oral hearing, which on 2 August 2012 also came before Judge Pelling. The applicant appeared in person and counsel represented the respondent. For the reasons given in an extempore oral judgment, Judge Pelling endorsed his earlier refusal of permission, ordered the applicant to pay the respondent's costs assessed at £513 and refused permission to appeal. I record that the applicant asserted in the index to the bundle before me that 'permission to appeal has been verbally allowed by [the judge]', but he is, with respect, obviously mistaken about that. The judge's order expressly records the refusal of permission, in line with what he said in the post-judgment exchange as recorded in the transcript. Having refused permission the judge said to the applicant that 'You may apply for permission to appeal, but you must apply to the Court of Appeal in London'. It may be that it is that remark that the applicant has misconstrued as the giving of a 'verbal' permission to appeal.
4. The applicant thereafter filed an appellant's notice on 3 October 2012. That was some seven weeks out of time, and in section 8 of his appellant's notice, in which the applicant sought an extension of time, he explained his delay as being because he had not received any written reasons for the refusal of his application, he could not afford to apply for a transcript and that it was only on 23 August 2012 that he learnt that he would be eligible for a fee remission if he were to apply for a transcript. Those reasons are, with respect, unimpressive. The applicant had heard Judge Pelling's oral judgment delivered on 2 August 2012 giving his reasons for his order refusing permission, the time for appealing ran from then, and he was not entitled to await the provision of a transcript before filing an appellant's notice. Like many litigants in person, the applicant appears to have proceeded on the basis that he is entitled to ignore procedural time limits. He was wrong. The rules as to the time for the filing of appellant's notices apply as much to litigants in person as to those represented by lawyers.
5. Rafferty LJ, on the papers on 24 May 2013, refused permission to appeal. She said that Judge Pelling had correctly analysed the law and had clearly explained it to the applicant. Predictably, the applicant did not accept her decision either and he renewed his application at an oral hearing before me. He was disadvantaged in doing so by the fact that he has less than a completely fluent command of English but he explained his case by reading from a ten-page typed document that he had helpfully prepared, an exercise which occupied most of the 45 minutes that I allowed him for the hearing as compared with the 30 minutes usually allocated for such applications.
6. Judge Pelling explained the facts in his judgment. The applicant passed his driving test on 25 July 2005 and received a full driving licence. On 9 August 2007, he was convicted by Rochdale Magistrates Court of an offence committed on 26 April 2007 of driving without insurance. A financial penalty was imposed and the court directed that his licence should be endorsed with six penalty points. The applicant surrendered to the court his licence and counterpart so that the points could be endorsed on the latter.
7. As the offence was committed within two years of the passing by the applicant of his driving test, it was committed during the 'probationary period' specified in section 1 of the 1995 Act. Section 2(2) of that Act required the court, as it did, to send the DVLA a notice containing the particulars required to be endorsed on the counterpart and also the licence and counterpart themselves; and section 3 of the Act required the DVLA to serve a notice on the applicant revoking his licence. By section 3(2), such revocation takes effect 'from a date specified in the notice of revocation which may not be earlier than the date of service of that notice'. In order to re-obtain a full licence, it is necessary first to re-pass the relevant driving test (section 4).
8. The DVLA claims that it wrote to the applicant on 13 August 2007 revoking his licence and asking for its return (although I am not clear why it should have done the latter, since the magistrates court had sent it to them) and claims that the licence was revoked within five days of the date of the letter, namely 18 August 2007. The DVLA also claims that, not having received the licence, it wrote to the applicant again on 10 September 2007. The applicant denies having received either letter and asserts that on 27 August 2007 the DVLA returned to him his licence (which at least twice he refers to in the papers as a 'new' licence) together with the counterpart, the latter having been endorsed with the six penalty points. Judge Pelling proceeded on the assumption that that the applicant had an arguable case that his factual assertions in this respect were correct. It is relevant to note that the combined effect of section 9(4) of the 1995 Act, section 107 of the Road Traffic Act 1998 and section 7 of the Interpretation Act 1978 is that the service of any revocation notice sent by the DVLA was 'deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post'.
9. The story moved on to July 2009, when the applicant moved to Wirral and sent his licence to the DVLA for change of address purposes. The DVLA retained it, since it was treating his licence as having been revoked in 2007, and it treated its return as an application for the issue of a provisional driving licence. In October 2009, the applicant entered into correspondence with the DVLA requesting either the return, or the re-issue, of his licence (I do not have copies of his letters written at this time). On 17 November 2009, the DVLA wrote to him in reply to his letter of 29 October 2009 explaining that, following his conviction on 9 August 2007 and in view of the provisions of the 1995 Act, his full licence had been revoked and it referred to the sending to the applicant of the letter of 13 August 2007 and of a reminder letter a month later. That letter made it clear to the applicant, if it had not been clear before, that the DVLA was claiming to have revoked his licence on 18 August 2007 and that his only way forward to obtaining a new full licence was by way of applying for a provisional one and re-passing the driving test.
10. On 2 February 2010, the applicant was stopped by the police and charged with the offence of driving without a valid licence. He was convicted at Wirral Magistrates Court on 4 June 2010. The applicant claims, and the judge assumed him to be correct, that his appeal to the Liverpool Crown Court against the conviction was allowed and the conviction quashed on 18 November 2010. The respondent's skeleton argument before the judge asserted that the respondent had no knowledge of the quashing of the conviction.
11. The applicant then engaged the assistance of Haworth & Gallagher, solicitors. On 5 January 2011, they wrote to the DVLA asserting that the quashing of the conviction was based on the finding that the applicant's licence had not been revoked by the DVLA. They asked the DVLA to amend its records so as to indicate that the applicant's licence had not been revoked. I do not have a copy of any reply to that letter. Haworth & Gallagher wrote further to the DVLA on 13 June 2011 (I do not have a copy of that either), but I do have copy of the DVLA's reply of 5 July 2011 in which it explained that:

'The letters advising drivers of the revocation of their driving licences are "one-off" computer generated letters. As such I am unable to provide you with copies of the letters. Neither am I able to provide evidence that they were sent to [the applicant] since they would have been sent by normal (unregistered) mail.'

12. On 23 September 2011, Haworth & Gallagher wrote to the DVLA, referring to their previous correspondence. The letter made the point that no notice of revocation of his licence had been sent to the applicant and that therefore his licence had not been revoked. They referred to the DVLA's stance (expressed in a letter which I do not have) that the applicant's 'licence is that of a revoked driver' and repeated their request that 'the status of his licence be reinstated to that of a fully licensed driver'. They gave notice that if his licence was not restored to him within 14 days, he would commence judicial review proceedings, the challenged decision being the decision 'not to return him to the status of a full driving licence holder'. The DVLA's response, on 7 October 2011, received by Haworth & Gallagher on 17 October 2011, was that it had nothing to add to its previous correspondence. The applicant's judicial review claim was issued on 31 January 2012, which was approximately three and a half months after such receipt.
13. The applicant's point in his claim is that the DVLA has never revoked his licence by giving him the requisite notice and that its issue to him in 2007 of his licence endorsed with the six penalty points (and in reliance upon which he drove for some years afterwards) was inconsistent with any notion that his licence had been revoked. As I follow it, he is asking for an order that the licence he sent to the DVLA in 2009 be returned to him and/or that the DVLA's records be corrected so as to show him as holding a full licence.
14. Judge Pelling recorded that the applicant placed heavy reliance on the quashing in November 2010 of his conviction for driving without a valid licence. His point was presumably that such conviction was consistent only with a conclusion that he had a valid licence. The judge, however, correctly noted that the burden of proof in the criminal prosecution was different and noted also that the material the applicant had put before him did not disclose that any evidence was adduced on the appeal with a view to demonstrating that the licence had been revoked in the way in which the DVLA was asserting that it had been in the instant proceedings. The judge did not, therefore, regard the outcome of the 2010 criminal proceedings as of material relevance. In that respect, the judge was in my view obviously right. The quashing of the applicant's criminal conviction plainly did not amount to any sort of in rem declaration that the applicant had, and had always had and/or was entitled to, a full driving licence.
15. That being so, the judge regarded the applicant's case as difficult. If, as the DVLA asserted, the applicant's licence had been revoked in 2007, that was the end of the case since, subject to the provisions of section 4 of the 1995 Act, there is an absolute prohibition on the grant of a full licence to someone whose licence has been so revoked. The question, therefore, was whether the applicant's licence had been revoked. The judge was satisfied that it had. He had earlier referred to a letter from the DVLA to the applicant dated 11 February 2010 explaining that following the applicant's conviction on 9 August 2007 the DVLA had sent the applicant the two letters referred to in paragraph 8 above; and the judge also explained how, because of the way in which the DVLA computer processors operate, no copy of either letter was available to DVLA, although in paragraph 18 of his judgment he set out the contents of the standard form letter that would have been sent to the applicant giving notice of the revocation of his full licence. Even though the applicant may not have received the letters, the judge was satisfied that an automatically generated notice was sent to him and that, by reason of the provisions also referred to in paragraph 8 above, service of the notice would be deemed to have occurred. As the applicant's licence had been revoked, the issue to him of a new licence was beyond the statutory powers of the DVLA and so any licence in fact issued to him was issued erroneously and unlawfully. The issue of such a licence might have provided the applicant with a defence to a charge of driving without a valid licence if he had honestly believed the licence issued to him to be a valid one. But it would not detract from the DVLA's obligation to revoke his licence, or undermine the effectiveness of its revocation decision.
16. For my part, whilst I would not regard it as arguable that no revocation notice was posted to the applicant on 13 August 2007, I have respectful reservations as to whether the judge was also right that it is unarguable that such notice was not also served on him; and service of the notice is required in order to effect the revocation. The judge stated that he was prepared to assume that the applicant was correct in saying that he never received the letter of 13 August 2007. As it seems to me, it is arguable that the judge was therefore assuming facts that amounted to proof of the 'contrary' for the purposes of section 7 of the Interpretation Act 1978 (i.e. that the letter was not delivered in the ordinary course of post).
17. If so, it may follow that it is arguable that there was no revocation of the applicant's licence in August 2007. But for three reasons, all of which were advanced by the respondent in opposition to the applicant's claim, I would anyway endorse the judge's view that this was not a case for the giving of permission for judicial review and that there is no real prospect of the Court of Appeal holding otherwise on an appeal to the full court.
18. First, if by reason of any failure of service of the revocation notice the applicant's licence was not revoked in August 2007, the DVLA remained and remains under a continuing obligation to revoke it under section 3 of the 1995 Act, because section 3(1) makes it plain that revocation is mandatory. It follows, therefore, that even if the applicant is able, on the facts, to make good his case that his licence was not revoked in August 2007, it will do him no good since any such finding would lead inevitably to a fresh exercise of revocation by the DVLA. The return to the applicant, as he claims, of his licence on 27 August 2007 was not an act that can have resulted in the applicant being exempt from the provisions of the 1995 Act. On the contrary, it is in the public interest that no-one should be so exempt.
19. Secondly, the applicant's application for judicial review is hopelessly stale. He purports to base his claim on the DVLA's decision of 7 October 2011. Even if that was the, or a, relevant decision, the applicant still did not issue his judicial review application for over three months, and even then he did not serve it until more than two months later. CPR Part 54.5 provides that a judicial review claim form must be filed 'promptly' and 'in any event not later than 3 months after the grounds to make the claim first arose'. The applicant complied with neither limb of that provision. In any event, it is unreal to regard the letter of 7 October 2011 as the relevant event that grounded his claim. He had known since, at the latest, November 2009 that the DVLA was claiming that it had revoked his licence in August 2007, and if he wished to challenge its decision so to claim, he should have brought his claim promptly after that. Judicial review is a discretionary remedy which is required to be sought with considerable promptness, whereas the applicant made no attempt to do so. There is no real prospect of the Court of Appeal, were he to be given permission to appeal, giving him permission to make such a stale claim.
20. Thirdly, the applicant was not only seriously late in applying for judicial review, he was also seriously late in filing his appellant's notice against the judge's adverse decision: his notice was filed some seven weeks late. He has produced no sufficient explanation for such lateness. In my judgment, given the combined features of the lack of merit in his claim, its manifest staleness and the absence of any sufficient explanation for the lateness in the filing of the appellant's notice, there is no justification for granting any extension of time to the applicant for the filing of his appellant's notice.
21. I refuse to extend the applicant's time for the filing of his appellant's notice and I also refuse him permission to appeal.