Court of Appeal rejects council appeal in parking test case over non-participation

A London borough was prevented from appealing in a parking test case after its "total non-participation" in earlier proceedings before the Administrative Court, the Court of Appeal has ruled.

The case of Camden London Borough Council v Humphreys & Anor [2017] EWCA Civ 24 involved an appeal by Camden from an order dated 18 February 2015 of Her Honour Judge Coe QC sitting in the Administrative Court as a judge of the High Court.

HHJ Coe had quashed a decision dated 12 December 2013 of a parking adjudicator, dismissing the appeal of Robert Humphreys against a penalty charge notice.

The principal substantive legal issue was the validity of a charge certificate in the sum of £195 in respect of a parking contravention by Mr Humphreys whose moped was parked in a suspended motorcycle parking area in Drummond Street near Euston station.

The moped was left in the bay lawfully, but Camden later erected a sign notifying motorists that parking in the bay would be suspended for a 24-hour period. The moped remained in the bay during the period and the penalty charge notice was issued.

The question before the Court of Appeal was whether the contravention for parking in a suspended parking bay only applied where the suspension was in effect at the time the driver parked or there was notice of a pending suspension, or whether it applied whenever the vehicle was in the bay during a period in which the bay was in fact suspended. A secondary substantive issue concerned the powers of a parking adjudicator and the court where there is a contravention.

However, the Court of Appeal had to consider what Lord Justice Beatson described as an important procedural issue. “This was the total non-participation by the Council in the proceedings in the Administrative Court despite its receipt of the claim form and grounds some eleven months before the hearing. Should a party which has chosen not to participate in litigation and has not put its case before the first instance court be able to appeal against the decision at first instance and, if so, in what circumstances?”, the judge said.

Parking dreamstime s 66634920 146x219Counsel for Camden submitted that the issue in the case raised a question of general public importance. In the local authority's notice of appeal, he stated that by fixing the point in time at which the lawfulness of parking in a suspended bay was to be considered, the Administrative Court's judgment introduced "a significant carve out to the civil enforcement of parking contraventions" "which is of uncertain scope, potentially applies to many motorists and undermines the effective management of any event which requires a parking bay to be suspended".

As the council's application for permission to appeal had been made over a month after the end of the period specified in CPR 52.4, it had also applied for an extension of time in which to make that application. When granting an extension of time to Camden to appeal and permission to appeal, in view of the circumstances, Vos LJ did so on terms that no costs were to be recoverable against Mr Humphreys (the respondent). Nothing was said about the amount of the penalty charge, or the provision of legal representation for Mr Humphreys.

Lord Justice McCombe said it was clear that the council had been fully aware of the proceedings (at least 11 months prior to the hearing before HHJ Coe) “and yet it consciously declined the opportunity to take any part in them at any stage”.

The Court of Appeal judge noted that there was a certificate of service (from Mr Humphreys) and that he was not prepared to accept, without more, an assertion by the council’s Parking Services’ Quality Assurance Manager, that the council had never been served with any documents either by the court or the respondent.

“Further, no explanation has been proffered to this court, either on the application for permission to appeal out of time that came before Vos LJ or in answer to our enquiries at the hearing, as to why the Council took no steps to participate in the proceedings in the High Court once (even on its own case) it knew about them," Lord Justice McCombe said.

"When asked for explanations, [counsel for Camden], doing the best that he could for his client, was confined to the statement that he could say no more than what appeared in [the manager's] witness statement. The Council has sought to argue that the point of law arising is an important one for its parking administration. However, its absence of contest to the proceedings below belies that submission.”

Lord Justice McCombe said there were clear provisions in CPR 39.3 setting out the circumstances in which a party who does not attend a trial may apply for any order made to be set aside. But he said he could not see that on such an application in this case Camden would have been able to satisfy the requirement that it "had a good reason for not attending the trial", within the meaning of CPR 39.5(b).

“Of course, this court will sometimes be willing to allow pure points of law to be raised afresh in appropriate circumstances, on the basis outlined in cases such as Pittalis v Grant….,” the judge said. “However, to my mind, that course will not necessarily follow where, as here, the appellant not only wishes to raise a fresh point of law for the first time but wishes for the first time to contest the proceedings in any respect.” [judge's emphasis]

The Court of Appeal judge added that Mr Humphreys was not informed either by the PCN, or by the council's argument before the Adjudicator, or by the Adjudicator's decision or by any argument presented to the High Court that he was alleged to have contravened Article 9.3 of Camden's Waiting and Loading Restriction Order 2012.

“It is normal that where a person is said to be subject to a civil liability for him to be informed of the basis upon which the alleged liability is said to have arisen. That did not happen here,” the judge said.

“When Mr Humphreys had the benefit of pro bono representation by counsel before the judge, it appears that counsel did not know the basis upon which the Council now contends that liability arose. Mr Humphreys lost the opportunity to have the material point of construction argued before the judge.”

The council should not be permitted to contest the judicial review proceedings for the first time in the Court of Appeal, Lord Justice McCombe said, adding that it was “far too late for that”.

Lord Justice Beatson said that “notwithstanding the Council's very unsatisfactory behaviour and the lack of an explanation for it, because of the importance to parking authorities and motorists of determining whether the contravention is a matter of strict liability,” his initial inclination was that the Court of Appeal should consider Camden’s submissions.

RCJ portrait 146x219However, after seeing McCombe LJ’s reasons in draft, he concluded that the court should not allow Camden to contest Mr Humphrey’s judicial review for the first time in the Court of Appeal. “The position is that because of the Council's decision not to provide this court with any explanation it does not know whether the Council had good reason for not attending the trial as would have been required for a successful application under CPR Part 39.5. I respectfully agree with McCombe LJ that this is an important factor when considering whether to hear the Council's substantive case.”

Lord Justice Briggs agreed with both judges, and Camden’s appeal was dismissed.

Based on the submissions heard, Lord Justice Beatson said he inclined to the view that HHJ Coe erred in concluding that there was no contravention in this case and that the adjudicator’s reasons were flawed.

“This is because I consider that the effect of the 2004 Act, the 2007 General Regulations, and Camden's Waiting and Loading Restrictions Order is to impose a strict liability offence for parking in a suspended motorcycle bay in the sense that there is a contravention when the vehicle is located in the area during a period in which its use for parking has been suspended,” Lord Justice Beatson said.

Lord Justice McCombe expressed reservations, saying he was not satisfied that the construction of Article 9.3 (from which liability to the penalty arose) advanced by the council and favoured by Lord Justice Beatson was the correct one.

“I question very much….. whether [Mr Humphreys] contravenes the Article when, again without any fault on his part, his cycle remains where he placed it in a period after the Council has chosen to put a suspension sign in place. I find it difficult to see that he permitted something to happen when he was neither aware that it was happening nor was under any duty to find out whether it was happening,” Lord Justice McCombe said.

“It seems to me that he should be no more liable than if he had parked and left his motorcycle on a street which the Council had decided should be a restricted street but without placing a sign informing the public of that fact.

Lord Justice Briggs said if it had been necessary for the court to decide based on the submissions heard, he would have been inclined to agree with Beatson LJ's conclusions and analysis, notwithstanding McCombe LJ's reservations.

“I cannot see how the system for the suspension of motor cycle bays and enforcement of that suspension by the imposition of penalties can otherwise be workable in practice, although the unusual facts of this case do demonstrate that motor cyclists contemplating leaving their machines in such bays for periods longer than a day or two may well need better warning of the possible consequences than is currently provided either by signage or by the Highway Code,” Briggs LJ said.

“But since our divergent views on this issue will create no binding precedent, nor affect the outcome of the appeal, I will go no further into the merits of the point about which my Lords disagree. It may be some slight comfort to the Council that our judgments will dispel the notion that the judge's decision is to be trusted as a reliable authority on this point. But final resolution of the issue will have to await a case in which it is fully argued out.”

A Camden Council spokesperson said: “Camden Council has taken further legal opinion and based upon this and the summing up of the appeal court judges we will not be pursuing this matter any further.

“Whilst the Court of Appeal did not accept the council’s appeal, the Court acknowledged the potential importance of the point the council sought to have determined to motorists and local authorities.

“Although the observations on the matter were obiter, the thrust of the speeches of 2 (out of 3) of the Court of Appeal judges supported the position that the council was taking on the law: that the offence is strict liability.

“However the council will be implementing various procedural improvements that have been identified as a result of this decision to strengthen the council’s parking enforcement activities for the benefit of the wider community.”