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

This is a claim for judicial review of a decision of a parking adjudicator of 30 June 2008 refusing the claimants' application for a review of the decision of another parking adjudicator of 22 February 2008 dismissing the claimants' appeals against the issue of a number of penalty charge notices. Permission to proceed with the claim was refused by Sir George Newman on 12 December 2008 on a consideration of the papers. The claimants renewed their application for permission to proceed with their claim. That renewed application came before Dobbs J on 7 May 2009, but the hearing was adjourned to enable the claimants to amend their claim form. Those amendments have now been made.

The case relates to the circumstances in which road markings have to be accompanied by an appropriate sign on the same side of the road within a controlled parking zone. The claimants' case is that the markings on the road where the parking contraventions are said to have occurred were not accompanied by the appropriate sign, and they had to have been accompanied by the appropriate sign to justify the issue of penalty charge notices, because of the extensive use of other traffic signs within the controlled parking zone which contravened the provisions relating to traffic signs and which might have confused the motorist as to what were the restrictions on parking where the parking contraventions were said to have occurred. The case of the Interested Party, Sunderland City Council, which is the body responsible for the enforcement of parking contraventions in the area where the parking contraventions in this case are said to have occurred, is that the presence of other traffic signs within the controlled parking zone is irrelevant, unless those signs in some way confuse the motorist and create uncertainty over whether restrictions on parking apply to where those road markings were, and in this case they did not.

Sir George Newman took the view he did because in his opinion motorists could not have been confused about whether this was an area governed by restrictions on parking. Whether that is so or not, the claimants' case is that that is not on its own a relevant consideration. It is said that on a proper construction of the primary legislation and the relevant regulations, the presence of other traffic signs within the controlled parking zone meant that the markings on the road where the parking contraventions were said to have occurred had to have been accompanied by the appropriate signs.

The success or failure of this argument depends upon a careful analysis of the appropriate statutory regime. That regime is relatively complex. Although I am very sceptical about the correctness of the approach to the legislation which the claimants advance, I cannot say that it is so unarguable that a full hearing to consider it is unwarranted. I therefore give the claimants permission to proceed with their claim for judicial review of the decision of the adjudicator of 30 June 2008, to the extent that she found ”no reason to interfere with [the first adjudicator's] interpretation of the law or its application to the facts he found.”

I note that in paragraph 52 of the claimants' amended statement of grounds for claiming judicial review, the decisions for which permission to proceed with the claim are sought are “the decisions of the adjudicator up to and including the final decision dated 30 June 2008”. That mirrors what is said in section 3 of the judicial review claim form. The difficulty is that the claim was received in the Administrative Court Office (if the date stamp is anything to go by) on 24 September 2008. Unless the claimants apply for and obtain an extension of time, no decision prior to 25 June 2008 can be challenged. It may be that challenging the decision of 30 June 2008 is sufficient to enable the issue to be addressed, but if it is not, the claimants will have to reconsider their position.

The next set of issues which the claim raises are those raised by the amendments to the claim form. Those amendments allege that the first adjudicator's decision of 26 February 2008, and the second adjudicator's decision of 30 June 2008, failed properly to address the claimants' arguments, and failed to give sufficient reasons for their findings. I cannot give the claimants permission to proceed with the claim in respect of the first adjudicator's decision because that challenge is out of time. But again it may be that that does not matter because the challenge to the second adjudicator's decision may be sufficient to enable the issue to be addressed. I say that not only because the second adjudicator found no reason to interfere with the first adjudicator's interpretation of the law, or its application to the facts which he found, but also because that amounted to the adoption by the second adjudicator of the reasons the first adjudicator had given for dismissing the appeals.

However, whether or not either or both of the adjudicators properly addressed the claimants' arguments, or whether they gave sufficient reasons for their findings, are questions which, in my judgment, do not need to be decided. If the claimants are correct in their argument on the issue which the case raises, they will succeed whatever the reasoning (or lack of it) on the part of the adjudicators, and whether or not they addressed the claimants' arguments properly. Likewise, if the claimants are not correct in their arguments on the issue, they will fail even if the criticisms of the form which the reasons took are well founded. I therefore decline to give the claimants permission to proceed with their claim on the basis of the grounds introduced by the amendments.

The final issue which the claim raises relates to the argument that the parking adjudicator was not an independent and impartial tribunal, and that accordingly the claimants' right to a fair hearing of their appeals under article 6 of the Convention was infringed. The basis of this claim is that the appellate system in which the adjudicators operate is wholly funded by the local authorities who are responsible for issuing penalty charge notices, of which Sunderland City Council is one, and is funded from the revenue which the penalty charge notices produce. These local authorities also provide venues for the hearing of the appeals, and offices for the adjudicators and administrative staff. The independence of the adjudicators is said further to be compromised by the fact that the local authorities appoint them through a joint committee of which they are all members. The adjudicators are appointed, so it is said, on fixed-term contracts which cannot exceed five years, and they therefore do not enjoy security of tenure. The argument is that these circumstances are such as to lead a fair-minded and informed observer to conclude that there is a real possibility that the adjudicators are biased.

The allegation of lack of independence on the part of parking adjudicators was considered by Collins J in R (Crittenden) v National Parking Adjudication Service [2006] EWHC 2170 (Admin) and on appeal by Scott Baker LJ at [2006] EWCA 1786 (Civ). Permission to proceed with the claim for judicial review was refused. The claim was academic in that case because the parking adjudicator had allowed Mr Crittenden's appeal, but in any event the court rejected as unarguable the allegation of lack of independence. However, the principal point taken in that case was that the whole system of penalty charges was unlawful because it contravened the prohibition in the Bill of Rights against fines or forfeiture before conviction or judgment against the persons upon whom the fines and forfeiture were to be levied. That is a different issue from the adjudicators’ independence. One cannot tell from the judgment of either Collins J or Scott Baker LJ whether the arguments about the parking adjudicators’ lack of independence were the same as in this case.

Having said that, I am entirely satisfied that it is not arguable that a fair-minded and informed observer would conclude that there is a real possibility that the adjudicators are biased. My reasons mirror those which are set out in the defendant's summary grounds for resisting the claim, but it would be wrong to be too influenced by the technical position. It is important to attach due weight to what happens in practice.

The defendant's summary grounds, which Mr Oliver Mishcon for the claimants has not really engaged with at this hearing, show that parking adjudicators are appointed following open competition by a selection panel, and only then with the Lord Chancellor's consent. Indeed, their appointment is actually made by the Chief Parking Adjudicator, pursuant to powers delegated to him by the committee which represents those local authorities outside London responsible for the enforcement of parking contraventions. It is he who determines the terms and conditions of parking adjudicators and where they are to sit. Moreover, it is wrong to say that they do not enjoy security of tenure. They can be removed from office in very limited circumstances only, and even then only with the consent of the Lord Chancellor and the Lord Chief Justice. Their appointment is automatically renewed for a further five years, save again in very limited circumstances, and again only with the consent of the Lord Chancellor and the Lord Chief Justice. Additional factors safeguarding their independence are that since they must be either barristers or solicitors of at least five years' standing, they are subject to professional codes of conduct, and their decisions are subject to judicial review.

Finally, statistics are said to show that almost two in three appeals are allowed. That is an impressive indicator of independence. Adjudicators, of course, have no financial incentive to uphold particular penalty charge notices, and it is important to note that the funding provided by each participating local authority is based on the number of penalty charge notices issued, not the number of penalty charge notices upheld.

For these reasons, I refuse the claimants permission to proceed with this claim on the basis that the parking adjudication system lacks independence.

Directions for the hearing, and time estimate for the length of the hearing now that the issue has been limited to the one core issue of principle. What is your estimate, realistically, Mr Mishcon?