Hamnett v Essex County Council

Two principal questions arise on this appeal. First, whether the appeal is academic and should be entertained at all. Secondly, whether the High Court or the County Court had jurisdiction to entertain the application made by the then Claimant and now Appellant. In his judgment dated 13^th February, 2014 (“the judgment”), Singh J held, adversely to the Appellant, that the High Court lacked jurisdiction to do so. With the leave of Singh J and, in the event, solely on the point of jurisdiction, the Appellant now appeals to this Court.

The underlying factual background to this appeal concerns an attempt by Colchester City Council (“CCC”), in conjunction with the Respondent, to regulate the throughput of traffic in Colchester – with the aims, inter alia, of reducing traffic congestion and improving air quality. The mechanism for doing so was by way of two Experimental Traffic Regulation Orders (“ETROs”). These were first contemplated in March 2010. After extensive consultation or engagement events, which resulted in the adoption of ETROs rather than permanent TROs, the ETROS took effect on 17^th March, 2013. In passing, the timescale even for getting this far, is, if I may say so, both striking and concerning (albeit not germane to the issue before us). In the event, the ETROs were suspended on the 21^st April, 2013. They were not brought back into force and expired in September/ October 2014 (ETROS having a maximum lifetime of 18 months).

Almost inevitably, an ETRO impacts on different interest groups differently. Some stand to benefit. In this case, others, including the Appellant, who is disabled and the group which she chairs, were concerned at the impact upon them. In essence, the Appellant’s substantive complaint was that the ETROs would result in the removal of disabled parking in and adjoining the High Street, Colchester and that the alternatives offered by the CCC and the Respondent were unsatisfactory.

The upshot was that, pursuant to paras. 34-36 of Schedule 9 to the Road Traffic Regulation Act 1984 (“the RTRA 1984”), the Appellant made an application for statutory review of the two ETROs. No permission is required to make such an application. As set out in the application, the Appellant’s case was that the ETROs were unlawful and ultra vires the powers of the Respondent, in that:

“ (i) In exercising its powers to make the Orders the Council breached sections 29(6) and (7) of the Equality Act 2010, in that it discriminated against the Claimant by reason of her disability and failed to make reasonable adjustments in the exercise of making the Orders, by failing to allow Blue Badge holders to access the streets and to park on them.

(ii)

In exercising its power to make the Orders the Council failed to have due regard to the public sector equality duty pursuant to section 149 of the Equality Act 2010.

(iii)

In exercising its power to make the Orders, by acting contrary to sections 29 and 149 of the Equality Act 2010 and the considerations underpinning the Badge Scheme, the Council acted irrationally as a rational authority would obey the law. ”

By his order dated 13^th February, 2014 (“the order”) Singh J dismissed the Appellant’s application for a statutory review. He ordered that the Appellant should pay the Respondent’s costs of the application, to be the subject of a detailed assessment, if not agreed.

It may be noted that when Singh J heard the Appellant’s application, the ETROs were suspended but otherwise still extant. By the time the matter came before us, the ETROs had long since expired.

It is convenient at this point to set out the relevant provisions of both the RTRA 1984 and the Equality Act 2010 (“the 2010 Act”).

Beginning with the RTRA 1984, Part VI of Schedule 9, headed “Validity of Certain Orders”, includes the following provisions:

“ 34 (1) This Part of this Schedule applies –

(a)

to any order made under or by virtue of any of the following provisions of this Act, namely sections ….9….

(2)

In this Part of this Schedule –

(a)

‘the relevant powers’, in relation to any such order as is mentioned in sub-paragraph (1)(a) above, means the powers with respect to such an order conferred by the Act…..”

Pausing there, ETROS are made pursuant to s.9 of this Act. Continuing:

“ 35. If any person desires to question the validity of, or any provision contained in, an order to which this Part of this Schedule applies, on the grounds –

(a)

that it is not within the relevant powers, or

(b)

that any of the relevant requirements has not been complied with in relation to the order,

he may within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court….

36.

(1) On any application under this Part of this Schedule the court –

(a)

may, by interim order, suspend the operation of the order to which the application relates, or of any provision of that order, until the final determination of the proceedings; and

(b)

if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order.

(2)

An order to which this Part of this Schedule applies, or a provision of any such order, may be suspended or quashed under sub-paragraph (1) above either generally or so far as may be necessary for the protection of the interests of the applicant.

37.

Except as provided by this Part of this Schedule, an order to which this Part of this Schedule applies shall not, either before or after it has been made, be questioned in any legal proceedings whatever.”

Turning next to the 2010 Act, disability is, of course, a “protected characteristic” (s.4). In turn, s.15(1) lays down that a person (A) discriminates against a disabled person (B), if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. S.20 imposes an obligation to make “reasonable adjustments” (as defined) for disabled persons.

We are here concerned with the Respondent’s “public function” rather than the provision of a service to the public. By ss. 29 (6) and (7), the 2010 Act provides as follows:

“ (6) A person must not in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination….

(7)

A duty to make reasonable adjustments applies to –

(b)

a person who exercises a public function that is not the provision of a service to the public or a section of the public.”

Part 9 of the 2010 Act is entitled “Enforcement”. S.113(1) provides that “Proceedings relating to a contravention of this Act…” must be brought in accordance with this Part of the Act. S.114(1) provides for the County Court to have jurisdiction to determine a claim relating to a contravention of Part 3 – i.e., that part of the Act dealing, inter alia, with public functions. However, by s.113(3), an exception is provided for claims for judicial review – which are thus not “caught” by a combination of ss. 113(1) and 114(1). S.118 provides a time limit of 6 months for bringing a claim within s.114. S.119 deals with remedies, as follows:

“ (1) This section applies if a county court ….finds that there has been a contravention of a provision referred to in section 114(1).

(2)

The county court has power to grant any remedy which could be granted by the High Court –

(a)

in proceedings in tort;

(b)

on a claim for judicial review.”

S.149 of the 2010 Act contains the “Public sector equality duty”. Insofar as material, s.149 provides:

“ (1) A public authority must, in the exercise of its functions, have due regard to the need to –

(a)

eliminate discrimination….and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it….

(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.”

Here, as already indicated, the Appellant made an application for statutory review pursuant to Schedule 9 of the RTRA 1984 alleging breaches of ss. 29 and 149 of the 2010 Act. Schedule 9 of the RTRA 1984 provides for High Court jurisdiction and contains an “ouster clause” in respect of any other proceedings. So far as the application alleges breaches of s.149 of the 2010 Act, that occasions no jurisdictional difficulty; as is clear from the judgment (at [51]) there is no dispute that the High Court has jurisdiction to consider such a complaint and there is thus no tension with Schedule 9 of the RTRA 1984. However, there is at least an apparent jurisdictional conundrum with regard to complaints in the application of breaches of s.29 of the 2010 Act: does the High Court have jurisdiction (as would appear from Schedule 9) or does the County Court have jurisdiction (in accordance with Part 9 of the 2010 Act, at least unless such a statutory review comes within the s.113(3) exception for judicial review)?

Having, with respect, helpfully outlined the factual background and the statutory framework, Singh J turned to the submission advanced by counsel then appearing for the Appellant, namely, that the powers conferred by the RTRA 1984 had to be read “with and subject to” the requirements of s.29 of the 2010 Act; a public authority had no power to act in a way which breached the 2010 Act, because that would be unlawful and therefore ultra vires: [52]. The High Court, it was contended, had jurisdiction, because the concept of judicial review included a statutory application such as before the Court here.

At [57] and following, Singh J rejected these submissions; he held, ibid, that the High Court did not have jurisdiction to entertain the claim “insofar as it is based on section 29 of the Equality Act 2010…”. The phrase “claim for judicial review” in s.113 of the 2010 Act was a “term of art” and referred only to a claim for judicial review “in the strict sense ….under CPR Part 54”: [58]. Within the scheme of the CPR, a claim for judicial review was different from an application for review under a statute such as that sought in this case: [61]. This interpretation was, Singh J said, “supported by practical considerations”; in general, the Administrative Court was not well suited to hear factual disputes of the sort that may arise under s.29 of the 2010 Act: [63]. Singh J went on to contrast a statutory review brought pursuant to the RTRA 1984, which could be brought as of right and a claim for judicial review where permission was required before it could proceed to a substantive decision: [64] – [65]. The clear intention of Parliament was that claims under s.29 of the 2010 Act “must” be brought in the County Court. Accordingly, Singh J declined to entertain the present claim insofar as it was based on an alleged breach of s.29, read with ss. 20 and 15 of the 2010 Act: [64], [66].

Singh J next turned (at [67] and following) to the “public sector equality duty” (i.e. s.149 of the 2010 Act). It was an important duty but a procedural duty and did not control the substance of a public authority’s decisions: [68]. Singh J went on to reject the submission that the Respondent, in conjunction with the CCC, had not had due regard to the requirements of s.149. There followed in the judgment a set of careful findings as to the Respondent’s compliance with its s.149 duty. The Respondent’s task was difficult, “…raising a number of competing interests which had to be balanced…”: [75]. Although the outcome was disappointing for the Appellant and others, it was (at [76]:

“….important to recall that the public sector equality duty does not require any particular outcome to be achieved by a public authority; rather it imposes a procedural duty (and an important one) to have due regard to various matters in the process by which an outcome is reached. ”

Accordingly, the Appellant’s claim failed, insofar as it was based on alleged breach of s.149 of the 2010 Act. The Appellant has not pursued an appeal on that point before us. She has likewise not pursued any appeal against the Judge’s conclusion (at [78] – [79]) that the Respondent’s decision was not irrational.

For the Appellant, Ms Casserley submitted that the dispute was not academic and we should entertain it. Over and above the issue of costs, determination of the jurisdiction point was of wider importance.

On the substance of the jurisdiction point, Ms Casserley’s submissions can be summarised as follows: (1) There could not be a lacuna, otherwise there would be infringements of the Human Rights Act 1998 (“the HRA 1998”) and the European Convention on Human Rights (“the ECHR”). There needed to be a forum where a disabled person (or others with protected characteristics alleging discrimination) could complain of breaches of s.29 of the 2010 Act. The “ouster” clause, contained in para. 37 of Schedule 9 to the RTRA 1984, precluded questioning an ETRO other than by way of proceedings in the High Court, as provided by Part VI of Schedule 9. Accordingly, either: (2) The application for statutory review did not fall within the wording of s.113(1), “Proceedings relating to a contravention of this Act…”; or (3) The application was to be characterised as an application for judicial review and was thus within the s.113(3) exception; if need be, a broad and purposive construction was to be adopted. Additionally and in answer to questions from the Court, Ms Casserley maintained that Singh J’s rejection of the Appellant’s case on s.149 did not mean that she was bound to fail on s.29. S.149 involved a duty of process not substance whereas s.29 required an objective consideration by the Court of the adjustments made.

For the Respondent, Ms Hewson submitted that the appeal was academic and should be dismissed, summarily, on that ground alone. This was a classic case where the point was “moot” and, for the future, entirely hypothetical. Ms Hewson did, however, make it clear that the Respondent wished to preserve its claim for costs.

If the Court did entertain the appeal, then Ms Hewson sought to uphold the Judge’s decision for the reasons he had given. S.29 claims belonged in the County Court and typically involved detailed, fact sensitive issues. The resort to s.29 here was peculiar and arguably unnecessary; there was no breach of private law rights, not least because the Appellant at no stage had any right to park anywhere. There was no claim for damages. Ms Hewson objected to the “Human Rights” point relating to the ouster clause; it had not been argued below. In any event, as Ms Hewson put it in her skeleton argument:

“58.

It is not necessary to insert s.29 into the statutory review by the interpretative device proposed by the Appellant. There is no breach of her Article 6 rights in this result. There is no statutory lacuna as a result of the ouster clause to which she objects.

59.

The proper safeguard for the exercise of the Respondent’s statutory functions as a traffic and highways authority when making ETROs is the public sector equality duty under s.149. The Respondent discharged that duty …The ETROs were experimental and flexible, and open to modification in any event. ”

Finally, statutory review was not to be equated with “judicial review”. The courts had been particularly slow to allow judicial review of a decision in respect of which there were other remedies, as here; the judicial review jurisdiction was a “long-stop”: Hickinbottom J, in R (On the Application of Great Yarmouth Port Company Ltd v Marine Management Organisation) [2013] EWHC 3052 (Admin), at [41] – [42].

As foreshadowed, two principal Issues arise on this appeal. As we heard the appeal de bene esse, it is convenient to take those Issues in reverse (logical) order, namely:

I begin with the common ground or matters not in dispute:

To get one matter out of the way, I agree with Ms Casserley thus far: there cannot be a lacuna. An individual, who has a right under s.29 of the 2010 Act, must have a forum in which to pursue a remedy for alleged contravention of that right. For my part, that is so as a matter of statutory construction, without the need for recourse to Art. 6, ECHR or to range still more widely as, at one stage, Ms Casserley was minded to do.

Reverting to the jurisdictional conflict, I am not sure that there was consensus as to the reasons for it, still less its resolution which plainly is in dispute. My own reasons for thinking that there is such a conflict are as follows:

There is thus a conflict as to the forum in which a claim for contravention of s.29 of the 2010 Act must be pursued. Is it the High Court or the County Court? What is the solution to the conundrum?

To my mind, the answer lies in the well-known common law doctrine of implied repeal: where the provisions of two statutes cannot stand together, the later provisions prevail and the earlier provisions are treated as repealed by implication or amended to the extent necessary to remove the inconsistency. As expressed in Bennion on Statutory Interpretation (6^th ed., 2013), at Section 87(1):

“ Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the later by implication repeals the earlier in accordance with the maxim leges posteriors priores contrarias abrogant (later laws abrogate earlier laws). This is subject to the exception embodied in the maxim generalia specialibus non derogant…”

It must be underlined that the Court will not lightly invoke the doctrine of implied repeal; necessary repeals are usually effected expressly:

“ The rule is, therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together…..”

Halsbury’s Laws of England, Vol. 96 (2012 ed.), at para. 698.

See too, Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 590, at pp. 595-6 and 597; Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151, esp., at [42] and following and [60], per Laws LJ (a decision dealing with “constitutional statutes”, with which we are not concerned). As to the exception or qualification spoken of by Bennion, the doctrine is inapplicable or more difficult to apply where the earlier enactment is particular and the later general, in nature: see, Pattison v Finningley Internal Drainage Bd. [1970] 2 QB 33, at pp. 37-39.

In the present case, as I have sought to demonstrate, the Appellant, insofar as she alleges that the ETROs contravene s.29 of the 2010 Act, faces irreconcilable provisions as to jurisdiction: the RTRA 1984 providing for the High Court and the 2010 Act providing for the County Court. Those provisions cannot be made to stand together. Nor can it be said that the RTRA 1984 provisions were “special” and the 2010 Act provisions “general” in nature. They are either both “general” or, if anything, the provisions of the 2010 Act are more “special” in nature, dealing as they specifically do with discrimination. In my judgment, therefore, the High Court jurisdiction provided for in Schedule 9 to the RTRA 1984 must, to the extent necessary, be regarded as impliedly repealed by the provision for County Court jurisdiction contained in Part 9 of the 2010 Act.

Spelling this out: the High Court did not have jurisdiction to entertain the Appellant’s challenge to the validity of the ETROs on the ground of alleged contravention of s.29 of the 2010 Act because of the effect of Part 9 of that Act. The Appellant ought instead to have proceeded in the County Court, utilising the custom-made procedure found in the 2010 Act for doing so. Para. 37 of Schedule 9 to the 1984 Act must be treated as impliedly repealed, insofar (and only to such extent) as it prohibits recourse to the County Court in respect of such proceedings.

The practical attractions of this solution are readily apparent. As is not in dispute, questions as to the public sector equality duty (s.149 of the 2010 Act) – a duty of process, as described to us – remain in the High Court. If, however, separate questions arise as to an alleged contravention of s.29 – going to substantive matters – then they fall to be resolved in the County Court, which is well-equipped to resolve such factual disputes as may well be encountered, while at the same time enjoying the power (pursuant to s.119(2)(b) of the 2010 Act) to grant any remedy which could be granted by the High Court on a clam for judicial review.

I would therefore uphold the decision of the Judge (if for the somewhat expanded reasons set out above) and dismiss the appeal on the Jurisdiction Issue. My conclusion is that the County Court not the High Court had jurisdiction in this case to consider the challenge to the validity of the ETROs, insofar as the Appellant sought to rely upon an alleged contravention of s.29 of the 2010 Act.

I add this. I am conscious that the question of implied repeal was only lightly canvassed in the hearing before us. In other circumstances, it might well have been appropriate to have invited further submissions from counsel. However, in the light of my conclusion on Issue II (below), I am not inclined to do so in this case.

(1) Introduction: Although, de bene esse, we entertained the Jurisdiction Issue and dealt with it on its merits, it is right to address the logically anterior issue: was the appeal academic or “moot” and, if so, should we have dismissed it, summarily, at the outset?

(2) Authority: In a case involving a public authority and raising a question of public law, the Court has a discretion to hear the appeal, even if by the time it is heard, there is no longer an issue to be decided which will directly affect the rights and obligations of the parties as between themselves: R v Home Secretary, Ex p Salem [1999] 1 AC 450, at p.456, per Lord Slynn of Hadley. However, as Lord Slynn went on to emphasise (at p.457) that discretion was to be exercised with caution:

“ ….and appeals which are academic should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

Just how narrow this discretion is, was underlined in this Court, in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580; [2012] 1 WLR 782 (Practice Note). Lord Neuberger of Abbotsbury MR (as he then was) said (at [12]) that “the mere fact” that a projected appeal may raise a point or points of significance did not mean that “it should be allowed to proceed where are no longer real issues in the proceedings as between the parties.” At [15], Lord Neuberger formulated the following propositions:

“Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean ‘may’) be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated.”

Even taking into account that Hutcheson did not involve a public authority or a question of public law, the caution needed before exercising the discretion to proceed in a case which has become academic is readily apparent.

What of the argument that an appeal would not be academic as between the parties because the outcome might affect the incidence of costs? In R (Bushell) v Newcastle Licensing Justices [2006] UKHL 7; [2006] 1 WLR 496, Lord Hoffmann appeared to accept (at [5]) that this was a relevant factor, although, on the facts, there was also a major issue on a cross-undertaking which plainly could affect the position of the parties. Three of their Lordships agreed with Lord Hoffmann’s speech (at [17] – [19]). However, Lord Brown of Eaton-Under-Heywood expressed, with respect, powerful reservations as to proceeding with an appeal where all that remained in dispute was the incidence of costs at earlier stages of the litigation - rather than some “genuine issue” other than costs (at [22] – [27]).

In Hutcheson (supra), Lord Neuberger expressed “several concerns” (at [23] and following) in respect of the argument that an appeal in that case would not be academic simply on account of the issue of costs. It is fair to say that the bulk of those concerns were fact specific but one concern (of relevance here) is that it was not clear how much money was involved.

Pulling the threads together, I do not, respectfully, read these authorities as suggesting any inflexible rule as regards proceeding with an appeal which has become academic between the parties. Instead, in such a case, they point to the court having a narrow discretion to proceed, to be exercised with caution - even when a point of public law of some general importance is involved. If the only extant issue goes to costs, the Court is likely to be still more cautious before deciding to hear the appeal.

(3) Decision: I have already expressed my view that this appeal should fail on the merits of the Jurisdiction Issue. In addition and upon reflection, in my judgment, this appeal could properly have been dismissed summarily, on the ground that it was academic. My reasons can be shortly stated.

First, there is no doubt that, questions of costs apart, this appeal is academic as between the parties. As already noted, the ETROs have long since expired. The Appellant is no worse off by reason of losing on the Jurisdiction Issue. Had the Appellant prevailed on the Jurisdiction Issue (contrary to my view), she would, in substance, have been no better off. There could have been no question of any substantive relief above and beyond setting aside the order (i.e., of Singh J). For completeness, I was not attracted to (and, with respect, had difficulty following), the Appellant’s legal representatives’ proposal, contained in para. 3 of a post-hearing e-mail to the Court, dated 15^th December, 2016.

Secondly, it is fair to acknowledge that, at a level of generality, the Jurisdiction Issue gave rise to a question of law not fact and one of some wider significance. However, there is no material before us which suggests that a large number of similar cases exists or is to be anticipated (see, Ex p. Salem, supra). In any event, our decision on the Jurisdiction Issue could not and does not speculate on the hypothetical facts and issues which may or may not arise in the future. In that regard, it is to be kept in mind that the more obvious battleground for challenges of this nature is likely to concern compliance with the public sector equality duty (s.149 of the 2010 Act), as to which (see above) there is no dispute that the High Court has jurisdiction. Moreover, there are likely to be only a limited category of cases where, in practice (as distinct from theory), a claim can realistically be pursued for a contravention of s.29 of the 2010 Act, despite a s.149 claim having failed.

Thirdly, even if an extant issue of costs is capable of justifying the Court proceeding with an appeal which is otherwise academic, we were not presented with any clear evidence as to the costs in issue. With the public interest in mind, there must be real doubt as to the wisdom of and justification for permitting yet more costs to be incurred simply in order to dispute on appeal the incidence of costs below.

Accordingly, the fact that we heard the appeal de bene esse on the Jurisdiction Issue should not provide any encouragement whatever for pursuing academic appeals in this Court.

I agree.

I also agree.