CO/5767/2002 
Neutral Citation Number: [2003] EWHC 1181 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 6th May 2003
 B E F O R E:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE PITCHFORD 
 
- - - - - - -

LONDON BOROUGH OF RICHMOND
(CLAIMANT)

-v- 

EXPRESS LIMITED (T/A EXPRESS DAIRIES DISTRIBUTION)
(DEFENDANT) 
  - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR A AGBAMU appeared on behalf of the CLAIMANT
MRS F CARTER appeared on behalf of the DEFENDANT
 - - - - - - -
J U D G M E N T
Tuesday, 6th May 2003
1.	MR JUSTICE PITCHFORD:  This is a prosecutor's appeal by way of case stated from decisions of the Justices sitting at Feltham.  The first respondent, Mr Mark Edwards, was a driver employed by the second respondent, Express Limited, trading as Express Dairies Distribution.  Mr Mark Edwards does not attend, nor does he appear by counsel.
2.	On Friday 19th October 2001 at 10.17 pm, Mr Edwards was driving along Harlington Road West, close to its junction with Helen Avenue, Hatton, West London.  He had made a delivery of milk to Sainbsburys store at St Clares and was en route to his depot in Victoria Road, South Ruislip.  He was taking the shortest available route along the A312 Uxbridge Road, Harlington Road West, Faggs Road, The Causeway and The Parkway northwards along the western outskirts of London.  
3.	Mr Edwards was driving a Volvo heavy goods vehicle which exceeded 18 tonnes maximum gross weight.  By the Greater London (Restriction of Goods Vehicles) Traffic Order 1985, Article 3, issued pursuant to the Road Traffic Regulation Act 1984: 
"No person shall drive or cause to permit to be driven any goods vehicle exceeding 16.5 tonnes maximum gross weight in any restricted street during the prescribed hours, including between 9 pm and midnight Monday to Friday".
4.	Harlington Road West is a restricted street within the meaning of the Order.  Article 3 is expressly subject to Article 4.  Article 4 provides that nothing in Article 3 shall apply to a goods vehicle being driven in a restricted street during the prescribed hours if a permit has been issued pursuant to Articles 5 and 6 and provided that the conditions of the permit are being complied with.
5.	Such a permit had been issued.  The prosecuting authority maintained that the conditions were not being complied with.  Thus, Mr Edwards and his employers were summoned to answer informations that Mr Edwards drove and Express Limited used the Volvo lorry in a restricted street during prescribed hours in breach of condition 5 of a permit issued under Article 5 of the Order, contrary to section 8 Road Traffic Regulation Act 1984.
6.	The hearing took place on 8th July 2002.  The Justices dismissed the case against both respondents.  The question identified for this court is: were the Justices wrong in law to decide that Express Limited and Mr Edwards had taken the shortest practicable route on restricted roads in compliance with permit condition 5, based on the evidence before them? 
7.	Condition 5 of the permit read: 
"The applicant and the driver of the vehicle shall ensure that, during the controlled period, if it be essential that the vehicle uses roads in the Permit Area, the vehicle minimises the use of restricted roads.  To this end, the applicant and driver of the vehicle shall ensure that the vehicle: 
(a) does not leave excluded roads until as near as practicable to the planned stopping place in the Permit Area; and
(b) takes the shortest practicable route from a planned stopping place either to the nearest excluded road or to the next planned stopping place if this results in the vehicle being driven a shorter distance in total on restricted roads".
8.	Excluded roads are those roads excluded from the restriction.  Sainsburys store at St Clares and the second respondent's depot at Victoria Road, South Ruislip were planned stopping places within the Permit Area.  Accordingly, it was the duty of the respondents to take a route between St Clare and South Ruislip which involved the shortest journey on restricted roads practicable.
9.	Mr Edwards' actual route would have been, if completed, 11.8 miles in length.  Had he taken the route which involved the shortest possible passage along restricted roads, his journey would have been 27.2 miles in length.  Had he taken the alternative journey proposed by the prosecutor, his journey would have been about 30.7 miles.  Thus, if the prosecutor was right, in order to comply with Article 3 of the Order, Mr Edwards would have been required to drive about 15.5 or 19 miles out of his way.  
10.	The Justices found that the stretch of restricted road which Mr Edwards could have avoided by taking either of the alternative unrestricted routes was two miles in length.  They found that to have taken an alternative route was not practicable.  Their reasons were stated as follows in paragraph 9 of their case stated: 
"This would lead to additional pollution, noise and congestion on already busy roads, which the London Borough Transport Scheme was trying to avoid.  We were of the opinion that Mr Edwards took the shortest "practicable" route to his next planned stopping place, minimising the use of restricted roads".
11.	There would seem to be sense in the Justices' conclusion, but the question for this court is whether that was a decision open to them in law.  Unfortunately, they were not assisted by two decisions of this court directly to the point, both unreported.
12.	The first was Post Office v London Borough of Richmond (case number C0/1278/93) decided on 5th May 1994 by a Divisional Court comprising Mann LJ and Laws J.  Two arguments were advanced by the appellants, the second of which was that: 
"Condition 5 was not contravened if compliance would in the circumstances be unreasonable as where a vehicle would have to make a substantial diversion in order to avoid a short length of restricted street thereby inflicting pollution by noise and vibration over a wider area".
13.	Mann LJ concluded: 
"Such diversions are undoubtedly costly to the Post Office which runs its vehicles to a timetable, but in my judgment it is not open to a court to consider whether in particular circumstances it would in effect be reasonable to condone a contravention of the terms of the condition".
14.	Mann LJ did not explicitly find that the concept of practicability excluded consideration of the proportionality of the diversion, but this appears to me implicit in the words used.  When considering whether condition 5 was sufficiently certain to be operative in law, he continued: 
"These subparagraphs [that is condition 5, subparagraphs (a) and (b)] make plain, as the respondents submitted, that it is 'essential' for a vehicle to use a restricted road in the Permit Area only if it has to reach a planned stopping place in that area that cannot be reached solely by the use of excluded roads.  The subparagraphs also make plain that minimal use is to be secured by the controls 'practicable' and 'shortest practicable'.  These controls raise questions of fact which I am sure justices can resolve in a common sense way without over precise measurement in marginal cases".
15.	Mann LJ had in mind, it seems to me, a situation in which a driver chose an alternative route on excluded roads, but the prosecution was able to demonstrate a further alternative route along which travel along restricted roads was marginally shorter.
16.	A further challenge to the Order was mounted on 14th June 1995 in TNT Express (United Kingdom) Limited v London Borough of Richmond upon Thames (CO/1537/95) in a Divisional Court over which McCowan LJ presided and Waller J gave the first judgment.  One question posed for the court was: 
"Whether it is permissible for the court to take into account facts other than the pure measurement of distances when considering the words 'practicable' or 'shortest practicable' in subparagraph 6 of condition 5".
17.	Waller J considered the context of the legislation which was to improve the living environment for residents in Greater London at night and at weekends.  He continued at page 10 of the transcript with which we have been provided at letter B: 
"When one looks at that Act and at the order made under it, it would not be and should not be a matter of surprise if the permits granted are being framed in such a way as to attempt to restrict to the minimum the passage of heavy goods vehicles through the streets of London at certain times.  When one then turns to the construction of the conditions themselves, it seems to me that there are firm pointers in that direction".
18.	At page 11, letter F, Waller J continued.
"The word 'practicable' simply contemplates that one route may be physically more appropriate than another for a heavy goods vehicle and that the word 'practicable accordingly' simply qualifies the shortest so far as physical attributes are concerned".
19.	McCowan LJ agreed.
20.	While, as I have observed, there is sense in the Justices's conclusion that to demand a prolonged diversion from the shortest possible route would be to increase pollution in total, it is my judgment that was not a consideration open to them when asking what was the "shortest practicable" route.  It was not for the Justices but for the legislature to decide questions of policy.  That policy is that certain heavy goods vehicles shall be excluded from specified streets, notwithstanding a longer journey may be necessary along other London roads.  The word "practicable" in context, it is clear, means "physically practicable".
21.	For myself, I would not entirely exclude the possibility that a driver might avoid conviction if he drove a truly minimal distance along a restricted road in order to avoid a detour of inordinate length along excluded roads.
22.	In any event, it seems to me that in a case in which a driver established that the transgression was minimal, he would be able to address the Justices as to the correct penalty in the circumstances.  In this case, the Justices simply did not direct their minds to the question of the distance travelled.  What they did was to compare the pollution which might have been generated by passing over a restricted road for two miles against that which might have transpired over a distance significantly longer.  
23.	In my view, that course was not open to them.  I would therefore answer the question stated in the affirmative and allow the appeal.  I would remit this matter to the Justices with a direction in the circumstances to convict.
24.	LORD JUSTICE SCOTT BAKER:  I agree.
25.	MR AGBAMU:  My Lords, only this.  Costs have been incurred by the London Borough of Richmond in bringing this case to appeal.
26.	LORD JUSTICE SCOTT BAKER:  If the London Borough of Richmond had taken the trouble to draw the attention of the Justices to the authorities, it might never have been necessary.
27.	MR AGBAMU:  I accept that.
28.	For the record, the costs -- and I have a written break down of the costs -- are £2,609, and I am happy to hand that up by giving a detailed break down of how that figure -- 
29.	LORD JUSTICE SCOTT BAKER:  You are asking for an order for costs against whom?
30.	MR AGBAMU:  I am asking for an order for costs against Express Limited.
31.	LORD JUSTICE SCOTT BAKER:  Yes.
32.	MR AGBAMU:  That break down has been served on those instructing my learned friend -- 
33.	LORD JUSTICE SCOTT BAKER:  Thank you.
34.	MR AGBAMU:  -- some weeks ago.
35.	LORD JUSTICE SCOTT BAKER:  I dare say Mrs Carter has something to say about that.
36.	MRS CARTER:  My Lord, I resist the application for costs.  If I were to refer to the rules, CPR now accepts costs follow the event, which might be my learned friend's view.  It also says that that provision can be reviewed by your Lordships in certain circumstances, and my Lord, I invite you to find the circumstances are firstly that the prosecutor is effectively putting right his own failure at the first instance; and secondly, the company had no choice but to follow the driver, who was the one who entered a plea of not guilty.  Therefore, the company had no choice effectively but to be here or to shrug and not to be here and, my Lord, I hope has assisted the court by appearing in the way the company has, and I invite you to make no order as to costs.
37.	MR JUSTICE PITCHFORD:  Mr Agbamu, do you want to add anything?
38.	MR AGBAMU:  My Lord, only this.  The company was represented at Feltham Justices.  I believe Mrs Carter herself represented the company.  She knew the law.
39.	MR JUSTICE PITCHFORD:  As opposed to your side, who did not.
40.	MR AGBAMU:  I certainly know the advocate who stood in the prosecutor's place and it would seem in reading it that no authorities were advanced by the prosecutor, but the prosecutor knew the law because I saw her attendance note following the hearing.  
41.	The law is plain and certainly the advocate in my place was at fault in not advancing the authorities.  I clearly accept that.  The learned clerk was also there to advice and it seems that there was a lapse on the clerk's part as well.
42.	LORD JUSTICE SCOTT BAKER:  Yes. 
43.	We think that there should be an order for costs in this case.  We have reached this conclusion on the basis that there is a duty on the defence advocate as well to draw attention to the court.
44.	MRS CARTER:  My Lord, may I simply say that the defence advocate had not seen those cases either.  The situation was that that was the first time they had been brought by the prosecutor, and since then they were produced.  So, my Lord, from the advocate's point of view, it was not a case of sleight of hand.
45.	LORD JUSTICE SCOTT BAKER:  No.  I was not for a moment suggesting that, but in the end, I think there is an obligation on everybody to know what the law is and tell them.
46.	MRS CARTER:  My Lord, there was certainly a failure.
47.	LORD JUSTICE SCOTT BAKER:  Thank you.
48.	We will fix the costs.  Do you raise any objection to the amount? 
49.	MRS CARTER:  My Lord, there is an allowance I think for four hours of hearing, which I am pleased to say has not taken four hours.
50.	My Lord, it is still the case that the company followed the driver at first instance.  The company was not running the case at first instance and the decision was by the Bench that since they had acquitted the driver, it simply followed that the company had to be acquitted.
51.	LORD JUSTICE SCOTT BAKER:  Yes.  I appreciate your point about that, but we are really now onto the question of whether there is any argument about £2,609. 
52.	MRS CARTER:  My Lord, attending a hearing at number 7 on that is four hours.
53.	LORD JUSTICE SCOTT BAKER:  Yes.
54.	MRS CARTER:  At most, that would be two and I think three quarters.
55.	My Lord, I simply do not know what 4.1 hours was spent on at the Magistrates' Court because it would not have involved the respondent, and the hours spent on the respondent I do not know either whether that is -- presumably, it must include the driver.  No time has been spent on this respondent, save for this respondent chasing the paperwork that did not arrive when the matter was originally -- 
56.	LORD JUSTICE SCOTT BAKER:  Yes.  Mr Agbamu, what do say about a modest reduction to this?   
57.	MR AGBAMU:  Do forgive me, my Lords.  I have served my copy to the court.
	 (Pause).
58.	These are units of time, rather than hours, it would appear.  All I would say is that the London Borough of Richmond are publicly funded -- 
59.	LORD JUSTICE SCOTT BAKER:  Yes.
60.	MR AGBAMU:  -- and are under a duty to minimise all possible costs.  
61.	Certainly Mrs Carter will be able to help on the question of the Magistrates' Court.  The hearing did not last four hours and six minutes.  So those are units of time, and also take account of preparation.
62.	LORD JUSTICE SCOTT BAKER:  Yes.  
63.	We think you can have your costs in £2,609.
64.	MR AGBAMU:  I am obliged.