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 WC2A 2LL
		18 February 2015

1. HER HONOUR JUDGE COE: This is an application for judicial review on behalf of the claimant, Mr Robert Humphreys, brought against the parking adjudicator in respect of a Penalty Charge Notice dated 27 August 2013. I should say that the decision was made on 12 December 2013, the decision maker being Teresa Brennan.
2. This was the ultimate outcome of an appeal by the claimant against the parking charge notice and permission for these judicial review proceedings was granted on 20 May 2014 by HHJ Thornton QC.
3. I should say at the beginning that the permission given referred to it being arguable that there were inadequate reasons given by the parking adjudicator, the decision maker, and that the permission sets out various points which would be arguable on behalf of the claimant in the view of the learned Judge.
4. I accept, having raised the issue with counsel for the claimant that if I find as I am urged to, that the reasons were so inadequate as to conclude that the decision was not reasonably made at all, then it is open to me to approach this, as I am invited to, on two limbs: first of all, asking myself whether or not the parking offence itself was committed, and secondly, whether there were compelling reasons as to why the Notice should be cancelled.
5. The facts are clearly set out and I do not intend to repeat them. At the time that the claimant parked his moped it was in a bay. The bay was for unlimited parking, there were no suspension notices on it and it was not subject to any suspension warnings. He left it there, I think, or intended to leave it there, for 3 weeks.
6. On his return, he found the Penalty Charge Notice and it became apparent that with only one working day's warning, the bay had been suspended, and the claimant received the penalty charge because shortly after the suspension notice was in place, a parking officer identified that he was parked in what was then a suspended bay.
7. The concessions and disputed facts set out first of all that the claimant parked legally in the first place. Secondly, that he had no warning of the suspension. Thirdly, that the bay was not under suspension, and fourthly, and importantly, (as was accepted on at least one occasion by the Local Authority), it is now clear that a driver is under no obligation to make any sort of checks as to whether or not a bay in which they have parked in these circumstances is under a suspension warning, or becomes suspended.
8. The matter under review is the decision, as I have said, of Teresa Brennan. The decision is set out at page 28/29 of the bundle. I have considered this letter, and in the context of the code and the authorities to which I have been referred, the charge is set out as being a Code 42 violation. The claimant's representations made it clear that he said that he had committed no offence, because the bay was not suspended when he parked in it.
9. The decision maker sets out:

i. "The facts in this case are not in disputed [sic]. At the time that the penalty charge notice was issued to the appellant's motorbike the bay was suspended. The photograph taken by the civil enforcement officer showed that there was a suspension sign in the bay. The Local Authority has provided evidence that the suspension sign was erected on 24th August. I am satisfied that adequate notice of the suspension was given. I find that the contravention occurred."

10. This gives no consideration at all to the claimant's representations, in which he set out, as I have said, that it was not suspended when he parked there. Although the decision maker goes on to say, outlining the facts which I have referred to:

i. "Mr Humphreys lives in Shropshire. He regularly travels to London by train to Euston Station. He uses the bike to travel in London. The bike was parked in the nearest motor-cycle bay to Euston. Mr Humphreys usually visits London about once a week. However, on this occasion he parked the bike on 15th August and did not return to London until 3rd September, when he found that the Penalty Charge Notice on his bike. Therefore it is quite clear that Mr Humphrey's [sic] was unaware that the bay was suspended."

11. In earlier correspondence with the Local Authority, and their response from Mr Glenister, the summary of the Traffic Management Order and Case Summary, it sets out (at page 25 in the bundle):

i. "The Council acknowledges that appellants [sic] statement that they parked their vehicle before the erection of the AWS and the Council records do confirm that to be the case. The Council would also acknowledge that there is no legal requirement for a driver to regularly check their vehicle to ensure a parking bay has not been subsequently suspended."

12. That is inconsistent with the reasons for rejecting the recommendation, which was that motorists have an obligation to park correctly and ensure they remain parked correctly.
13. The decision maker, going back to the letter at page 29, seemed to take into account some suggestion that there was an obligation to check:

i. "In correspondence the Local Authority suggests that the appellant should have made some arrangement to check on the status of the bay in case it was suspended. It is quite usual for a resident's bay to be suspended. Motorists issued with permits are advised of their responsibility to check status of bays and to make arrangements if they are away from home for an extended period. As the appellant's bike was parked near to a mainline station whilst he travelled outside London it seems to me to be unlikely that he could have arranged for anyone to check the status of the bay on a regular basis."

14. This paragraph clearly does not take into account the fact that the Local Authority indicated that there was no obligation on a driver to check, or does it refer to the inconsistency. It makes an analogy with a resident's bay permit, which is not the case here at all, and is inherently inconsistent, since it concludes that it is unlikely that the claimant could have arranged for anyone to check the status of the bay on a regular basis.
15. In these circumstances, I find that there were no adequate reasons given as required both statutorily and at common law, and of course in accordance with the authorities. In that respect, the adjudicator decision maker manifestly failed to consider first of all properly, or at all, whether or not the contravention had occurred.
16. Her reasons do not take into account the claimant's representations, and they do not take into account the inconsistencies in the evidence and in so far as those reasons which apparently refer to mitigating circumstances could be inferred to relate to the contravention itself, they are inconsistent. In fact she does not say that there are factors which she took into account in reaching her conclusion about the contravention.
17. The second limb of the complaint is that the decision maker failed to consider whether or not there were compelling reasons why the Notice should be cancelled. The decision maker makes no reference at all to compelling reasons and clearly, therefore, the adjudicator has failed to consider a matter which she should have considered. She sets out that she has no jurisdiction to take into account mitigating circumstances. Nonetheless, she goes on to consider what she feels are mitigating circumstances. Those reasons, as I have said are, again, inherently inconsistent and, more properly, go to the heart of the matter.
18. Finally, the decision maker makes a recommendation that the London Borough of Camden cancels the Penalty Charge Notice and of course the Local Authority did not comply with that recommendation, for the reasons that I have referred to in their letter and in their decision at page 31.
19. In the circumstances, it seems to me that, as has been set out for me in summary form: there was a clear failure to provide adequate reasons; the reasons given were so inadequate as to make the decision unreasonable; and the decision was not, as I find, properly made.
20. Had the decision been properly made, it is apparent that considering both whether or not the contravention had occurred and whether or not there were compelling reasons, it may be that the adjudicator would have made a requirement for the Local Authority to cancel the Parking Charge Notice and that is something that they would have been obliged to comply with, rather than simply avoid.
21. In the circumstances and for the reasons I have given, albeit shortly, I conclude that the decision maker did not understand the law as it applied to the decision that she was making. She failed to give adequate and full reasons. The claimant is therefore not able to assess why she reached the conclusion that she did, and in any event, she failed to consider compelling reasons.
22. In the circumstances, I quash the decision as requested, and given my view as to the overwhelming inadequacy of the reasons here and the error of law, I substitute my own decision on the basis that on the facts and the evidence, the only one that could reasonably have been made would be to find that either no contravention had occurred, or that there were sufficiently compelling reasons given any arguable (had it been argued) ambiguity in the rules that there should have been a requirement that this Parking Charge Notice be cancelled.
23. MRS TREMAYNE: My Lady, the only remaining matter is the question of costs.
24. HER HONOUR JUDGE COE: Yes.
25. MRS TREMAYNE: I have a short schedule here prepared by the claimant. I am acting pro bono, so there are no legal costs on the schedule. There are simply the costs that the claimant has occurred, effectively as a litigant in person, so their actual disbursements are not -- if I may hand up a copy? (Handed)
26. HER HONOUR JUDGE COE: I appreciate that the defendant is not here. Have they been made aware of the costs schedule?
27. MRS TREMAYNE: Yes, my Lady, the claimant has sent a copy to the defendant, and also to the interested party.
28. HER HONOUR JUDGE COE: Do you know when that was done?
29. MR HUMPHREYS: Two days ago, my Lady.
30. HER HONOUR JUDGE COE: And there has been no response to that?
31. MRS TREMAYNE: No, the claimant has not had any response to any of the most recent court documents, including the skeleton argument.
32. HER HONOUR JUDGE COE: It is only the last item I have any difficulty with.
33. MRS TREMAYNE: Yes, I anticipated you may ask about that. I have instructions on that, that there, as you see, there was a board meeting today (the claimant sits as a non-executive director which he has had to turn down) and that, of course, is his daily rate discounted in relation to tax.
34. I have an invoice from him, if it would assist, which is in relation to the last attendance he had at that particular board meeting, and therefore the daily rate, but I will be guided by you, my Lady.
35. HER HONOUR JUDGE COE: I appreciate that you are here to represent him, but as a party he cannot claim his loss of earnings which is, in effect, what these are, in pursuing his own litigation. He can claim his costs of travel and disbursements and obviously the court fees and so on.
36. The overnight accommodation, I assume, is required and I am happy to make an award of costs but not in respect of the £450.00.
37. MRS TREMAYNE: My Lady, I am grateful for the indication. The guidance that I found was from the Senior Courts' Cost Guidance. I am afraid I do not have a copy of that here, but I understood that to allow actual losses.
38. I appreciate -- I understand your point on general loss of earnings are not recoverable but if there have been actual losses in the sense of turned down work, and that can be evidenced that that was adequate, that is why that was included, my Lady.
39. HER HONOUR JUDGE COE: Exercising my discretion, I am going to allow the costs, but not of that last item, £450.00.
40. MRS TREMAYNE: I am grateful.
41. HER HONOUR JUDGE COE: Which means there will be costs in the sum of £1,444.06. Is there anything else?
42. MRS TREMAYNE: No, my Lady. Could I ask that those costs be payable within 14 days?
43. HER HONOUR JUDGE COE: Payable within 21 days.
44. MRS TREMAYNE: I am grateful.
45. HER HONOUR JUDGE COE: Could I express the court's gratitude to you Mrs Tremayne for appearing on a pro bono basis. Thank you very much.