Herron, R (on the application of) v Parking Adjudicator

MRS JUSTICE DOBBS: This is an application by the claimant for an adjournment. This is an application that is made towards the end of the hearing in light of, first of all, observations made by the court as to lack of certain documentation, as to what exactly the claimant's challenge was in relation to particularising the said errors of law made in the decision of 30 June, and in the light of the submissions made by Mr Rogers on behalf of the defendant.

The court made it quite clear that if any adjournment is granted the applicant will be liable for the wasted costs. Mr Mishcon took instructions on that aspect and nevertheless was instructed to make the application. Mr Rogers, on behalf of the defendant, makes the following observations by way of objection to the application: whilst accepting that the defendant's costs may be covered, he makes the following points: the hearing has been listed for some time; it is for the claimant to show, in accordance with the rules of law, that there is an arguable error of law; and it is unacceptable to come with a new argument and not to put in the documents which would support the arguments.

Mr Mishcon says that had these matters -- the criticism raised about lack of supporting documentation and further development of the errors alleged -- been raised by the interested party or the defendant, then they would have been put right.

There is no doubt that this court has had to do significant probing in order to ascertain what the claimant's challenge in fact was and what errors of law are alleged. It is correct to say that in the claim there is an allegation that the defendant erred in law in its decision of 30 June 2008. However, that submission was not fully developed until the court pressed Mr Mishcon for further and better particulars. The further and better particulars, in effect, amount to, first of all, a "reasons" challenge, in that the original adjudicator's decision in relation to the pertinent part of Regulation 4 gave no reasons for his finding in relation to Park Lane Village (the CPZ); secondly, lack of dealing with the Regulation 4 aspect in relation to the Sunderland City Council CPZ; and thirdly, which was the essence probably of the case originally, that in any event the first adjudicator erred in law in his findings in relation to Regulation 4, and the second adjudicator, it follows, erred in law by saying that she had no reason to interfere with Mr Keenan's interpretation of the law or its application to the facts as found.

It seems, therefore, that the defendant dealt with these matters in part, but obviously was restrained because of lack of documentation to develop any submissions fully; and also that the interested party, namely the Council, has not heard or read the development of the submissions as it has now been set out by the claimant in this case. It seems to me, and the reason I say this, despite any preliminary views I may have taken, having listened to argument and read all the relevant papers, that there needs to be clarity about what is being argued and what errors of law are being relied on. There also needs to be clarity as to what exactly were the submissions before the adjudicator prior to her coming to her decision of 30 June - whether or not, in particular, she had a "reasons" argument advanced to her in relation to the complaint that is now made about the lack of reasons, and whether she had raised before her the substantive argument in relation to Sunderland City Council and Regulation 4.

Therefore, on balance, and whilst I appreciate what Mr Rogers has said by way of submissions, it seems to me that an application should be granted because there are two new matters raised. It may well be, should permission be granted, that a decision will be made on an aspect that has not formally been considered by the courts before; secondly, in relation to the "independence" argument again, there is the decision in the case of De Crittenden. It was a case where there was no legal argument on either side and also the full background of the appointment and funding of the parking adjudicator was not before that court.

Therefore, potentially, both points that are raised are points which, if permission were granted, and I make no observations on that, could lead to a case which deals with the two issues fully for the first time. It is for that reason particularly, without forming any view on the merits at present, that this application for an adjournment is granted.

I intend to set in motion a number of directions to ensure that this case does not come "off the rails", and to ensure that hopefully on the next occasion, the case is dealt with as economically as possible, and that there is one single document which sets out the essence of the claim and any other matters relied on.

The first issue (and that was raised by Mr Rogers) is the question of amendment of the claim, because it seems to me that there should be better particularisation of the errors that are relied on, including the "reasons" issue, which is not set out in the claim form at all, and which the interested parties have not had an opportunity to deal with. So that will be the first direction. Permission will be granted to amend the claim form and this must be done within seven days. Following that, the claimant is to produce within 14 days a revised document which sets out clearly what the main points relied on are in relation to the decision challenged of 30 June 2008 and produces, within that timeframe, any other document relied on. I am not asking for a plethora of documents, but any other relevant document. In particular I have in mind the claimant's submissions that were before the adjudicator, Miss Kennedy, in relation to the pertinent aspects of this case, not the new evidence that does not touch on Regulation 4, the main argument or indeed the impartiality; it is anything relevant to those separate issues.

Thereafter the defendant and/or interested parties, if they want to put in a document by way of response, may have 14 days. That gives us 28 days. The case is to be listed as soon as possible after 2 June. What is a realistic time estimate? The time estimate I saw somewhere is 90 minutes. It has taken far longer than that. However, the court only actually allowed one hour. What is a realistic estimate?

MR ROGERS: My Lady, normally oral renewals are only given an hour by the court. I presume, if you made a special direction, because of what has happened today, the court may accept your estimate, given that we have taken, with the exception of a few other cases, about three-quarters of a day.

MRS JUSTICE DOBBS: It has taken about half a day at least.

MR ROGERS: We ought to allow three hours to include judgment.

MRS JUSTICE DOBBS: Mr Mishcon?

MR MISHCON: I would hope that we could, with these helpful directions, make things swifter. I think one has to be safe and err on the side --

MRS JUSTICE DOBBS: It would be helpful. Mr Rogers is quite right, we have had a number of different documents. It is difficult to keep these things in one's head in one block. We need a document that sets it out clearly. Is there any other direction I need to make, save for costs of today?

MR ROGERS: Simply in relation to the permission to amend, could it be specified that permission to amend is only granted in relation to the points you have identified in your judgment on the application for adjournment?

MRS JUSTICE DOBBS: The points I asked Mr Mishcon about, and which he agrees with: the reasons in relation to Park Lane Village; the lack of any reasoning in relation to the Regulation 4; substantive argument in relation to Sunderland City Council; and the third one was that his decision was wrong in relation to Regulation 4 -- are covered by the arguments that are in the skeleton argument and the grounds.

MR ROGERS: As long as it is understood that this is not an opportunity to think of another case again. When one grants permission to amend, one normally has the document. So I do not wish to create another step in these directions where we have to consider whether--

MRS JUSTICE DOBBS: There are really two issues: the lack of reasons on the first one and the fact that he did not deal with the argument at all in relation to Sunderland City Council. That is really it.

MR MISHCON: My Lady, yes.

MR ROGERS: Yes, if that could be incorporated in the directions?

MRS JUSTICE DOBBS: The order for today on costs?

MR ROGERS: Could it be that the costs of, and occasioned by, the adjournment and of the application to amend be the defendant's? By that, what I mean is that not only is it the costs of attending today, but also the costs of the subsequent documents whereby we are now going to have to have on both sides --

MRS JUSTICE DOBBS: The costs of responding to the new document basically.

MR ROGERS: Yes, I mean Sunderland are not here to argue about it. I am not representing them. As far as the defendant is concerned, I think effectively I must ask for our costs of dealing with the amended claim.

MRS JUSTICE DOBBS: You have not dealt with it yet. Perhaps you ought to ask for that. I will set out what the general principle is. The adjournment was on the basis that the claimant would be liable to the wasted costs of today. That is essentially it. Details obviously need to be ironed out.

MR ROGERS: I would submit that we should have the costs of, for example, considering and responding to the amended statement of case.

MRS JUSTICE DOBBS: You have not done it yet.

MR ROGERS: We have only to deal with it because of the failure.

MRS JUSTICE DOBBS: I have established the principle. I think the claimant can be in no doubt as to what I meant by: if they wanted an adjournment they would have to pay for the wasted costs.

MR ROGERS: It would be perfectly acceptable, for example, when amendments are made, that the amendments have to be dealt with--

MRS JUSTICE DOBBS: I have said the wasted costs, which you say include the costs of having to respond to the new document.

MR ROGERS: Certainly on a costs assessment we would say that has to follow. We receive the costs of responding. As long as everyone has recorded my submission--

MRS JUSTICE DOBBS: I think they have your point.

MR ROGERS: I will stop there, my Lady.

MRS JUSTICE DOBBS: The other thing is that it is unlikely to be in front of me. I am presently going out on circuit.

MR ROGERS: It is not expressly reserved.

MRS JUSTICE DOBBS: The associate is asking if counsel will kindly draft an order so she does not miss anything out.

MR ROGERS: Indeed.

MRS JUSTICE DOBBS: It needs to reach me by no later than lunchtime tomorrow, because I will be out of London after that.

MR ROGERS: I have a slight difficulty: I am catching a flight in a few hours, but I am sure we can.

MRS JUSTICE DOBBS: In the next few minutes.

MR ROGERS: We will stay behind.

MRS JUSTICE DOBBS: Stay behind and sort it out with Mr Mischon and he can be responsible for the drafting once you have agreed it.

MR ROGERS: Will you accept a handwritten document from us?

MRS JUSTICE DOBBS: That is fine. Thank you very much indeed.