Judgement

Neutral Citation Number: [2011] EWHC 295 (Admin)
Case No: CO/13317/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/02/2011

Before :

THE HON. MR. JUSTICE BURNETT
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Between :


LONDON BOROUGH OF CAMDEN
Claimant

- and -

THE PARKING ADJUDICATOR
Defendant
-and-

(1) BFS GROUP 03568 t/a FIRST FOR FOOD

SERVICE

(2) LEE SUGDEN
Interested
(3) AIDAN BRADY
Parties

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Philip Coppel QC (instructed by London Borough of Camden) for the Claimant
Ian Rogers (instructed by PATAS) for the Defendant

Hearing dates: 22nd and 23rd November 2010
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Approved Judgment

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The Hon. Mr. Justice Burnett :
Introduction
1.
For a short time in 2008 and 2009 Camden Borough Council [“the Council”] applied a 1.3%
‘administration charge’, as they termed it, for paying sums by credit card due by way of civil
penalty for parking contraventions. Between 14 August and 6 October 2009 Parking
Adjudicators allowed four appeals against the imposition of the civil penalties themselves
because of the existence of the 1.3% charge, which had been notified to the drivers or owners
in one or more of the statutory documents generated following the alleged parking
contravention. This application for judicial review seeks to quash the decisions of those
Parking Adjudicators. The ground relied upon in support of the application is that none of the
statutory grounds upon which an adjudicator is empowered to allow an appeal was satisfied. In
consequence it is submitted that each adjudicator exceeded his powers. If the Council were to
be successful in this application for judicial review, the result would not be to disturb the
position in respect of the four drivers or owners concerned. A condition of the grant of
permission to apply for judicial review was that they should not have to pay the charges come
what may. They are technically interested parties in these proceedings but, unsurprisingly,
have taken no part.
2.
The appeals were argued before the Parking Adjudicators on the premise that the Council had
no power to impose the charge and thus in doing so were acting ultra vires. The parties have
assumed the same premise before this Court. I have not been asked to determine the
underlying question whether the Council had power to impose the administration charge. Mr
Philip Coppel QC, who appears for the Council, has explained that they will if necessary (in
these or other proceedings) argue elsewhere that the imposing of the powers was within their
statutory powers.
Procedural History
3.
These proceedings were issued on 9 November 2009. The Parking Adjudicators very properly
did not oppose the grant of permission when they lodged their acknowledgment of service.
The papers were placed before His Honour Judge Thornton QC sitting as a deputy High Court
Judge on 5 March 2010. He granted permission on terms which included the condition
already referred to. Additionally he ordered
“The defendant is protected from liability [to] pay any of the
claimant’s costs and is to recover the reasonable costs of
representation by counsel at the hearing and of any defence
document or skeleton.”

On 25 March 2010 the Council applied to set aside that part of the Judge’s order. The
application suggested that the matter be dealt with at the substantive hearing. That was a
suggestion made in the interest of saving public money all round. The Parking Adjudicators
did not suggest that the matter be heard sooner. Their detailed grounds followed at the end of
April.
4.
This chronology has resulted in an unsatisfactory state of affairs. The Parking Adjudicators
have taken part in these proceedings in circumstances where there is an order providing not

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only costs protection should the judicial review claim against them succeed, but also what
amounts to an indemnity in respect of their own costs. Nevertheless, they were at all times
aware that the order was vulnerable to being set aside. Having considered the arguments of the
parties I am satisfied that it is appropriate to set aside that part of the order made by the Judge.
Costs protection is not uncommonly sought in a claim form, when the claimant seeks an order
freeing him from liability should he lose the claim, or limiting his liability. When that occurs
the defendant will invariably deal with the issue in the acknowledgment of service and
summary grounds, with a view to the judge considering the matter on the papers. The judge is
then armed with argument. Any decision made can be revisited in an oral hearing if either
party requests it. There is a substantial body of law concerning the provision of costs
protection to claimants flowing from the decision of the Court of Appeal in R (Corner House
Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600. In R (Ministry of
Defence) v. Wiltshire & Swindon Coroner [2005] EWHC 889 (Admin); [2006] 1 WLR 134
Collins J decided that there was ‘no reason in principle why a protective costs order should not
in an appropriate case extend to protect the position of a defendant’. But he considered that
such an order would be ‘unusual and no doubt exceedingly rare’ (paragraph [34]). Whilst
understanding why the judge wished to immunise the defendants from any costs liability, there
was in my judgment no material before him which could lead to the conclusion that it was
appropriate to do so. It is necessary, in my judgment, before such an order is made for there to
be an application by the defendant concerned, with an explanation by reference to the
principles established by the authorities why such protection should be granted. Quite apart
from costs protection in the Corner House sense, there is a well established practice relating to
costs in judicial review proceedings against inferior courts and tribunals, summarised by
Brooke LJ in R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 1
WLR 2739 at [47]:
“It will be apparent from this judgment that the answers to the
questions I posed in paragraph 3 above are:
(i) The established practice of the courts was to make no order for
costs against an inferior court or tribunal which did not appear
before it except when there was a flagrant instance of improper
behaviour or when the inferior court or tribunal unreasonably
declined or neglected to sign a consent order disposing of the
proceedings;
(ii) The established practice of the courts was to treat an inferior
court or tribunal which resisted an application actively by way of
argument in such a way that it made itself an active party to the
litigation, as if it was such a party, so that in the normal course of
things costs would follow the event;
(iii) If, however, an inferior court or tribunal appeared in the
proceedings in order to assist the court neutrally on questions of
jurisdiction, procedure, specialist case-law and such like, the
established practice of the courts was to treat it as a neutral party, so
that it would not make an order for costs in its favour or an order for
costs against it whatever the outcome of the application;

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(iv) There are, however, a number of important considerations
which might tend to make the courts exercise their discretion in a
different way today in cases in category (iii) above, so that a
successful applicant, like Mr Touche, who has to finance his own
litigation without external funding, may be fairly compensated out
of a source of public funds and not be put to irrecoverable expense
in asserting his rights after a coroner (or other inferior tribunal) has
gone wrong in law, and there is no other very obvious candidate
available to pay his costs.”

Given the special treatment afforded to such bodies it is extremely difficult to envisage the
circumstances in which it would be appropriate to provide wider costs protection to them in judicial
review proceedings.



The Statutory Scheme
5.
Parking contraventions, along with all other motoring transgressions, were historically treated
as criminal offences. That rather heavy handed approach was reformed, initially by the Road
Traffic Act 1991 [“the 1991 Act”]. That Act enabled local authorities to be granted
decriminalised parking enforcement powers. Section 76 of the 1991 Act provided that where
such powers were granted to a local authority within London, parking contraventions would
cease to be criminal offences, but instead give rise to civil penalties. Section 77 provided:
“(1)
This section applies in relation to any vehicle which is
stationary in a special parking area (but which is not a designated
parking place) in circumstances in which an offence would have
been committed with respect to the vehicle but for section 76(3)
above.
(2)
A penalty charge shall be payable with respect to the
vehicle by the owner of the vehicle.”

The Traffic Management Act 2004 [“the 2004 Act”], which now governs the regime,
maintained the express link between identifiable former criminal offences (largely created by
the Road Traffic Management Act 1984) and civil penalties for many, but not all, parking
contraventions. Civil penalties apply in respect of many traffic contraventions in addition to
those relating to parking. The information provided by the Parking Adjudicators shows that
there remain some local authority areas in England and Wales that have not been designated
for the purposes of civil enforcement, but they are relatively few. The Council, along with all
others in London, operate the civil penalty system. There are some differences in the statutory
scheme as it applies to local authorities in London as opposed to other areas, but they are not
material for the purposes of this application for judicial review. It is sufficient to note that the
system of appeals against civil penalties provides for separate bodies of adjudicators for
London and elsewhere in England and Wales.

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6.
Three different statutory documents might be created in the course of a council’s dealings with
a motorist for a parking contravention prior to an appeal to a Parking Adjudicator. They are a
penalty charge notice, a notice to owner and a notice of rejection. Each is referred to in the
regulations comprised in secondary legislation which governs the imposition of penalty
charges, their enforcement and the appellate jurisdiction of the Parking Adjudicators. Those
regulations are The Civil Enforcement of Parking Contraventions (England) General
Regulations 2007 [“the General Regulations”] and The Civil Enforcement of Parking
Contraventions (England) Representations and Appeals Regulations 2007 [“the Appeals
Regulations”].
7.
A penalty charge is defined by the General Regulations as meaning ‘a penalty charge relating
to a parking contravention and payable in accordance with regulation 4’. Regulation 4 of the
General Regulations provides:
“4. Subject to the provisions of these Regulations a penalty charge
is payable with respect to a vehicle where there had been committed
in relation to that vehicle-
(a) a parking contravention within paragraph one of Schedule 7
to the 2004 Act (contraventions relating
to parking places in
Greater London);
(b) a parking contravention within paragraph 3 of
that
Schedule (other parking contraventions
in
Greater London) in a
civil enforcement area in Greater London; or
(c) a parking contravention within paragraph 4 of
that
Schedule (parking contraventions outside
Greater London) in a
civil enforcement area outside Greater London.”

8.
Schedule 7 of the 2004 Act, which it is unnecessary to set out, divides parking
contraventions in London into two groups. One group remains linked to criminal
offences (parking on footways, near crossings etc) whilst the other relates to parking
places and is no longer linked to a criminal offence. By contrast, parking
contraventions outside London are all linked to criminal offences, including those
relating to parking places.
9.
Regulation 5 of the General Regulations provides that liability for payment of a penalty charge
rests with the owner of a vehicle, save in cases of vehicles which have been hired or where the
owner later identifies the driver, and the authority has accepted that identification. Regulation
6 is concerned with the mode of proof of a contravention. Regulation 7 provides that no
criminal proceedings may be brought in respect of a parking contravention within a civil
enforcement area, except for a pedestrian crossing contravention. Such a contravention may be
subject to either a civil penalty or criminal proceedings (alternatively fixed penalty). In the
event that criminal proceedings are commenced or if a fixed penalty notice has been given, the
authority is obliged to refund any payment it has secured by way of civil penalty. Regulations
8, 9 and 10 of the General Regulations provide:
“Penalty charge notices

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8. – (1) In these Regulations a “penalty charge notice” means a
notice which –
(a) was served in accordance with regulation 9 or 10 in relation
to a parking contravention; and
(b) complies with the requirements of the Schedule which apply
to it as well as to those of regulation 3 of the Representations
and Appeals Regulations which so apply.
(2) The Schedule has effect with regard to penalty charge notices.

Penalty charge notices – service by a civil enforcement officer
9. Where a civil enforcement officer has reason to believe that a
penalty charge is payable with respect to a vehicle which is
stationary in a civil enforcement area, he may serve a penalty charge
notice –
(a) by fixing it to the vehicle; or
(b) giving it to the person appearing to him to be in charge of the
vehicle.

Penalty charge notices – services by post
10. – (1) An enforcement authority may serve a penalty charge
notice by post where –
(a) on the basis of a record produced by an approved device, the
authority has reason to believe that a penalty charge is payable
with respect to a vehicle which is stationary in a civil
enforcement area;
(b) a civil enforcement officer attempted to serve a penalty
charge notice in accordance with regulation 9 but was prevented
from doing so by some person; or
(c) a civil enforcement officer had begun to prepare a penalty
charge notice of service in accordance with regulation 9, but the
vehicle concerned was driven away from the place in which it
was stationary before the civil enforcement officer had finished
preparing the penalty charge notice or had served it in
accordance with regulation 9,
and references in these Regulations to a “regulation 10 penalty
charge notice” are to a penalty charge notice served by virtue of this
paragraph.”

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These provisions show that in the ordinary course a penalty charge notice will be served by the
civil enforcement officer if he is on the street, but with power to serve by post if the vehicle is
driven off or he is prevented from doing so. They also allow penalty charge notices to be
served by post where the contravention was witnessed via an approved device. That might
include CCTV coverage. Regulation 3 of Appeals Regulations (in summary) requires the
notice to explain that representations may be made against it. The Schedule referred to in
regulation 8 provides:
“Contents of a penalty charge notice served under regulation 9
1. A penalty charge notice served under regulation 9 must, in
addition to the matters required to be included in it by regulation
3(2) of the Representations and Appeals Regulations, state –
(a) the date on which the notice is served;
(b) the name of the enforcement authority;
(c) the registration mark of the vehicle involved in the alleged
contravention;
(d) the date and the time at which the alleged contravention
occurred;
(e) the grounds on which the civil enforcement officer serving the
notice believes that a penalty charge is payable;
(f) the amount of the penalty charge;
(g) that the penalty charge must be paid not later than the last day of
the period of 28 days beginning with the date on which the
penalty charge notice was served;
(h) that if the penalty charge is paid not later than the last day of the
period of 14 days beginning with the date on which the notice is
served, the penalty charge will be reduced by the amount of any
applicable discount;
(i) the manner in which the penalty charge must be paid; and
(j) that if the penalty charge is not paid before the end of the period
of 28 days referred to in subparagraph (g), a notice to owner
may be served by the enforcement authority on the owner of the
vehicle.
Contents of a regulation 10 penalty charge notice
2. A regulation 10 penalty charge notice, in addition to the matters
required to be included in it by regulation 3(4) of the
Representation and Appeals Regulations, must state –

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(a) the date of the notice, which must be the date on which it is
posted;
(b) the matters specified in paragraphs, 1(b), (c), (d), (f) and (i);
(c) the grounds on which the enforcement authority believes that a
penalty charge is payable;
(d) that the penalty charge must be paid not later than the last day of
the period of 28 days beginning with the date on which the
penalty charge notice is served;
(e) that if the penalty charge is paid not later than the applicable
date, the penalty charge will be reduced by the amount of any
applicable discount;
(f) that if after the last day of the period referred to in subparagraph
(d) –
(i) no representations have been made in accordance with regulation
4 of the Representations and Appeals Regulations; and
(ii) the penalty charge has not been paid,
the enforcement authority may increase the penalty charge by the
amount of any applicable surcharge and take steps to enforce
payment of the charge as so increased;
(g) the amount of the increased penalty charge; and
(h) that the penalty charge notice is being served by post for
whichever of the following reasons applies –
(i) that the penalty charge notice is being served by post on the basis
of a record produced by an approved device;
(ii) that it is being so served, because a civil enforcement officer
attempted to serve a penalty charge notice by affixing it to the
vehicle or giving it to the person in charge of the vehicle but was
prevented from doing so by some person; or
(iii) that it is being so served because a civil enforcement officer had
begun to prepare a penalty charge notice for service in
accordance with regulation 9, but the vehicle was driven away
from the place in which it was stationary before the civil
enforcement officer had finished preparing the penalty charge
notice or had served it in accordance with regulation 9.”
A notice to owner is defined by regulation 19 of the General Regulations in these terms:
“The notice to owner

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19. – (1) Subject to regulation 20, where –
(a) a penalty charge notice has been served with respect to a vehicle
under regulation 9; and
(b) the period of 28 days specified in the penalty charge notice as
the period within which the penalty charge is to be paid has expired
without that charge being paid,
the enforcement authority concerned may serve a notice (“a notice
to owner”) on the person who appears to them to have been the
owner of the vehicle when the alleged contravention occurred.
(2) A notice to owner served under paragraph (1) must, in addition
to the matters required to be included in it under regulation 3(3) of
the Representations and Appeals Regulations, state –
(a) the date of the notice, which must be the date on which the
notice is posted;
(b) the name of the enforcement authority serving the notice;
(c) the amount of the penalty charge payable;
(d) the date on which the penalty charge notice was served;
(e) the grounds on which the civil enforcement officer who served
the penalty charge notice under regulation 9 believed that a penalty
charge was payable with respect to the vehicle;
(f) that the penalty charge, if not already paid, must be paid within
“the payment period” as defined by regulation 3(3)(a) of the
Representations and Appeals Regulations;
(g) that if, after the payment period had expired, no representations
have been made under regulation 4 of the Representations and
Appeals Regulations and the penalty charge has not been paid, the
enforcement authority may increase the penalty charge by the
applicable surcharge; and
(h) the amount of the increased penalty charge.”

By virtue of regulation 2 on the Appeals Regulations, where the penalty charge notice is
served by post under regulation 10 of the General Regulations, that notice stands as the notice
to owner. Regulation 2 additionally defines a notice of rejection as ‘a notice served by an
enforcement authority rejecting, or not accepting, representations made to it under regulation
4, 8 or 11’ of the Appeals Regulations.
10.
In the case where a notice to owner has been sent to the owner of the vehicle said to have been
involved in a parking contravention, the owner may make representations to the authority why

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he should not pay the penalty charge. That is provided for by regulation 4(1) of the Appeals
Regulations. Regulation 4(2) and 4(4) specify the grounds upon which representations may be
made.
“4. – (2) Any representations under this regulation must
(a) be made in such forms as may be specified by the
enforcement authority;
(b) be to either or both of the following effects –
(i) that, in relation to the alleged contravention on account of
which the notice to the owner was served, one of more of the
grounds specified in paragraph (4) applies; or
(ii) that, whether or not any of those grounds apply, there are
compelling reasons why, in the particular circumstances of
the case, the enforcement authority should cancel the penalty
charge and refund any sum paid to it on account of the
penalty charge.
4. – (4) The grounds referred to in paragraph (2)(b)(i) are –
(a) that the alleged contravention did not occur;
(b) that the recipient –
(i) never was the owner of the vehicle in question;
(ii) had ceased to be its owner before the date on which the
alleged contravention occurred; or
(iii) became its owner after that date;
(c) that the vehicle had been permitted to remain at rest in the
place in question by a person who was in control of the vehicle
without the consent of the owner;
(d) that the recipient is a vehicle-hire firm and –
(i) the vehicle in question was at the material time hired
from that firm under a hiring agreement; and
(ii) the person hiring it had signed a statement of liability
acknowledging his liability in respect of any penalty charge
notice served in respect of any parking contravention
involving the vehicle during the currency of the hiring
agreement;
(e) that the penalty charge exceeded the amount applicable in the
circumstances of the case;

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