Odele, R (on the application of) v London Borough of Hackney

MR JUSTICE BEATSON: This is an application for the judicial review of the continuing failure of the London Borough of Hackney to provide the claimant with copies of a penalty charge notice issued in respect of his motor vehicle in Hackney on 2nd July 2005. Permission was given by Mr James Goudie QC on 7th July 2006.

On or around 29th October 2005 the claimant received a charge certificate in respect of an unpaid penalty charge notice issued to the vehicle P627 MNN on 2nd July 2005. The claimant attended the defendant's office and stated that he received the charge notice but had never received the original PCN or the notice to owner which had purportedly been sent on 20th October. He requested a copy of the PCN and was told that he would have to put the request in writing. He completed the relevant form and returned it. However, he heard nothing until a date in February 2006 when he received a letter from the defendant demanding payment of £150 within 14 days on threat of further proceedings if payment was not made.

The claimant sent a letter before action to the defendant on 13th February, but got no response. The claimant said this morning that he made frequent requests to the defendant for a copy of the PCN and that his requests were ignored. He feels a sense of grievance, with some justification, at the failure to respond to his pre-action letter. There is correspondence from him in the bundle setting out his position. This includes a letter of complaint to the court dated 28th June 2006. In an earlier letter to the court (dated 20th May 2006) the claimant stated that another PCN was being dealt with by the Parking Appeals Services, but the issues surrounding the PCN which is the subject of this claim remained outstanding. The other PCN is referred to in the letter before action but the claim form in these proceedings only relates to the penalty notice allegedly issued to his car on 2nd July.

A letter dated 5th July from the defendant states that the charge (ie, the charge of £150) had been revoked and that it had been decided that payment at the discounted rate of £50 would be accepted if made within 14 days. This letter has all the hallmarks of an automatically produced letter. It does not address the issues which the claimant had raised in his dealings with the Council, in his letter before action and in his application which had been filed on 4th April 2006, over three months earlier. There is another apparently automated letter dated 7th November 2006 stating that the Council was not contesting the appeal against the penalty charge notice and all charges had been cancelled.

The position at that stage was that the claimant had got the substantial relief that he sought. In section 6 of the claim form he sought the cancellation of the penalty charge notice. He also stated that he had still not received a response from Parking Services. He maintains today that the Council's failure to respond and to send him a copy of the notice -- because he clearly has doubts as to whether it was properly issued -- brings him here.

On reviewing this matter, it is difficult not to feel sympathy for the claimant. He has done all that can be expected of him to put his points to the Council. He has been faced with, first, silence, and secondly, a failure to address the issue which he raised, which was whether the notice was properly issued.

Mr Butler, on behalf of the Council, in a written skeleton argument submits that, as the notice was cancelled on 7th November, the claimant should have notified the court that the defendant was no longer pursuing the case. Because he has failed to do so, the defendant has prepared for the hearing and has incurred costs. The sole issue before me today is the defendant's claim for the costs of this hearing.

In principle, and had the claimant been represented, the defendant's submissions would have been unanswerable. A claimant in judicial review, after permission, is obliged to reconsider whether the claim should be pursued in the light of material that comes forward. The claimant, in effect submitted, that although the charge had been cancelled, there was also the issue of another charge. I consider that is irrelevant in this proceeding because the challenge was only in respect of the charge notice allegedly issued on 2nd July. Secondly, in effect the claimant wants the court to make some order which will enable him to know whether the penalty notice was ever issued.

This notice was cancelled over 11 months ago. There has been no communication informing the court since then. There has been no explanation to the court that the situation that existed when permission was given by Mr Goudie on 7th July last year had changed. In these circumstances, although the claimant is a litigant in person, I consider, subject to any representations that the claimant now makes, that the defendant is entitled to some of the costs of this hearing. The defendant's silence and failure to inform the court until yesterday of the position is, however, also culpable. Permission was granted. Both claimant and defendant are under duties to the court.

I have not had any statement as to the amount of costs, which it is sought that I summarily assess. In the absence of such a statement I am not able to assess them. The application for judicial review must be dismissed, because the claimant got substantially what he wanted 11 months ago. Notwithstanding his legitimate sense of having been messed around by Hackney, once the penalty charge was cancelled, he should have reviewed the prospect of litigation. These courts are for the resolution of real and live disputes. We have many people who have to wait a long time to come here. The court should not be used for disputes that are no longer substantially live.

I will hear, first of all, from Mr Butler. You ask for costs but you do not tell me what they are.

MR BUTLER: My Lord, they were lodged yesterday. There is a certificate of service.

MR JUSTICE BEATSON: Does Mr Odele have a copy?

MR BUTLER: That was also served on Mr Odele. He has a copy of the summary assessment.

MR JUSTICE BEATSON: Right. Mr Odele, what do you say? They want you to pay their costs because you did not tell the court about the penalty charge notice cancellation. I have ruled that, because of the cancellation, your claim cannot go ahead. You have heard my judgment. You have heard I have some sympathy with your position. I now give you a chance to make observations on the costs. They are asking me to award costs of £1,345.63.

MR ODELE: If they had responded to my letters, I would not also have incurred costs because it costs money to bring the matter to the court in the first place. If they responded to my numerous letters, numerous correspondence, we would not be here today. To be honest, your Lordship, I did not expect to see them in court today. I was surprised to see them in court today because they never responded to me. This bundle, I got it last night.

MR JUSTICE BEATSON: When you got the bundle you must have expected to see them in court.

MR ODELE: I still did not believe that they would come to court. I got this bundle last night, and I thought my God, maybe they are coming or they are not coming. I was not sure.

MR JUSTICE BEATSON: I understand that. What do you say about the costs? You say you incurred some costs which you would not have incurred but for their silence.

MR ODELE: That is exactly my point. If they had responded to my letter --

MR JUSTICE BEATSON: You have said that. I understood that. Is there anything else you would like to tell me?

MR ODELE: The application for costs should be dismissed.

MR JUSTICE BEATSON: Right. You have heard what I have said. Do you want to make any observations?

MR BUTLER: No, my Lord.

MR JUSTICE BEATSON: Mr Odele has asked that the application for costs be dismissed because the background to this case is of non-response by the London Borough of Hackney, which led to the application being raised and to permission being granted. I observe that the notice was not cancelled for some five months after permission was granted. There was still no response from the Council. I notice that although the substantial items in the defendant's costs list are attendances at the hearing, there is no breakdown as to -- sorry, these are only the costs of today?

MR BUTLER: Yes, it is just attendance today and preparing the bundle, my Lord.

MR JUSTICE BEATSON: Yes. I consider that the claimant is liable for some proportion of the costs because of his failure to inform the court. The defendant was on notice that this matter was coming forward, and equally knew that the notice had been cancelled. The defendant did not inform the court. I consider that the proportion of the defendant's costs that Mr Odele, the claimant, should pay is £250 and I so order. I am grateful to you both.

MR ODELE: Thank you, my Lord.