England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		13 July 2004

1. MR JUSTICE MCCOMBE: To set out the context of the present application it is probably easiest to recite the decision of a national parking service adjudicator made in the case of the applicant, Mr Welsh, in November 2002. The adjudicator's decision is dated 4^th November 2002. It is headed "In the matter of J Welsh and the Watford Council", the Watford Borough Council is the respondent to the present application. The decision of the adjudicator reads as follows, in its material parts:

"On 19^th April 2002 at 12.59 the Penalty Charge Notice (PCN) was issued to vehicle LL51 XDX in Fearnley Street, Watford for being parked in a permit space without displaying a valid permit.

"Mr Welsh and his wife, the driver on the day, explained to me that they were visiting their daughter and they had with them an elderly gentleman. Mrs Welsh parked the vehicle in a residents' parking bay outside their daughter's house and all three of them went inside. They had first displayed in the vehicle both Mr Welsh's disabled person's Blue Badge and clock, correctly set to the time of their arrival. They were inside for some 15 to 20 minutes whilst Mrs Welsh made a drink for the elderly gentleman and when she returned to the vehicle the PCN had been issued. Mrs Welsh told me very candidly that she did not think to move the car before this time or obtain a visitors' permit from their daughter.

"The place where the vehicle was parked is within a restricted zone which prevents parking between the hours of 08.00 and 18.30 Monday to Saturday unless a residents' permit or visitors' voucher is displayed, display of a Blue Badge is not an adequate alternative.

"Mr Welsh's complaint, essentially, is that he considers it unfair that he can use his Blue Badge to park in certain places, for example, single and double yellow lines, but that he cannot use it to park in a residents' parking bay. Plainly Mr Welsh feels strongly about this and has entered into correspondence with various official bodies on the point.

"The Council explained the position to Mr Welsh on cancelling an earlier PCN issued in similar circumstances. The Council gave Mr Welsh a clear and helpful notice which set out where and when the Blue Badge may be used and also explaining where it cannot be used. In particular the notice said [the adjudicator quotes the notice in these terms]

'You are not permitted to park in a permit holders' bay unless you are a resident with a residents' permit or a residents' visitor with a residents' visitor scratchcard permit'.

"Whatever one may think of the rules they are clear and whilst they remain in place all drivers must abide by they will if they are to avoid the issue and enforcement of PCNs.

"This appeal is dismissed."

2. The status of the present application by Mr Welsh is not entirely clear but one can look at it in two ways. He is aggrieved first by the restrictions imposed upon him by the statutory scheme and secondly, by the issue of the specific ticket.
3. The first point is that in so far as Mr Welsh wishes to appeal, challenge, have reversed, however one may name it, the issue of the fixed penalty notice and fine that was imposed as a result of it, there are clear procedures for doing so which Mr Welsh observed. He appealed to the adjudicator and the adjudicator, the proper tribunal for considering those matters, dismissed the appeal. The only grounds upon which a adjudicator's decision can be challenged, as can be seen from earlier examples in the authorities, is by way of judicial review to this court on the grounds that the adjudicator had erred in law. Any such application, of course, would have to be brought promptly and the normal timescale for doing so is a period of three months. That time, of course, as can be seen from what I have already said about the date, has been long exceeded. However, I have looked at the matter in the round and although I do not extend the time for making the appropriate application, it seems to me, faced with the decision that the adjudicator had, he made a correct one. He had to deal with the facts, he made no discernible error of law and I cannot look into the evidential basis of the decision he made. I have to look at the simple legalities of the matter as to whether or not that decision was lawful or not.
4. I am not persuaded by any argument by Mr Welsh, courteously as it has been advanced by him and his daughter in writing and orally before me, that the procedure invoked by the adjudicator was in some way an infringement of Mr Welsh's rights under the European Convention of Human Rights as an infringement of article 6 of that convention. Mr Welsh contends that coupled with article 14, which prevents unlawful discrimination, the procedures discriminate against someone such as himself who has manifest and regretted disabilities. The proceedings brought before an adjudicator are the same for all citizens and I have no doubt, as all courts try to do, that they make every possible accommodation to make sure that those who wish to argue cases before them are courteously and respectfully heard. The adjudicator's decision in writing, which I have read in full in its relevant parts, displays such courtesy and consideration for Mr Welsh's circumstances.
5. He argues that tribunals such as this require some form of medically qualified member to be compliant with the Human Rights Convention legislation. While I understand the point I cannot see that any medical point arises. What it behoves the adjudicator to do is to resolve the question of whether there has been an infringement of the relevant regulations. That he can do without any form of medical assistance. He has to decide the facts. They apply across the board to the abled as well as the disabled, subject, of course, to proper exemptions that are made to those having disabled permits and allowing them to park in places where others cannot. The procedure, however, is entirely lawful. It treats all citizens alike and deals with them fairly as the adjudicator's decision did in this case in an exemplary fashion.
6. Thereafter there is no appeal, other than by way of error of law, to this court. As I say, I cannot discern any error of law and there is no avenue of appeal open in that case.
7. The second challenge that Mr Welsh has been treated as making, possibly to some degree by the ingenuity of the court office, is to challenge the validity of the regulation which set up the parking scheme which he was held to have infringed. The relevant order was made under powers conferred upon the council by the Road Traffic Regulation Act of 1984. Paragraph 35 of schedule 9 of that Act enables a citizen to challenge the making of any order under the statutory scheme within six weeks from the date on which the order is made. The relevant order in this case was the traffic regulation order, pertaining to Watford, of 2002. Clearly that was made a considerable time ago and the challenge that is sought to be made is also well out of time.
8. The argument that is sought to be made on the merits is again that in some way this statutory provision is discriminatory against disabled people. It seems to me that that is not the case. The provisions of the statute and of a further regulation, the Local Authorities Traffic Orders Exemptions For Disabled Persons (England) Regulations 2000 S.I. 2000 no. 683, gives suitable concessions to those with disabilities to enable them to park where others cannot. However, in accordance with exercise of their proper discretions the authority have to weigh the interests of all citizens including those who are residents in a particular area and they decided, quite lawfully, to make the provision they did in relation to the area of Fearnley Street where regrettably Mr Welsh was held to have contravened the regulations. That does not seem to me to contravene his human rights. It is a provision that seeks to strike a proper balance between all citizens, including conferring upon the disabled exemptions which other citizens do not have. It cannot be made possible for any citizen to park exactly where they wish and local authorities have difficult discretions to exercise as to where to draw the line in individual circumstances.
9. While I have the greatest sympathy with anyone faced with the predicament that Mr Welsh and his family suffered on that day it is the task of this court to apply the law impartially and coldly vis-à-vis all citizens and unfortunately I cannot act to grant any relief to Mr Welsh simply on the basis of a sympathy. He and his daughter, as I have said, have argued their case with courtesy and their presence has been greatly appreciated and I hope they understand the reasons why I am unable to help them in the manner that they should wish.
10. This application, in as far as I can discern its nature, is dismissed.
11. Miss Windle, is there anything else that arises?
12. MISS WINDLE: My Lord, there is. The council would apply for their costs in this matter.
13. MR JUSTICE MCCOMBE: Can you turn round and ask for instructions again just once more.
14. MISS WINDLE: My Lord, I will.
15. MR JUSTICE MCCOMBE: Your instructing solicitor has to follow his instructions too but I just wanted to confirm that those are your instructions.
16. MISS WINDLE: My Lord, that is right. I am in the slightly embarrassing position of instructing that the issue is, in fact, my fees. As I understand it, the council seeks to recover not any of their costs but simply their dispersements.
17. MR JUSTICE MCCOMBE: Do you have a schedule?
18. MISS WINDLE: My Lord, I do. If I can hand it up.
19. MR JUSTICE MCCOMBE: Has Mr Welsh had a copy? Not yet? Let me have a look at it and I will discuss it with them.

(Handed).

20. So it would be the fee for advice and (inaudible) documents and the like and the hearing and court fee?
21. MISS WINDLE: My Lord, I am instructed the fee for the advice and the hearing and the travelling costs.
22. MR JUSTICE MCCOMBE: I see. What is the total fee?
23. MISS WINDLE: And the court fee as well, my Lord. I am afraid I do not have a copy of it which is rather unfortunate.
24. MR JUSTICE MCCOMBE: Travel, it is not court fees it is simply travel?
25. MISS WINDLE: Yes, of course, we are defendant, my Lord.
26. MR JUSTICE MCCOMBE: Yes, and there are surprises. I was just reading the wrong column, that was all. So what it boils down to is the two fees that are there mentioned in respect of yours and a travel fee of £28.60?
27. MISS WINDLE: My Lord, that is right.
28. MR JUSTICE MCCOMBE: So the total sum would be £1,350 in fees and £28.60?
29. MISS WINDLE: My Lord, that is correct.
30. MR JUSTICE MCCOMBE: £1,378.60 I make it is the claim?
31. MISS WINDLE: That is what I make it.
32. MR JUSTICE MCCOMBE: Let me just pass that to Miss Welsh and ask her to address me on the point.
33. Miss Welsh, the council are applying for costs against your father. The normal course is that someone who loses a case has to pay costs. The figure that they are asking for is £1,378.60 which is in respect of the fees of counsel, Miss Windle, not any solicitors' fees, and a travel cost of £28.60 for those who have attended on the council's behalf.
34. First of all, does either of you want to say anything about the principle of whether I should award costs and secondly what the figure should be?
35. MR WELSH: I do not know.
36. MR JUSTICE MCCOMBE: Are you sure you do not want to say anything?
37. MISS WELSH: I do not know, I do not know what ...
38. MR JUSTICE MCCOMBE: I follow.
39. I have before me an application for costs of the unsuccessful application that I have heard today. As I have endeavoured to explain, the usual rule in this court is that those who fail in their applications have to pay the other side's costs unless there is a course shown to the contrary. I only paraphrase the rule, I am not reciting it verbatim. While, of course, I have the greatest sympathy with Mr Welsh, he has not advanced to me any reasons why I should not make the usual order in favour of the council that he should pay the costs and the question arises at what figure I should assess them.
40. It seems to me that the figure that is asked is simply in respect of dispersements, namely counsel's fees and a travel charge. Those do not seem to me to be out of order. However, sometimes the performance of justice in these courts has to be tempered with mercy and I propose to assesses the costs in the sum of £850 and I hope that the council will not see fit to challenge a decision which is made for the reasons I have given.
41. MISS WINDLE: My Lord, I am grateful. Thank you.
42. MR JUSTICE MCCOMBE: Thank you both very much, you have been very helpful in explaining your case.
43. Thank you, Miss Windle, for your written arguments which enabled me to understand the case much better.