NEIL HERRON PARKING APPEALS LIMITED v THE PARKING ADJUDICATOR and SUNDERLAND CITY COUNCIL (1) PARKING AND TRAFFIC APPEALS SERVICE (2) TRAFFIC PENALTY TRIBUNAL (3) NCP SERVICES LIMITED (4) SECRETARY OF STATE FOR TRANSPORT (5) (as Interested Parties)

Mr Justice Bean

[2010] EWHC 1161 (Admin)

The Administrative Court today rejected a widely-publicised challenge brought by motoring campaigners who sought judicial review of the decisions of the Parking Adjudicator. At an earlier hearing, Keith J had dismissed a challenge to the independence of the parking adjudication system under Article 6 of the European Convention on Human Rights. They also sought a declaration that a Sunderland city-wide Controlled Parking Zone (“CPZ”) does not comply with Regulation 4 and Direction 25 of the Traffic Signs Regulations and General Directions 2002 and that all single yellow line waiting restrictions contained within it are unenforceable.

The judgment of Mr Justice Bean distinguishes a series of cases dealing with defects in “signs and lines” (traffic signs and carriageway markings). The Judge expressly approved the approach developed by the Parking Adjudicator in its case law dealing with challenges to defects in signs and lines, which held that where the defect was in a different location from the one where the motorist had parked it could be treated as immaterial. The Judge stated, “Any non-compliance is immaterial if it is too far from the location of the particular motorist’s contravention to have led him or her into error.”

Dealing with the principle of statutory interpretation that penal statutes are to be construed strictly, the Judge observed that a statutory provision which permits the issue of a penalty charge notice must be construed strictly, in the sense that where there is a genuine ambiguity in the language used the motorist is entitled to the benefit of the doubt in interpreting it. But that does not mean that it has to be construed so literally as to produce an absurd result.

The statutory definition of a CPZ was held to mean that every part of every road in a CPZ, other than a parking bay, must be marked with a single or double yellow line, except where an alternative parking prohibition is marked out (such as that imposed by the zig-zags on the approach to a pedestrian crossing).

The Judge concluded that Mr Herron’s argument was “entirely based on technicality and utterly devoid of merit”, the Parking Adjudicator had not erred in law and the challenges to 54 penalty charge notices were rightly rejected.

Ian Rogers appeared throughout the proceedings for the Parking Adjudicator, instructed by the Traffic Penalty Tribunal.

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Ian Rogers

A nine-strong Monckton Chambers team competed in the Oxford Town and Gown 10k Race last Sunday to raise funds for the Muscular Dystrophy Campaign.  Monckton Man of the Race was Alistair Lindsay who came 11th out of a field of over 3000.

A nine-strong Monckton Chambers team competed in the Oxford Town and Gown 10k Race last Sunday to raise funds for the Muscular Dystrophy Campaign.  Monckton Man of the Race was Alistair Lindsay who came 11th out of a field of over 3000.

Monckton Chambers have been shortlisted as ‘Chambers of the Year’ at The Lawyer Awards 2010.

This year’s awards ceremony will be held at Grosvenor House, Park Lane London on 22 June.

The First Tier Information Tribunal has heard an appeal by the Department for Environment Food and Rural Affairs against a Decision by the Information Commissioner’s Office on 2 November 2009 that it must release all information requested by the Campaign for Clean Air in London (CCAL) on 22 January 2009.

CCAL’s original request was for:
“…a copy of any minutes, papers, correspondence or other material relating directly to any meeting (including sent subsequent to it) that takes places between Lord Hunt and Mayor Johnson.  I believe the meeting may include discussions about the western extension of the congestion charging zone and air quality”.

CCAL’s barristers asked the Information Tribunal to reject the Government’s attempt to rely on exemptions in the Environmental Information Regulations which it had failed to raise before the Information Commissioner or in its original decision.     The Government admitted there was no particular justification for its failure to raise the exemptions earlier in the process, or why the Tribunal should consider themnow.  Instead, it argued the Tribunal was obliged to consider any exemption that may be applicable, whether it had been raised previously or not.  The Tribunal ruled within minutes that the Government was not allowed to run the new arguments.

As a result, the Government accepted  that it “does not have much of an appeal left” and said it intends to seek permission to appeal the Tribunal’s ruling.

The Tribunal will publish written reasons for its decision before the end of this week after which the Government is expected to lodge formally its application for permission to appeal.  If the appeal is granted, it would be heard by the Upper Tier of the Information Tribunal. In the meantime, the remainder of the proceedings are stayed.

Simon Birkett, Founder of CCAL, said:
“Finally, CCAL wishes to thank again its legal team comprising leading barristers, Gerry Facenna and Laura Elizabeth John, and Phil Michaels Head of Legal at Friends of the Earth.  Without this tremendous legal team, CCAL would never have been able to win this case.”

The Commission was represented by Ben Lask.

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Gerry Facenna
Ben Lask
Laura Elizabeth John

The members and staff of Chambers are deeply saddened to confirm the sudden death of Ian Hutton on 1 May 2010.  He leaves behind many friends and will be sorely missed by us all.

There will be a memorial service at Lincoln’s Inn Old Hall from 5.00pm on Wednesday 26 May.  Please attend to bear witness.

On 7 May 2010 the Court of Appeal granted BCL permission to appeal to the Court of Appeal on the question of whether the Competition Appeal Tribunal was right to dismiss an application for an extension in time for lodging a claim for damages against BASF under section 47A of the Competition Act 1988 following a European Commission decision finding that BASF had participated in the vitamins cartel. In earlier proceedings [2009] EWCA Civ 434 the Court of Appeal held that BCL’s claim was out of time since an appeal against penalty, but not liability, in the EU courts did not stop time running under the Tribunal’s rules. As a result BCL then sought an extension of time under the Tribunal’s rules which was refused by the Tribunal. The Tribunal also refused BCL permission to appeal to the Court of Appeal.

The hearing in the Court of Appeal is likely to take place before the end of the year.

Christopher Vajda QC (who was not instructed in the proceedings before the Tribunal) acted for BCL in the successful application to the Court of Appeal for permission to appeal. He is instructed by Taylor Vinters.

Melanie Hall QC is to present this year’s Victor Durkacz Memorial Lecture at the VAT Practitioners Group Annual Conference on 18 June 2010.

The VPG is at the forefront of VAT practitioners’ representation, whose monthly meetings give members the opportunity to discuss various technical issues and to keep abreast of recent VAT developments.  The VPG Annual Conference invites leading figures in the VAT world to talk about a wide range of topics on VAT issues.

Melanie Hall QC has been an acknowledged leader in the field of VAT and Customs duties for many years, having appeared in some of the most high profile and landmark cases.

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Melanie Hall QC

R(Oxfordshire County Council) v The Bus Lane Adjudicator [2010] EWHC 894 (Admin)  Beatson J

Mr Justice Beatson gave judgment yesterday in a test case concerning the enforcement of penalty charges for bus lane contraventions in Oxford’s historic city centre.  The facts of the case concerned a 15 metre stretch of road adjacent to University College in the High Street, which was not marked by any of the familiar upright signs or carriageway markings designed to indicate bus lanes.  The ‘bus gate’ was one of several introduced by the County Council as part of a traffic scheme to reduce traffic congestion in the city centre in April 2007.  According to press reports, the Council collected £1.35m in fines between April 2007 and March 2009.

Mr Justice Blake, in granting permission to apply for Judicial Review of the Bus Lane Adjudicator’s decision to set aside a penalty charge, invited the Traffic Penalty Tribunal to play an active role in defending its decision, instead of the neutral role more commonly adopted by tribunals.  This was done to ensure that the hearing was contested and in the interests of clarifying the law.

The judgment of Mr Justice Beatson has resolved a difficult issue of statutory interpretation as to what constitutes a bus lane.  The relevant section of the High Street was held to be a bus lane.  In addition, the judgment deals with the statutory duty of local authorities to take steps to bring the terms of its traffic bye-laws to the attention of road users.  The Adjudicator had failed to take into account all relevant considerations and the decision was set aside. However, the Adjudicator had also made obiter findings on the issue of whether the Council was in breach of its statutory duty.  The only signs which stated the limited hours of operation of the bus lane were those at the very start of the bus gate.  None of the signs leading up to the bus gate stated the times of its operation.  Mr Justice Beatson agreed with the Adjudicator’s obiter reason for her decision.  The Judge held that the Council’s signs were misleading in giving the impression that the bus lane applied at all times rather than only between the times specified in the Council’s bye-law.  The Judge also refused to grant a declaration sought by the Council that the signs used at the start of the bus gate satisfied the Council’s statutory duty.

Ian Rogers was instructed by the Traffic Penalty Tribunal to appear for the Bus Lane Adjudicator.

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Ian Rogers

In a landmark decision for the insurance industry, the Court of Appeal has held that operators of comparison websites that introduced potential insureds to insurers were acting as insurance agents or brokers providing insurance intermediary services and so qualified for VAT exemption.

Rejecting HMRC’s arguments, the Court held that it is not necessary for a person to have a direct link with either the insured or the insurer in order to benefit from the exemption; it is sufficient for a person to be acting in a chain of intermediaries, so long as that person is providing services which are themselves characteristic of an insurance agent or broker.  In that regard, it is an essential characteristic of an insurance agent or broker that they are engaged in the business of bringing together insurance companies and clients or potential clients.

The Court of Appeal rejected HMRC’s application for a reference to the ECJ.

Valentina Sloane acted for the successful taxpayer Trader Media.

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Valentina Sloane