Credit card surcharges lead to parking penalties being set aside – High Court rejects Camden Council’s judicial review

02 Mar 2011

R(Camden Council) v Parking Adjudicator [2011] EWHC 295 (Admin)

This was a test judicial review case brought by Camden Council to challenge various decisions of parking adjudicators who had allowed appeals against the payment of penalty charges during a period in which Camden claimed an additional 1.3% as an “administration fee” for payments by credit card. Camden accepted for the purposes of the proceedings that it had no right to recover the 1.3% “administration fee” but denied that the parking adjudicators had the power to disallow recovery of the penalty charge itself.

In some cases, parking adjudicators directed the Council to cancel the penalty charge on the statutory ground that in substance the penalty exceeded the prescribed amount. In other cases, adjudicators held that the inclusion of a statement requiring an extra 1.3% to be paid with credit card payments fell within the statutory ground of “procedural impropriety”, whether or not the recipient of the parking ticket tried to pay by credit card.

In addition, the test case explored (a) whether the obiter comments of another adjudicator who would additionally have allowed the appeal by way of a collateral challenge to an invalid administrative act would provide a good ground for appeal and (b) whether the cases would fall within the statutory ground “that the alleged contravention did not occur”. Extensive argument dealt with the scope of the powers of the parking adjudicators generally. This was the first case to consider the breadth of the power of the adjudicators to consider collateral challenges and the new statutory grounds for appeal under the Traffic Management Act 2004.

Mr Justice Burnett upheld the decisions of the parking adjudicator in each case and dismissed Camden’s application for judicial review of their decisions. Both of the statutory grounds relied upon were held to have been correctly applied by the adjudicators. In addition, the judgment has provided valuable guidance on the scope of the statutory grounds of appeal and the power to consider collateral challenges to the validity of administrative acts.

The Judge set aside a protective costs order which had not been requested by the Parking Adjudicator, but which had been made by the Judge who had granted permission to apply for judicial review in order to ensure that the court would have the benefit of detailed argument from the Parking Adjudicator at the hearing. However, following the final judgment, Mr Justice Burnett made an order that Camden should pay the Parking Adjudicator’s costs of the proceedings.

The press reported that Camden face a possible liability of £10 million in overpaid charges. Camden were granted permission to appeal to the Court of Appeal.

Ian Rogers appeared for the Parking Adjudicator (instructed by the Parking and Traffic Appeals Service).

Ian Rogers is also appearing on behalf of the Parking Adjudicator (instructed by the Traffic Penalty Tribunal) as respondent to an appeal in the Court of Appeal on 11-12 July 2011 in the case of (R(Herron) v Parking Adjudicator).

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Ian Rogers