[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWCA Civ 1029
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Miss E Slade
(sitting as a deputy High Court judge))
||The Royal Courts of Justice
Monday 8th July, 2002
B e f o r e :
SIR MURRAY STUART-SMITH
||- v -
||ROYAL BOROUGH OF KENSINGTON AND CHELSEA
THE APPLICANT appeared on his own behalf
THE RESPONDENT did not appear and was not represented
HTML VERSION OF JUDGMENT
Crown Copyright ©
- SIR MURRAY STUART-SMITH: This is an application for permission to appeal from an order made by Miss Elizabeth Slade QC, sitting as a deputy judge, on 30th April 2002. The matter had previously come before His Honour Judge Geddes sitting in the High Court on 29th January 2001. There were then two matters before the judge, but the important aspect of this case was the respondent's application to strike out the claim made against it by the applicant. The learned judge, Judge Geddes, on that occasion adjourned the matter for three months so that Mr See could have an opportunity of pursuing his statutory appeal under the relevant regulations.
- The facts of the matter are these. The appellant parked his car in a bay which had a pay-and-display sign related to it. He parked without paying and displaying a ticket, and the car remained in the bay without a ticket for some three or four days until it was eventually removed and put in a car pound. The appellant went to the car pound and made the necessary payments to retrieve his car, but there were two parking tickets outstanding for the two days prior to the day of removal from the pound and those parking tickets gave rise to the claim. The appellant objected to the borough seeking to obtain payment for the two outstanding parking tickets. He said that the pay and display sign was not visible when he parked his car. The local authority rejected that argument and commenced enforcement proceedings.
- As I have indicated, the adjournment granted by His Honour Judge Geddes was so that the applicant could pursue his statutory appeal if he was so minded to the parking adjudicator for his determination, the respondents having indicated that they would take no point on the fact that the appeal was out of time.
- The statutory scheme is set out in the relevant legislation. Section 66(2) of the Road Traffic Act 1991 provides as follows:
"For the purposes of this Part of this Act, a penalty charge is payable with respect to a vehicle, by the owner of the vehicle, if—
(a) the vehicle has been left—
(i) otherwise than as authorised by or under any order relating to the designated parking place; ..."
- Schedule 6 of the Act provides a regime for appealing against the imposition of a parking ticket. By Schedule 6, paragraph 2(1) it is provided:
"Where it appears to the recipient that one or other of the grounds mentioned in sub-paragraph (4) below are satisfied, he may make representations to that effect to the London authority who served the notice on him."
- Sub-paragraph (4) sets out the grounds on which representations may be made. Those grounds include paragraph 4(b), that the alleged contravention did not occur. It would seem to me that if the no-parking sign was invisible, it could be contended that there was no contravention.
- There is further provision in paragraph 5 of the Schedule for steps to be taken should the local authority persist in maintaining the notice to pay. There is provision in paragraph 5 for an appeal to a parking adjudicator against the authority's decision. Paragraph 5(2) provides:
"(2) On an appeal under this paragraph, the parking adjudicator shall consider the representations in question and any additional representations which are made by the appellant on any of the grounds mentioned in paragraph 2(4) above and may give the London authority concerned such directions as he considers appropriate."
- There is provision for the ultimate recovery of the charge through County Court proceedings, which in fact take place in the Northampton County Court.
- The proposed grounds of appeal set out in the notice of appeal are these. The appellant contends that the judgment is wrong and should be set aside. He asserts that the respondent has acted in a way which is incompatible with the appellant's Convention rights, namely his right to a fair trial under Article 6(1), in that the judge failed to take into account the obscuration of the parking sign, such that the appellant was unaware of its existence and yet was fined for parking where such a sign could not be seen. Secondly, the appellant contends that the order of Miss Slade was made without proper consideration of the law as it pertained to the facts of the case. Finally, he contends that the judge did not consider or take into account the respondent's proposal to levy additional fees without complying with the appellant's request that the respondent identify statutory powers that it contended entitled it to levy those fines.
- In his brief submissions to his court this morning, Mr See repeats that he submits that the judgment of the lower court was incompatible with the Human Rights Act, notably Article 6 and Article 10. He says that he had no opportunity of defending himself in the Northampton County Court. That is because the matter was already decided, in effect, because he had failed to appeal to the adjudicator. He says that the strange location of the County Court -- it being away from central London - inhibits his rights under Article 6. He says that his rights to appeal to the traffic adjudicator are limited to a number of grounds, none of which apply to him, he suggests. Again, he says that his two grounds of defence were not included in the appeal process.
- In my judgment, the learned judge was right to strike out this case. There is no arguable breach of the human rights' claim on which the appellant can proceed. The appellant has failed, in my judgment, to show that the statutory regime in place is incompatible with Article 6 because there "exists a regime for determination of whether parking charges are properly imposed and also an appeal against such charges". That is the framework of the Act itself and the regulations. In my opinion, the learned judge did give proper consideration to the law and the facts of the case. The appellant appears to think that the borough had no power to levy parking fines in respect of the two outstanding parking notices because, he submits, that when he made to retrieve his car from the pound he had paid all that was due, and in effect he is being pursued twice for the same offence. That is not the case. The Road Traffic Act requires that when recovering the car from the pound only the parking notice for the day of removal should be paid, together with the removal fee and any charge for storage. The two days prior to that which were not paid were not claimed for at that time, and that is understandable under the procedure. There is nothing to prevent the borough from recovering those two separate tickets.
- The appellant has again, as I understand it, received an assurance from the borough that if he wishes to seek to appeal to the parking adjudicator, albeit out of time, it would not oppose the appeal. Whether the borough is still willing to do that I do not know, but it looks as though they may be. It seems to me that the appellant should have pursued his appeal to the parking adjudicator, which is the appropriate form for him to do. If he can persuade the parking adjudicator that he had not committed any offence, then he would be entitled to succeed. I doubt myself -- having seen the photographs which he has taken of the relevant sign -- whether he would succeed in establishing any such thing. But that is not a matter for me, but for the parking adjudicator if it goes that far.
- For my part, I think this application is without merit. I would dismiss it.
ORDER: Application for permission to appeal refused.
(Order not part of approved judgment)
Copyright Policy |
Donate to BAILII