Halton Borough Council, R (on the application of) v Road User Charging Adjudicators

Reference. COM011.

Category. Charge: Exempt.

Scenario. The VPR is from a UK or non-UK vehicle that has the appearance of military vehicle.

Evidence/Information/Check. If it is clear from the VPR that the vehicle is a military vehicle and exempt, then the PCN shall not be issued or the VPR shall not be sent to the EDRA.

Action/Outcome. The VPR shall be processed as an exempt vehicle and PCN not issued (N.B.: if PCN is still issued it will be dealt at representation stage).

Reference. ELG000.

Category. Eligibility: 3^rd Party.

Scenario. Representation received by unauthorised 3rd party.

Evidence/Information/Check. [blank]

Action/Outcome. Step 1 Letter to RK/PL Step 2 Letter to unauthorised 3rd Party. Refuse representation. Letter to RK/PL Letter to 3P.

In fact, this illustration is seen in action in the present case. Mr Curzon’s Case 5 Representations (13.10.19) did not lead to an NoR but rather to two letters (22.10.19). One letter was to Mr Curzon as RK. The other was to the 3P email address (“emovis-you-have-no-legal-power-to-do-this@halton.net”) from which the ‘Representations’ had been received. Its contents, reflecting Business Rule ELG000, were:

Reference. LREP003.

Category. Reason for lateness: Holiday.

Scenario. States went on holiday immediately after crossing.

Evidence/Information/Check. EVIDENCE REQUIRED: Proof of holiday dates and RK or PL being on holiday eg airline tickets, hotel details. The details of the evidence provided must cover the representation period.

Action/Outcome. If appropriate evidence provided: - disregard lateness – consider representation. If appropriate evidence is NOT provided: - Issue letter stating rep is too late to consider.

Reference. REP095.

Category. Paid – non account: States paid.

Scenario. No evidence provided.

Evidence/Information/Check. Investigate internal systems if no payment reject.

Action/Outcome. Reject representation. Ask the Scheme User to provide proof of charge payment for the vehicle captured and on the date of Contravention.

REP095 is seen in action in the present case. Mr Curzon’s Case 2 Representations (30.6.19) were:

The Case 2 NoR (12.7.19) said this (and, as Mr Bennett’s witness statement explains, no evidence of payment was subsequently received) (paragraph numbering in square brackets in quotations throughout this judgment have been added by me):

Reference. REP006.

Category. Compelling reason: Congestion at crossing.

Scenario. Crossing was congested so did not think charge was in place.

Evidence/Information/Check. [blank]

Action/Outcome. Reject.

In fact, REP006 is seen in action in the present case. Mr Curzon’s Case 4 Representations (23.9.19) included this:

The Case 4 NoR (11.10.19), reflecting Business Rule REP006, said:

Reference. REP031.

Category. Compelling reason: VIP.

Scenario. Claims that they are famous or a VIP and therefore do not have to pay the charge.

Evidence/Information/Check. [blank]

Action/Outcome. Reject representation.

Reference. REP026.

Category. Compelling reason: Signs.

Scenario. States that the Bridges Tolling/ Charging signs are missing / misleading / non-existent / illegal etc.

Evidence/Information/Check. [blank]

Action/Outcome. Reject representation however consideration should firstly be made under Business Rules: First Crossing (Rep181), First PCN (Rep186). Reject representation. Need to add in the relevant paragraphs to answer the representation eg. Signage paragraph if stating no signs.

In fact, REP026 is seen in action in Cases 4, 7 and 6: Mr Curzon’s Representations (23.9.19, 3.3.20 and 25.2.20) said this:

The NoRs (11.10.19, 10.3.20 and 26.2.20) said this, reflecting the Business Rule REP026 “relevant paragraphs” as they stood at the relevant times:

Reference. WS001.

Category. PCN Not Received.

Scenario. [various]

Evidence/Information/Check. [various]

Action/Outcome. PCN reissue.

In fact, WS001 is also seen in action, in Case 9. In conjunction with his third Bridge Crossing (30.10.20), in respect of which a PCN was issued (10.11.20), this was reissued (11.5.21) after Mr Curzon responded to a Charge Certificate (16.2.21) with a WS001 witness statement (17.3.21). The Certificate was cancelled.

notification, adjudication and enforcement of charging scheme penalty charges.

Secondly, section 195(1)(b)-(d) empowers the Lord Chancellor by those Regulations to:

These Regulations make provision for the civil enforcement of a penalty charge imposed in respect of a motor vehicle by a road user charging scheme made under Part 3 of the Transport Act 2000… Regulation 2 defines words and terms used in the Regulations. Regulation 3 contains provisions dealing with the service of penalty charge notices and other documents … Part 2 (regulations 4 to 6) deals with the imposition of, amount and liability for penalty charges… Part 3 (regulations 7 to 11) contains provisions about penalty charge notices. Regulation 7 explains when a penalty charge notice can be served and what information it must contain. Regulation 8 explains the right of the recipient of a penalty charge notice to make representations to the charging authority, which may accept the representations and cancel the penalty charge notice under regulation 9, or reject the representations under regulation 10. Regulation 11 explains the right to appeal to an adjudicator against a refusal by the charging authority to accept any representations made. Part 4 (regulations 12 to 16) makes provision for the appointment of road user charging scheme adjudicators, their procedure and the recovery of sums that are the subject of an adjudicator's award. Part 5 (regulations 17 to 20) provides for the civil enforcement of penalty charges. Where a penalty charge remains unpaid after the relevant period specified in regulation 17, the charging authority may issue a charge certificate, after which, in accordance with regulation 18, if the penalty charge continues to remain unpaid the sum due may be enforced as if it were payable under a county court order… Part 6 (regulations 21 to 31) explain the range of enforcement powers in respect of motor vehicles that a charging authority may provide for in a charging scheme… The Schedule to the Regulations provides for the procedure for appeals to an adjudicator against the issue of a penalty charge notice or the exercise of powers in respect of a motor vehicle.

This Order authorises Halton Borough Council to construct, operate and maintain a bridge between Runcorn and Widnes for vehicles over and in the River Mersey and St Helen’s Canal and over the Manchester Ship Canal and Bridgewater Canal together with all the necessary related and ancillary works. For the purpose of the New Bridge the Order authorises Halton Borough Council, compulsorily or by agreement to purchase land and rights in land and to use lands. It provides for the new bridge over the River Mersey to be subject to tolls payable by those who use the new bridge in vehicles, and for enforcement powers in respect of non-payment of such tolls. The Order also authorises the making of alterations to the highway network, the power temporarily to close the River Mersey, St Helen’s Canal, Manchester Ship Canal and Bridgewater Canal, to remove vessels and to make byelaws.

Application of the 2000 Act. 46.—(1) Regulations made pursuant to section 173 (penalty charges) of the 2000 Act shall have effect in respect of the new crossing as if the tolls and charges charged pursuant to this Order were charges payable pursuant to a charging scheme made by order under Part 3 of the 2000 Act. (2) The imposition and payment of penalty charges in connection with this Order shall be in accordance with such regulations as the Secretary of State may make pursuant to section 173 of the 2000 Act. (3) Sections 174 (examination, entry, search and seizure), 175 (immobilisation etc.) and 176 (equipment etc.) of the 2000 Act shall have effect in respect of the new crossing as if Part 5 of this Order was a charging scheme made by order under Part 3 of the 2000 Act.

This is why Article 41(7) referred to “penalty charges”, in conjunction with “tolls”, as follows:

Article 41(5) provided that the undertaker could “appoint any person to collect tolls or charges as its agent” and Article 43(1) (§60iv below) empowered the undertaker to “enter into … concession agreements”.

… allow[] Halton Borough Council to make a road user charging scheme under the Transport Act 2000 in place of the tolling provisions in respect of the Mersey Gateway Bridge and Silver Jubilee Bridge to enable an open road charging scheme to be introduced.

The new Article 42A(1)-(5) provided as follows:

Now, instead of a scheme for “tolls” for the “bridge roads” of the New Bridge, to take effect as if they were charges under a 2000 Act charging scheme (the old Article 46), the undertaker was empowered (Article 42A(1)) to “make charging schemes” in respect of the “bridge roads” of either or both of the Bridges. This Scheme-Design power was more extensive (by virtue of Article 42A(3)) than the 2000 Act, and one of the 2000 Act restrictions was disapplied (by virtue of Article 42A(2)). The old Article 46 was repealed and replaced. Ancillary provision was made (Article 42A(4)) in relation to any charging scheme in force on 14 September 2016 in respect of the bridge roads (but in the event there was no such scheme). Article 43 was retained but Article 42A(6) contained an express restriction in relation to concession agreements (see §60v below). What all this means is this. When the Council made the RUC Scheme by the 2017 Scheme Order (and when this was replaced by the 2018 and 2020 Scheme Orders), this was as “charging authority” exercising 2000 Act powers, having been empowered to do so as an “undertaker” by virtue of Article 42A(1)-(3) of the 2011 Bridge Order as amended by the 2016 Bridge Order. This is how the legislative jigsaw pieces fit together. Importantly, in making the Scheme Orders the Council was exercising a “Scheme-Design” function, making provision including the following: (i) designating the relevant scheme roads; (ii) identifying the applicable “charges”; (iii) identifying the “classification of vehicles” to which the charges would apply; and (iv) identifying when and what “penalty charges” would be applicable.

Adjudicator Kennedy directed the cancellation of the PCNs for “numerous procedural improprieties”. There were three limbs (§31 below): the use of the word “tolls” in the PCNs; failure of the “charging authority” to discharge the Regulation 8(9) duty; and the use of “tolls” in signage. The Regulation 8(9) failure was because the Representations were not considered directly by any member of the Council or its staff but by Emovis. Adjudicator Kennedy concluded that Regulation 8(9) imposed a “duty” on the Council as the “charging authority”, which it could not “delegate” to an “external” body. She concluded that there was no “express or implied statutory power” allowing delegation. She accepted that some “administrative functions” could be “delegated” or “outsourced”, emphasising this was a “judicial” function. She found that there was “no provision” in the 2000 Act for the delegation of powers to any other body. She concluded that the Council could not rely on Article 43 of the 2011 Bridge Order, emphasising the restriction in Article 42A(6) which she said:

Adjudicator Kennedy also found in Mr Curzon’s favour based, in the alternative, on Regulation 8(3)(e)

Adjudicator Knapp on 15 May 2019 concluded that there was nothing “unreasonable” or “erroneous in law” in the “clear reasons” of Adjudicator Kennedy and therefore that the “interests of justice” did not require a review (§12(1)(b)(vi) of the Schedule to the Regulations).

Curzon No.1 was a decision by an independent judicial authority which held as follows, as a matter of law: Regulation 8(9) required consideration by the Council itself as charging authority; Emovis was not the charging authority; and an Operative could not discharge this function for the Council.

[1] It’s business as usual at the Mersey Gateway. [2] Halton Borough Council has been made aware of the Traffic Penalty Tribunal adjudicator’s decision in the recent appeal of Mr Curzon. Although this is currently being reviewed the Council would wish to reiterate that: [a] Adjudication by the Traffic Penalty Tribunal (TPT) cannot and does not, in law, invalidate or remove the powers in place from the 14 October 2017 to administer and enforce tolls on the Mersey Gateway Bridge. [b] Adjudication is specific to the case being considered, and any decision of an Adjudicator only relates to that particular case. [c] A decision of TPT does not have general effect nor carry any weight as precedent. [d] Any suggestion that the Council has no power to charge or enforce how it does this or that the Council[] is acting inappropriately or “illegally” is misleading, inaccurate and wrong in law. [e] The Adjudicator’s decision in respect of signage contradicts the decision of the Adjudicator in the an [sic] early case where the Adjudicator concluded signage is “large, well sited, in clear view, and to communicate to a driver unfamiliar with the area that a payment was required and how to pay”. [3] It’s business as usual at the Mersey Gateway – please continue to pay to use Mersey Gateway…

It is striking that the Council should have considered it appropriate to brief the press and the public this way – especially [2][d] – following an independent judicial adjudication finding that it had acted unlawfully and in breach of its statutory duty, with the logical consequence that it was unable to defend penalty charges on appeal following rejection of Representations. In the event, no issue has been raised before me and I say no more than to record that in the Joint Determination, Chief Adjudicator Sheppard said this:

I am writing to you exercising the delegated powers I have been given by the Council in relation to matters relating to the implementation of the Mersey Gateway project. Those delegated powers are contained both within Minute No. EXB 117 of the Executive Board of 15th January 2015 and within the Council’s Constitution, approved by the Full Council on 18th May 2018 (page 294 paragraph 14). In accordance with those delegated powers I have consulted with the Portfolio Holder for Transportation (Councillor Stan Hill) before exercising those powers. In so far as this is required by law and/or any Orders or Regulations relating to Mersey Gateway and Silver Jubilee Bridges I would confirm that I have read the attached Business Rules and agree the said rules set out therein. I confirm on behalf of the Council that the attached Business Rules should be applied by [i] The Council [ii] MGCB Ltd; and [iii] Emovis when considering [a] whether to Issue a PCN in respect of the crossing of Mersey Gateway or Silver Jubilee Bridges by a vehicle [b] any Representations arising from the issuing a PCN in respect of the crossing of Mersey Gateway or Silver Jubilee Bridges by a vehicle [c] any Response to any Representations arising from the issuing a PCN in respect of the crossing of Mersey Gateway or Silver Jubilee Bridges by a vehicle [d] any associated correspondence or decision making arising from the issuing or enforcing of a PCN in respect of the crossing of Mersey Gateway or Silver Jubilee Bridges by a vehicle. Any matters relating to the above, [a] that fall within the Business Rules shall be deemed approved by Halton Borough Council [b] that fall outside the Business Rules shall be reviewed and approved specifically by Halton Borough Council.

[W]here the CSR cannot find a pre-determined decision (after making multiple key word searches) or feel that a decision against a representation requires discretion, … they are instructed to refer this to the Escalation Panel.

The Response described the Escalation Panel as follows (at §§2.11-2.19):

In fact, the Escalation Panel is seen in action in the present case. In Cases 10 and 11, three of the four NoRs arose from decisions of the Escalation Panel (§9vi above).

Reference. REP182.

Category. Reps Quoting Mr Curzon Case.

Scenario. Customer makes a representation or appeal quoting or making reference to the adjudicators decision for case XM01672-1807 (Curzon) or rely upon any of the 3 specific issues associated with it, namely i) The use of the word 'toll' on PCN forms or any other standard documents or online information ii) The charging authority (HBC) not being entitled to delegate discretionary power to Emovis (or any other party) and that all representations should be considered directly by HBC iii) The signage used on the highway network is based on the employment of the word 'toll' and is therefore not authorised to convey liability to pay a road user charge.

Evidence/Information/Check. No evidence provided/required.

Action/Outcome. Any representations or appeal received on this basis are to be rejected, using the explanation as provided by HBC. Reject representation.

This is another Business Rule which can be seen in action in the present case, in Cases 4, 7 and 6. The NoRs (11.10.19, 10.3.20 and 26.2.20) all reflect Business Rule REP182. The “explanation” for REP182, as it stood in March 2020, is reflected in the text of Case 7 NoR (10.3.20) at [5]-[7] (see §81 below).

Reference. REP184.

Category. Road v Roads.

Scenario. Customer makes a representation related to the use of the singular word 'road' within the PCN.

Evidence/Information/Check. No evidence provided/required.

Action/Outcome. Any such representation or appeal will be refused on the grounds that; a) a PCN can be generated by accessing any element of road within the scheme roads; b) the evidence provided on the PCN (photo and location description) relates to one point on one particular road within the defined scheme roads; c) this particular road is designated as being subject to the Order; d) the use of the singular word is entirely appropriate. The evidence provided by the PCN demonstrates that the designated road within the scheme roads which generated the liability for payment of a charge was Mersey Gateway Bridge. This is clearly within the definition of item (i) of scheme roads within the Order as being “the road that approaches and crosses the new crossing” and therefore no further explanation is required. Reject Representation.

REP184 features indirectly in the present case. The text which subsequently became the wording of REP184 was included by the Operative in the Case 1 NoR (23.5.19), responding to the Case 1 Representations (§76 below).

The Council … notes at the outset of this letter the very considerable concern it has that the earliest of the 11 appeals which were decided by the Adjudicators on 10 January 2022 was filed with the Adjudicators some two and a half years earlier. Four of the other appeals concern PCNs issued in 2019; only three concern PCNs issued in 2021 (and none later than June 2021). The approach of the Traffic Penalty Tribunal has resulted in unconscionable delay, which would of itself render the appeal process unlawfully unfair. The unrequested consolidation of the appeals on an apparent ongoing basis is no good reason for why it took so long to resolve the earliest appeals. The proposed claim [for judicial review] does not rely on this as a separate ground; the Council wishes to raise the issues of wider importance. Nonetheless, the conduct of the Adjudicators in this respect will be raised before the High Court… Over 90 million trips have been made since October 2017, and the majority of drivers pay the Charges due without issue with a payment compliance rate of 97%... During this period, a total of 8665 appeal cases have been submitted. We note that the Council has been unable successfully to defend any appeal determined by an adjudicator.

First, the term “procedural impropriety” is one which “has the meaning given to it by Regulation 8(4) and nothing wider” (Camden §32), so that “the term is given a special definition” (Camden §47). Here is Regulation 8(4):

Secondly, the “procedural impropriety” must be one which arises in the particular case which is under consideration. The fact, for example, that non-compliant PCN(s) are issued in relation to other Crossing(s) would not constitute a “procedural impropriety” invoked by a Regulation 8 complainant or Regulation 11 appellant whose own PCN was compliant. The need for this nexus is obvious. It is reflected in Regulation 8(1)(a) referring to the relevant ground as one which must “apply” to the case involving the PCN in question.

Thirdly, the term “procedural impropriety” does not include those “long-established concepts of fairness” falling within the conventional public law description of “procedural impropriety” (Camden §32); nor does it embrace any “broad public law failing” (Camden §54); there being (Camden §52) “no independent roving commission to identify public law failings”.

Fourthly, the concept of a “procedural impropriety as defined is fatal to the recovery of a penalty charge” (Camden §32), because its existence when found by the charging authority makes Cancellation of a PCN mandatory (Regulation 9(1)), and its existence when found by the appeal adjudicator makes allowing the appeal mandatory (Regulation 11(6)). This consequence, together with the statutory definition, reflects the fact that (Camden at §32):

In London alone something of the order of 5,000,000 penalty charge notices are issued each year… [T]he Joint Annual Report of the Parking and Traffic Adjudicators for 2008-2009 indicates that there were just over 68,000 appeals in respect of such notices that year in London. The revenues generated for local authorities by the civil enforcement regime are very substantial… Paradoxically, their financial interests are served if drivers contravene parking restrictions and are also dilatory in paying the charge and thereby miss the opportunity to benefit from the discount for prompt payment…

Back in March 2006, Adjudicator Wilkinson had said this (cited in R (Barnet LBC) v Parking Adjudicator [2006] EWHC 2357 (Admin) [2007] RTR 162 at §23):

Jackson J described this reasoning as “compelling” (Barnet at §38), adding (at §§39 and 41):

Whether the concept of a “procedural impropriety” in Regulation 8(3)(g) includes matters which occur after the filing of representations under Regulation 8(9), with the result that it may constitute a ground upon which adjudicators can allow an appeal under Regulation 11(6).

The further Agreed Issue, as raised by Mr Curzon (in his Interested Party’s Grounds of Resistance) is this:

My answer to the first of these Agreed Issues is “yes”; and to the second is “in a case where Regulation 8(10) has been found to apply, yes”.

First, the “procedural impropriety” ground – like the other Regulation 8(3) grounds – are unmistakeably located within Regulation 8 (“Representations against penalty charge notice”). That is the clear structure and design of the Regulations. It follows that a “procedural impropriety” must be one which can be raised in Regulation 8 Representations. This fits with the nature of all the other grounds: Regulation 8(3)(a)-(f). All of these are points about whether the recipient of the PCN is, viewed by objective standards, responsible to pay it. And the same temporal restriction would apply to “compelling reasons”. It follows that a “procedural impropriety” is not, in principle, a failure on which no Regulation 8 Representations could succeed.

Secondly, this fits with the nature, function and purpose of the right of appeal (Regulation 11). What the Regulations secure is that an independent judicial entity will consider, on its merits, any point which could have persuaded the charging authority at the Regulation 8 Representations stage. The adjudicator ‘steps into the shoes’ of the Regulation 8(9) decision-maker, so as to be able to correct anything which at the Regulation 8 stage has not resulted in cancellation (Regulation 9) but which, instead, has led to a NoR (Regulation 10). An appeal is not needed for failure to comply with Regulation 8(9), because there is a bespoke deeming mechanism (Regulation 8(10)), on which the person who had made the Representations will be able to rely in the county court (Regulation 18) should there be any Charge Certificate (Regulation 17). When the Regulation 11 appeal deploys (Regulation 11(6)) the grounds “specified in regulation 8(3)” – including Regulation 8(3)(g) – that must mean those grounds as they were capable of applying in Regulation 8.

Thirdly, were it otherwise, very odd consequences would follow. In particular, an appeal could succeed in a case where the Regulation 8 Representations, whatever they said and whatever they relied on, had no merit at all, but something has arisen later. Indeed, Regulation 8(3) grounds could be advanced entirely prospectively, to seek (or reserve the opportunity) to take advantage of something which has not yet happened, so as then to rely on it on appeal, by which time it has happened. That is exemplified by any case making Regulation 8(9) Representations relying on limb (ii) from Halton No.1: those Representations were complaining prospectively about something which was going to happen to them. On the other hand, if “procedural impropriety” is temporally limited, there is no lacuna whereby requirements imposed by the Regulations go unobserved and defaults unchecked. In the first place, the appeal allows all substantive issues relating to responsibility to pay the PCN (grounds 8(3)(a) to (f)) to be determined by the appellate adjudicator on their merits. This is ‘curative’ of any, including any later, procedural impropriety. In the second place, judicial review is always available, just as it is for any breach of natural justice or any broader public law failing, to the extent that it may be needed.

Fourthly, the outcome of an appeal (Regulation 11(6)-(8)) contains no provision entitling the charging authority to issue a new PCN, by contrast with the position where there is Cancellation at the earlier Representations stage (Regulation 9(2)). That makes sense. The charging authority has the chance to identify a procedural impropriety which has arisen by the time of the Regulation 8 Representations. If it takes that chance and Cancels the PCN (Regulation 9(1)), it can reissue (Regulation 9(2)). If it does not take that chance, the appeal can succeed, with no reissue of the PCN. It would be odd if a later procedural impropriety were fatal and final, and the charging authority has had no chance to address it.

Fifthly, it is true that Regulation 8(4)(b) (§35i above) stands as an exception to this. It is an exception because Regulation 8(4)(b) would include, as a “procedural impropriety” – invocable on an appeal – the situation where a Charge Certificate (Regulation 17) has been served before a period of 28 days after an NoR (Regulation 17(3)(b)). That does not fit with the general temporal principle. But there is a good answer. Regulation 8(4)(b) is a single, specific extension to the general principle as to the time at which a “procedural impropriety” must have arisen. It is an extension beyond Regulation 8(4)(a). But if Regulation 8(4)(a) already applied to later “procedural improprieties”, Regulation 8(4)(b) would not have been needed. Regulation 8(4)(a) would already cover the position of the premature Charge Certificate (Regulation 17(3)(b)). This proves that Regulation 8(4)(b) is a specific extension to a general temporal rule.

Finally, this fits with the phrase “in relation to the imposition or recovery of a penalty charge” in the Regulation 8(4) definition of “procedural impropriety”. A step could relate to “imposition” or “recovery” and yet precede the Regulation 8 Representations. Even if that is wrong, and in any event, Regulation 8(9) is neither “imposition” nor “recovery”, it is something else. So, there is in any event a temporal stage – Regulation 8(9) – to which “procedural impropriety” cannot apply.

First, the language should be given its ordinary and natural meaning. Regulation 8(3)(g) says “a procedural impropriety on the part of the charging authority” and Regulation 8(4) says this means “a failure” to observe “any requirement” imposed by the 2000 Act or Regulations, whether “in relation to imposition” (ie. the PCN stage) or “in relation to … recovery” (later stages). And there is no support for a ‘gap’ between “imposition” and “recovery”, where important requirements of the Regulations fail to engage the definition of “procedural impropriety”. No sensible purpose could explain such a lacuna, which would be defeating of the purpose of securing disciplined compliance.

Secondly, the structure of the Regulations is that a failure must have arisen at the Regulation 8 stage in order to be invoked at that stage, under Regulation 8(1)(a) and in the Representations, as a ground for Cancellation. But such is the structure of the Regulations that the same “ground” – with the same language – is then adopted at the later appeal stage (Regulation 11(6)). So, the same “grounds” are applied. But they are dynamic. The question is whether the “ground specified” in Regulation 8(3) “applies”. That means at the time of the appeal. There is no magic in the grounds having been located in Regulation 8, or first encountered when deployed at the Regulation 8 stage. The “grounds” are invoked at a later stage, when they operate – at that stage – by reference to their express terms. They are not expressed to be temporally restricted. The appeal is afresh and can also consider the position as it now is. In the same way, whether there “are” compelling reasons for cancellation in the particular circumstances (Regulation 8(1)(b)) can be looked at dynamically on an appeal and a recommendation made (Regulation 11(9)). There is no basis to treat “compelling reasons” as excluding the opportunity to rely on a dramatic new change in circumstances.

Thirdly, this fits with the clear purpose of “procedural impropriety”: that the requirements imposed by the 2000 Act and by the Regulations are important and are to be complied with (§§35iv, 36 above), and that failure to observe the requirements “is fatal to the recovery of a penalty charge” (Camden §32) (§35iv above). The very fact that “procedural impropriety” is a ground of appeal, and for the mandatory allowing of an appeal, shows that adjudication on the substantive merits (the grounds concerned with responsibility to pay) is not intended to be ‘curative’ of procedural impropriety. A charging authority who does not observe the requirements of the 2000 Act and the Regulations is not permitted to recover the penalty charge. It is no answer that the RUC was payable and unpaid and the person concerned is substantively responsible for it and the default in paying it. It would be very odd if the duty to observe a requirement, including the taking of a step – including the service of a notice – otherwise than in accordance with prescribed conditions or otherwise than when authorised or required (Regulation 8(4)) should all apply with full force to the stage of one notice namely the PCN (Regulation 7) but not at all to the stage of another being the NoR (Regulation 10). Yet that is the logic of the temporal restriction.

Fourthly, the definition in Regulation 8(4) is squarely against the Council’s argument. Regulation 8(4)(a) includes “any” step and “any” notice. Regulation 8(4)(b) is a Regulation 17(1) Charge Certificate issued prematurely, which includes before 28 days after an NoR (Regulation 17(3)). All of that makes sense, where the general rationale and purpose is dynamic and inclusive. But it makes no sense as a single, subsequent outlier. Regulation 8(4)(a) and (b) are limbs of an inclusive definition. And it is wrong to say that Regulation 8(4)(b) would be redundant if Regulation 8(4)(a) is already temporally dynamic. Regulation 8(4)(a)(ii) is dealing with not doing something at the time when it was allowed or required (authorised or required). Regulation 8(4)(b) is dealing with doing something too soon: at a time when it is prohibited (before it is authorised). It follows that a charging authority’s failure to observe the “duty” imposed by Regulation 8(9), and its failure to observe the requirement imposed by Regulation 10(1), in principle falls within the meaning of “procedural impropriety” on which a Regulation 11 appeal can succeed pursuant to Regulation 11(6).

Regulation 8(9) imposes a twofold duty: (a) a duty to consider Representations and supporting evidence; and (b) a duty within 56 days to serve the notice of the decision. The 56 days mentioned in Regulation 8(9) is 56 days from the date of the Representations: Regulation 8(9)(b). The failure to comply with Regulation 8(9) has the prescribed consequence under the Regulations, namely that the Representations are deemed to have been accepted: Regulation 8(10)(a). That prescribed consequence applies to any failure “to comply with paragraph (9)” within the 56 days. It does not say a failure to comply with paragraph (9)(b) (the duty to serve a notice).

Test it this way. Suppose the charging authority within the 56 days serves an NoR rejecting the Representations, but recording expressly that the Representations, though “duly made”, “have not been considered”. That would breach Regulation 8(9)(a). It would be a failure to comply, triggering the deemed-acceptance consequence (Regulation 8(10)(a)). The deemed-acceptance would give rise to a duty of Cancellation (Regulation 9(1)). The consequence of all of that, for the “penalty charge”, must be that the penalty charge “is” not “payable”. That satisfies Regulation 8(3)(e), on its ordinary and natural meaning. If this is true where the NoR makes clear on its face that there was no consideration of the Representations, then the same logic would – in my judgment – apply if it can clearly be shown that there was no consideration of the duly-made Representations, or for that matter of the supporting evidence.

This logic therefore provides an analysis which is an alternative to the “procedural impropriety” analysis, in a case where there has been no Regulation 8(9) “consideration”. That is said to be the case for the delegation and fettering issues. I agree with Mr Curzon: the same default in not discharging the Regulation 8(9) duty can in principle succeed both on Regulation 8(3)(e) and 8(3)(g). As he put it: it can be both. It could make a difference. Had I accepted that “procedural impropriety” is temporally restricted, I would then have concluded that Mr Curzon’s Regulation 8(3)(e) analysis is legally sound, in any case where Regulation 8(10) is applicable. However, if I am right that “procedural impropriety” involves no temporal restriction, the alternative of Regulation 8(3)(e) is not needed. It is duplicative. The Regulation 8(3)(e) alternative in this case turns on the effect of Regulation 8(10), which is triggered by a “failure to comply” with Regulation 8(9). But that failure to comply is a “procedural impropriety”, as a “failure to observe a requirement”. The overlap is complete, so far as Regulation 8(9) is concerned. And Mr Curzon’s ground (e) alternative cannot assist so far as the Costs Information Issue is concerned (§§91-95 below). That raises an issue of “procedural impropriety” which, if accepted, leads to a decision cancelling the penalty charge. But there is no applicable equivalent to Regulation 8(10). I can see no route by which there is an independent basis, in relation to that issue, for saying that the penalty charge is not “payable” for the purposes of Regulation 8(3)(e).

An authorised person may be a charging authority, an employee of a charging authority, a constable or any other person authorised in writing by a charging authority to act as an authorised person.

The RUC Scheme can empower an authorised person: to examine a vehicle to check that documents or equipment required by the RUC Scheme is displayed or fitted (Regulation 22); to enter a vehicle on reasonable suspicion of a false document or interfered-with equipment (Regulation 23); to seize and detain evidence of RUC charge evasion (Regulation 24); to immobilise vehicles for multiple unpaid PCNs (Regulation 25); to remove a vehicle (Regulation 27); and to dispose of a vehicle (Regulation 28). All of these are ‘discretionary’ powers circumscribed by the Regulations and by other relevant legal constraints.

the charging authority … has power—without recourse to any provision in the Enforcement and Adjudication Regulations—to choose (in an appropriate case) that it will not pursue or enforce payment of the penalty charge. There is nothing in the Regulations which prevents the recipient of a penalty charge notice from making whatever representations [they] wish[] in order to persuade TfL to exercise that power.

In all the circumstances, were the Adjudicators entitled to decide that it was a ‘procedural impropriety’ within the meaning of the Regulations for the Council to delegate the consideration of Representations under Regulation 8(9) to a third-party contractor?

My answer to this Agreed Issue is “no”.

Although a contractor may investigate the issues raised and recommend a response, an individual from the [Council] itself (ie. an employee) must perform the … function of determining Regulation 8 Representations.

This description would apply, on the face of it, to the three decisions which followed referral by the Operative to the Escalation Panel. This was not discussed by Chief Adjudicator Sheppard when she analysed Cases 10 and 11. At one point she herself said (§18.8.3: §83 below) that the “difficulty” is where a response was not “referred to anyone in the Council before sending it”, but that “difficulty” would not apply to these three decisions. There would also have been what the Encapsulation Summary called “consider[ation] by, or under the direction of, the charging authority”. It seems that the Council in its response to those appeals did not explain or disclose the relevant documents to the Adjudicators. If that is right, the Adjudicators did not miss a point. Rather, given the opportunity to explain and provide evidence, the point was not made. If so, I cannot see how the Council could succeed – by now relying on ‘fresh evidence’ in judicial review – in impugning the Joint Determination. If this point mattered to any contested question as to remedy, I would be looking to the parties’ submissions on consequential matters to assist me further.

A public authority may not delegate its decision-making functions without express or implied statutory authority. A power to delegate is not readily implied, particularly where the decision is judicial… Where judicial functions are concerned any other body involved in the decision-making process may normally only be used for gathering information – and this information must be fully summarised for the benefit of the authority which is to make the final decision.

He cites Beatson LJ in Noon at §26:

He points to Fosbeary (§39 above) where Adjudicator Nicholls found it to be unlawful for “these quasi-judicial functions to be contracted out”. He points to what he describes as “the case law on the delegation of judicial or quasi-judicial functions”. He describes the Regulation 8(9) function as “the judicial function of determining Regulation 8 Representations”. He submits that “the courts are slow to interpret a grant of legislative power as empowering delegation, still less a judicial function”; that “judicial functions … require a strong implication that delegation is permitted”; adding that approval of the Business Rules is “a quasi-judicial function”. Mr Curzon, for his part, has also characterised Regulation 8(9) functions and decisions as “judicial”. The Adjudicators agreed. Adjudicator Kennedy said: “it is not arguable that the proper consideration of a motorist’s representations is anything other than a quasi-judicial decision” (Joint Determination §4.2.6). Chief Adjudicator Sheppard referred to “the consideration of representations” as “a quasi-judicial duty placed on the charging authority” (Joint Determination §17.6). They followed Curzon No.1 where Adjudicator Kennedy had said: “A Council may, broadly, delegate administrative functions, but it may not delegate its judicial functions. The consideration of representations is a discretionary decision, which is a judicial function.”

First, as has been seen (see §26 above), the Scheme-Design function (§42 above) in making the RUC Scheme were empowered by Article 42A(1)-(3) of the 2011 Bridge Order, read with the 2000 Act and the Regulations. The Council is “the undertaker” for the purposes of the 2011 Bridge Order. In addition to the existing Article 42 power, to “charge tolls or charges” for the passage of vehicles over “the new crossing” (the New Bridge) with its “bridge roads” (as defined in Regulation 2), Article 42A(1) empowered the making by the Council of (i) an RUC Scheme in respect of the New Bridge’s “bridge roads” (ii) an RUC Scheme in respect of the Old Bridge’s bridge roads (“Silver Jubilee Bridge roads”) or (iii) an RUC which is “a single charging scheme for both”. A single charging scheme would necessarily forge an intimate interrelationship between the New Bridge and the Old Bridge, and between the New Bridge’s “bridge roads” and the Old Bridge’s “bridge roads”; the same powers and duties under the Regulations would apply to both.

Secondly, Article 2(1) of the 2011 Order provides:

“authorised activities” means the construction, carrying out and maintenance of the authorised works, the operation, use and maintenance of the new crossing and the exercise of any power, authority or discretion for the time being vested in or exercisable by the undertaker under this Order or otherwise; …

Under a single charging scheme, as empowered by Article 42A(1), the imposition and enforcement of the penalty charge would fall within a “power, authority or discretion” which was “vested in or exercisable by” the Council as “the undertaker” by virtue of the RUC Scheme made under the 2011 Order and by virtue of the Regulations. They are not “vested in or exercisable … under this Order”. But they are “vested in or exercisable … otherwise”. It follows that the functions of issuing a PCN (Regulation 7), of deciding to cancel a PCN (Regulation 9) or of refusing to cancel a PCN (Regulation 10) all constitute “authorised activities”.

Thirdly, Article 2(1) of the 2011 Order provides:

“concession agreement” means a legally binding arrangement which may be comprised in one or more documents that makes provision for the design, construction, financing, refinancing, operation, maintenance or any other matter in respect of the new crossing;

Fourthly, Article 43(1) provides:

Fifthly, all of this is subject to this express restriction found in Article 42A(6):

When the 2011 Order was amended in 2016, it provided that the functions of the Council as the charging authority (as opposed to ‘undertaker’) could not be transferred to an entity other than another highways authority.

[T]he amended 2011 Order expressly precludes the Council from transferring the powers, and, accordingly, the duties, of the charging authority. The Council is wrong to suggest that [Article] 42(6) is restricted to the making of the order. The powers and duties embodied in the Regulations attach to the public body that made the charging order, therefore if the order-making power cannot be transferred, nor can the powers and duties that stem from it be transferred. [§15.6.7]

Adjudicator Kennedy (at §4.2.19) reiterated her findings in Curzon No.1. There, she accepted Mr Curzon’s argument, that Article 42A(6):

She had rejected the Council’s argument:

As it is put in the Adjudicators’ pleaded Grounds of Defence:

First, it would have been easy for the drafters of Article 42A(6) to say that the “functions of the Council as the charging authority” – “the powers and duties as the charging authority” – could not be transferred by concession agreement to any entity other than another highways authority. The powers and duties as the charging authority were very well in mind. Article 42A(1) was conferring a power to “make charging schemes”, a term being defined (Article 2) as a “charging scheme” as “a charging scheme made by order under Part 3 of the 2000 Act”. A new RUC Scheme made, pursuant to Article 42A(1) and by Scheme Order under Part 3 of the 2000 Act, would bring into play the powers and duties under the Regulations, themselves made under Part 3 of the 2000 Act (§§20-23 above). The “2013 Regulations” were defined in Article 2 of the 2011 Order as amended in 2016 (a new Article 46 replicated for any Article 42 toll scheme equivalent enforcement powers as conferred by the Regulations).

Secondly, Article 42A(6) does not say this. It is clear, in providing that it is “the powers conferred by this article” which “may not be transferred under article 43(1)”. That is the clear and express limit of the restriction. The power “conferred by” Article 42A(1) is a power to “make charging schemes”; and an extended power is conferred by Article 42A(3) to include within the design of the charging scheme certain charges and matters “in addition to anything provided for under the 2000 Act”. The powers and duties of the charging authority, under the Regulations in respect of a new “charging scheme”, are not “conferred by” Article 42A. The “powers conferred by this article” are to “make charging schemes” (Article 42A(1)) and to “make provision” (Article 42A(3)). These are Scheme-Design powers. This is why Article 42A is entitled: “Power to make road user charging schemes”. It is the “undertaker” – Council – or, by concession agreement, “a traffic authority” (an authority responsible for roads) who must make the Scheme. The remaining provisions of Article 42A disapply a particular provision of the 2000 Act (Article 42A(2)); make ancillary provision treated as within the Scheme-Design of any charging scheme in force on 14 September 2016 (in the event there was no such scheme) (Article 42A(4)); and identify the substitutionary effect of a charging scheme (Article 42A(5)). So, the Council’s argument rejected in Curzon No.1 (§61 above) was correct in law. Scheme-Design is non-transferable and reserved to the Council or another traffic authority.

Thirdly, I think a further point can be made, though my analysis does not turn on it. If the Adjudicators’ logic were correct, it stands to have a striking consequence. It would not be limited to expressly precluding transfer of the Regulation 8(9) duty. Rather, there would be an express prohibition on transfer by concession agreement of functions of the charging authority, except to a traffic authority. That would stand to preclude a transfer of the PCN Review function (Regulation 7) by concession agreement to Emovis (cf. §65.1 below).

First, I have concluded that Article 43, read with Articles 42A and 2, by their express terms permit the delegation, by concession agreement, of the charging authority’s functions under the Regulations, including its powers and its obligations. That position holds, in my judgment, even if the characterisation of Regulation 8(9) is a “judicial” function. Article 42A(6) is an express restriction on a “legislative”-type function (Scheme-Design). There is no other restriction, still less tailored to a “judicial”-type function. I can see no basis for ‘carving out’ an additional, implied, restriction. The passages in Cross and Noon (§58 above) do not assist, because the power to delegate is not being “implied”. Given the express language of the provisions, what would be necessary would be an implied exception for a “judicial” function. This, moreover, in the context where there is an express restriction – Article 42A(6) – which on no view is limited to Regulation 8(9). So, the analysis is correct, in my judgment, even on the premise that it is right to characterise this as a “judicial” function.

Secondly, and although my analysis does not turn on it, I do not agree that the Regulation 8(9) duty is a “judicial” function. Certainly it is an important, evaluative decision-making function. And so far as this function is concerned, it is the Lord Chancellor (§21 above), and not the Secretary of State, who makes the Regulations. But that is true of “notification” too (under section 173(4) of the 2000 Act). That includes the PCN Review and issuing of PCNs which, albeit evaluative and penalising, is not said by anyone to be a “judicial” function. In the primary legislation (2000 Act s.195(1)(b)): §21 above), Parliament describes the Regulation 8(9) duty as:

Powers of authorities. The charging authority or licensing authority, or any of the charging authorities or licensing authorities, in relation to a charging scheme or licensing scheme under this Part may— (a) incur expenditure in or in connection with the establishment or operation of the charging scheme or licensing scheme, or (b) enter into arrangements (including arrangements for forming or participating in companies) with any person in respect of the operation of the charging scheme or licensing scheme or relating to the installation or operation of any equipment used for or in connection with the operation of the charging scheme or licensing scheme.

Under section 198:

“operation” includes enforcement.

First, if the Adjudicators’ analysis as to the Article 42A(6) restriction were legally correct, and if my contrary analysis were legally incorrect, I see that as fatal to reliance on section 192. The starting point would be that there is an express restriction which precludes a concession agreement from conferring on a third party – other than a traffic authority – the functions arising under the Regulations in respect of a charging scheme made under Part 3 of the 2000 Act. That express restriction would have arisen in the instrument empowering the making of the charging scheme (Article 42A(1)(3)), whose terms are capable of displacing 2000 Act provisions (see Article 42A(2)), as well as extending beyond them (Article 42A(3)). As I have explained (§60iii above), the DMPA fits the definition of a concession agreement. But then it would fall foul of a direct and express prohibition. And I cannot see, from that starting-point, how the general power albeit in primary legislation (section 192) could provide a back-door route to achieve what is expressly precluded in an instrument of subordinate legislation empowering the making of this RUC Scheme for these Bridges. Section 192 would, in my judgment, need to be read as subject to the restriction in Article 42A(6).

Secondly, and putting all of that to one side, I would not have accepted that in section 192(b) “in respect of the operation of the charging scheme” – including by virtue of section 198 “in respect of the enforcement of the charging scheme” – extends to the discharge of what section 195(1)(b) characterises distinctly as “the determination of disputes relating to charging schemes”. That is not because dispute-determination is “judicial”. It is, however, a distinctively described function, identified in close proximity, in the same Part of the same statute. I accept that (now that I am putting to one side the implications if I am wrong about the Article 42A(6) restriction), section 192 can explain why other functions, including the PCN Review, can be transferred to a third party by arrangement. My view of section 192 involves a contrast – a subtle one – with the broader express language of the 2011 Bridge Order: extending, in the context of a charging scheme, to the exercise of “powers” of the Council “in respect of”, and the “rights and obligations” of the Council “in relation to”, the exercise of “any power, authority or discretion” vested in or exercisable by the Council. My interpretation of the reach of section 192 would fit with Fosbeary, where Adjudicator Nicholls concluded (at §24) that an enforcement authority could not “delegate to an outside contractor the assessment of representations and the decision whether to accept those representations”; and the Statutory Guidance for Local Authorities in England on Civil Enforcement of Parking Contraventions (22 October 2022) which says: “Enforcement authorities should not contract out the consideration of formal representations”.

Whether, in all the circumstances, the Adjudicators were entitled to decide that it was a “procedural impropriety” within the meaning of the Regulations for the Council to adopt and promulgate a policy – termed the ‘Business Rules’ – to be applied to the determination of Representations made under Regulation 8 by caseworkers (Operatives) of the third-party contractor (Emovis).

My answer to this Agreed Issue is “no”.

The exercise of public discretionary power requires the decision-maker to bring his mind to bear on every case; he cannot blindly follow a pre-existing policy without considering anything said to persuade him that the case in hand is an exception.

In A it was explained in this way at §3:

In KA it was put in this way at §§126 and 217:

In Adath (at §78: cited in Humber at §41) it was explained that the principle does:

In Walmsley, Sedley LJ said (at §55):

The comprehensive guidance is provided to the agent, which acts on behalf of the Council in handling the administration of the Mersey Gateway. The Business Rules have been adopted and promulgated by the Council, and are designed to be used as a decision making tree by the agent. Annexure 2 provides confirmation of the Council’s confirmation of Business Rules in respect of content and application. The Business Rules reflect the decision of the Council that is to apply consistently in a range of straightforward circumstances. If the Business Rules cannot be applied to a motorist's particular case, or if a circumstance applicable to an individual case is identified, the matter is escalated to the Escalations Panel (“Panel”) for a decision to be made. As described below, the exercise of judgement and discretion is different. 2.5 Decisions made under the Business Rules necessarily can only be binary in nature. For instance, if a motorist asserts that they have paid the road user charge but provides no evidence of payment or evidence which does not meet the requirement of the Business Rule because it was not in the form required by the rule, this would require the agent to reject the representation. Conversely, if evidence in accordance with the requirement of Business Rule had been provided of payment, the representation is accepted… The agent does not make qualitative decisions (which are by nature discretionary)… 2.7 Where the Council has decided as a matter of policy that it wishes to exercise qualitative discretion consistently in a particular situation, for example whether evidence of a required type is required in some cases at all, related to the cause of the failure to pay (such as certain types of event), the Business Rules tell the agent what the outcome will be and the agent follows that outcome.

Also before the Adjudicators was the following description, subsequently introduced into the Business Rules themselves (Version 4.9 24.9.19), which was contained within the Case 4 NoR (11.10.19):

The process would be flawed even if the ‘agents’ were employees of the council.

The words “will not be considered” make plain that certain representations will not be taken into account. This is clear fettering of discretion and is a breach of the Council’s obligation to consider the representations made by a motorist. The statement should not be made at all as it may deter those who wish, and who are entitled, to make representations on those very grounds.

In my judgment, Adjudicator Kennedy was fully justified in raising this concern about this description of points which “will not be considered”. But whether Representations were indeed “not … considered” is a question arising on the facts of a case, including these 11 Cases. Adjudicator Kennedy was dealing with Case 1. She set out (§3.4) Mr Curzon’s Case 1 Representations (25.4.19) which were as follows:

There were here no Case 1 Representations about inadequate signage; toll booths; or sat nav/diversion. Adjudicator Kennedy set out (at §3.7) the Case 1 letter (8.5.19) – which had said “there is simply no representation for us to accept or reject” – and she went on to find a procedural impropriety. That was not because of fettering or non-consideration, but because the letter did not contain the prescribed information to constitute a compliant NoR. Adjudicator Kennedy did not then set out the reasoned contents of the subsequent Case 1 NoR (23.5.19). I have explained (§17 above) that signage was raised in the Case 4, 7 and 6 Representations where the NoR responses responded, applying Business Rule REP026. Finally, there was a Case 5 letter (22.10.19) which declined to process unauthorised correspondence, applying Business Rule ELG000 (see §12 above). The Adjudicators, rightly, did not suggest that this constituted an unlawful fetter and absence of consideration. And I can find no finding in the Joint Adjudication of a complete failure to consider Representations. That means there is no finding of “procedural impropriety” in the context of the Regulation 8(9) duty to “consider”, on the legally correct approach.

[1] This Statutory Representation is based upon a number of grounds. Unfortunately the on line submission portal is unfit for purpose. It has radio selection buttons. I was only able to make one choice. [2] There is no road user charge or penalty due under 2018 RUCSO. [3] There is no liability to pay a toll since there was nobody on the road to collect a toll before the crossing was completed. [4] The entire charging regime is unlawful and all the issues in the Curzon case XM01672-1807 are still live. [5] There is no liability to pay a “road user charge” or a penalty charge for a crossing over the ‘Mersey Gateway Crossing’. The 2018 Charging Order is invalid and unenforceable because it has errors on its face. This is expressed as ground E on the PCNs served by CAPITA on behalf of Emovis Operations Mersey Ltd who are unlawfully operating the entire charging regime on behalf of Halton Borough Council -the Charging Authority. [6] At this point in time the only legitimate way any payment can be demanded is by the operation of the tolling regime as set out in the TWA Order and the 2016 Byelaws. Halton Council have stated on numerous occasions that they are not demanding payment of tolls under the TWA Order and 2016 Byelaws (which would need to be demanded before a crossing is completed by the driver of a vehicle). It follows therefore that Halton Council are placing reliance on a defective RUCSO -The 2018 Charging Order. The 2018 RUCSO (as is the 2017 RUCSO) is of no legal effect. It is mere scrap paper. No payment of a Road User Charge or penalty charge is due, nor will it be until the charging authority remedy all the legal issues at fault. [7] The signage is unauthorised, unlawful and renders the entire scheme unlawful and unenforceable. This also is expressed as ground E on the PCNs served by CAPITA on behalf of Emovis Operations Mersey Ltd who are unlawfully operating the entire charging regime on behalf of Halton Borough Council -the Charging Authority. [8] There has been a mass of procedural improprieties. That is expressed as ground G on the PCNs served by CAPITA on behalf of Emovis Operations Mersey Ltd who are unlawfully operating the entire charging regime on behalf of Halton Borough Council -the Charging Authority. [9] The Charging Authority Halton Borough Council is acting inappropriately and illegally. It has entered into an unlawful contract with a third party private limited company (Mersey Gateway Crossings Board Limited) and abdicated its public law duties. The third party contractor has itself entered into a contract with another third party contractor (Emovis Operations Mersey Limited), which in turn has a number of sub-contractors working on its behalf. The law is clear in that it must be the Charging Authority (Halton Borough Council) that carry out the statutory duties as set out in the Transport Act 2000 and the supporting Regulations and Statutory Guidance for a Charging Authority. [10] PCNs should be issued by the charging authority. That is not the case here. PCNs are issued in automatic fashion well before the issue date used by CAPITA on the printed PCNs. Damian Curzon 03/03/2020

Notice of Rejection. [1] Thank you for your recent representation against the issue of the above mentioned Penalty Charge Notice(s) (PCN(s)).

Then this, regarding “legal grounds”:

Then this, regarding Curzon No.1:

Then this, regarding signage:

Finally, this:

The first component is that the Case 7 NoR at [4] and [5] addresses “legal grounds”, in the light of the Case 7 Representations at [2]-[3], [5]-[6] and [8]-[10]. Equivalent text is also found in the NoRs in Case 3 (12.7.19), Case 4 (11.10.19), Case 5 (20.11.19) and Case 6 (26.2.20). This text derives from Business Rule REP177, where the “Scenario” is “States not enforceable due to Procedural impropriety, Paragraph 125(v) of the TPT Adjudicator, Section 172(4) of the Transport Act 2000 or Bylaws etc”. The REP177 Response is “go into the paragraphs and then ‘Adjudicator decision’ and drag ‘Decision Part 1 to 5’ into the letter”. The product is seen here.

The next component derives from Business Rule REP182 (§31 above), which relates to Curzon No.1. That was raised in the Case 7 Representations at [4]. In response, REP182 produces the text in Case 7 NoR at [5].

The final component derives from Business Rule REP026 (§17 above), which relates to signage. That was raised in the Case 7 Representations at [7]. By way of response, REP026 produces the text seen in Case 7 NoR at [8] and [9].

This, in my judgment, is an excellent example of the Business Rules in action.

On this occasion, [Mr Curzon] was sent a NoR, again without a heading showing from whom it was from and signed ‘Representations Team’. However, the content is more considered than usual… 18.8.3. To be fair to whoever sent this, it does address the points made by Mr Curzon. However, the difficulty is that there is still no evidence that this response was referred to anyone in the Council before sending it. Agent 2 is shown as rejecting the representation and it is signed off by the ‘Representations Team’ whom I, in accordance with Adjudicator Kennedy, find to be Emovis staff. 18.8.4. Therefore, while the NoR gives reasons that deal with the representations, there is no evidence, either specifically in the case, or generally in the description of the enforcement operations, of any oversight or involvement by the charging authority, the Council. In the circumstances I find that the charging authority failed in its duty to consider the representations, which amounts to a procedural impropriety. The appeal is allowed.

This reasoning by Chief Adjudicator Sheppard does not identify any unlawful fettering in the reasons given in the Case 7 NoR. Instead, it accepts that the Operative “does address the points made by Mr Curzon” and “deal with the representations”. And “the difficulty” is not the fettering point, but rather the delegation point. There is no reasoning which explains how the Case 7 NoR does constitute an unlawful fettering, including in the 3-page Summary of the Joint Determination.

… this system [is] no substitute for reading what the motorist has said and responding appropriately …

Yet the Case 7 NoR was “this system” in action, and it did involve “reading” what Mr Curzon had said and “responding appropriately”. The Joint Determination also elsewhere came (at §5.18.9) to:

And yet the Case 7 NoR was “using these Business Rules”. In my judgment, and as Chief Adjudicator Sheppard acknowledged in the specific passage discussing the Case 7 NoR, the Operative can, lawfully, read and consider the Representations; can search the Business Rules on the computer; and, if the Business Rule fits the point being made, can give the answer and adopt the text from the Business Rule. That is what happened in Case 7. I am unable to see it as a breach of Regulation 8(9); nor an unlawful fettering.

Business Rule REP183d is referenced (§5.15):

Business Rules REP138c and REP138d are set out (§5.17.5):

Business Rule REP04 is set out (§5.18.1):

I reject entirely the establishment of the Escalations Panel as a remedy to the inadequacy of the Business Rules… I reject the assertion that the Council makes, or even lawfully authorises, discretionary decisions, either by reference to the inappropriate Business Rules or to the Escalations Panel, which is essentially not the Council at all...

In my judgment, no distinct point arises: this reasoning would be unimpeachable, had Adjudicator Kennedy been correct in law that (i) the Regulation 8(9) duty is non-delegable to the Operative; or (ii) the Business Rules necessarily involve an unlawful fettering. The point is that such unlawfulness – said to constitute a procedural impropriety – would not be avoided or cured by there being other cases referred to the Escalations Panel, nor by any prior act of approving the Business Rules. As to their March 2019 “approval” by Mr Leivesley (§29 above), Adjudicator Kennedy said this (at §§5.18.13 and 5.18.14).

I cannot see what, in this judicial review claim, turns on a finding – if that is what this is – that it is “unlikely” that Mr Leivesley gave “thorough” consideration to the Business Rules. Insofar as there is a finding here that the Business Rules have not in fact been approved by the Council, that appears to be expressed as parasitic on the non-delegability analysis which I have addressed. Finally, I have seen various versions of the Business Rules which record their having been approved by the relevant Council Officers and no issue has been argued – still less convincingly – before me that this was unlawful.

Whether in all the circumstances the Adjudicators were entitled to decide that it was a ‘procedural impropriety’ within the meaning of the Regulations that the NoRs issued by the Council under Regulation 10 breached the requirements of that Regulation and/or were relevantly inaccurate and/or misleading?

My answer to that Agreed Issue is “no”.

First, there is the meaning of and approach to “procedural impropriety” as statutorily defined (see §35 above).

Secondly, there is this passage from Camden where – in discussing “procedural impropriety” as statutorily-defined – Burnett J said at §33:

Thirdly, there is the “Controversial Costs Information” (§6 above) which was contained in each of the NoRs in these 11 Cases. It read as follows:

Fourthly, there is the duty in Regulation 10(1)(b) and the discretion in Regulation 10(2):

Fifthly, there are the costs rules in the Schedule to the Regulations at §13:

All the appeals are allowed on the grounds that there was a procedural impropriety on the part of the charging authority, Halton Borough Council… 11. The costs information on the NoR was misleading, misrepresented the Regulatory requirements and was a procedural impropriety.

Adjudicator Kennedy – with whom Chief Adjudicator Sheppard agreed (Joint Determination at §11.1) addressed this in Part 7 – having allowed the appeal by reference to the letter of 8.5.19 (§34 above) – by reference to the NoR (23.5.19). She set out (at §7.3.2) the Controversial Costs Information (§92iii above) and (at §7.3.3) §13 of the Schedule (§92v above). She said this (at §§7.3.1 and 7.3.4-7.3.6):

She then concluded (at §7.3.7):

I will start with what I accept. I agree that the Adjudicators found that the Controversial Costs Information [1a] and [1b] constitute a “misstatement”, are “wrong”, are “misleading”, and give a wrong and misleading “impression”. I agree that this characterisation of the Controversial Costs Information was at least open to the Adjudicators as a matter of evaluative judgment for the Adjudicators. This is not a hard-edged question, but one involving evaluative judgment. Even on a closer scrutiny, I would not disturb the Adjudicators’ characterisation. The Controversial Costs Information is plainly incomplete and deficient description of the costs position on appeal. It purports to describe the power to award costs in favour of an appellant and against the Council as charging authority. But it is defective. That is because paragraph [1a] is describing one basis on which costs could be awarded against the Council, while [1b] is expressed only in terms of costs against the appellant, omitting the fact that the equivalent to [1b] also constitutes a second basis on which costs could be awarded against the Council. I also agree that it was appropriate for the Adjudicators to identify this problem. It is common ground that the Council changed the standard terms of the NoR after the Joint Determination, to say in NoRs:

What I am unable to accept is that the Adjudicators were entitled for the reasons they gave to proceed from the “misstatement of the costs rules”, which was “wrong”, “misleading” and gave a wrong and misleading “impression”, to a “procedural impropriety”. In my judgment, it was and is necessary to grapple with the terms of the applicable Regulations. In my judgment, it was a material error of approach (indeed, a misdirection in law) for the Adjudicators to fail to do so; and the Adjudicators’ reasoned decision was not one which was reasonably open to them.

The starting point is that there is a duty, so far as concerns costs information in an NoR. It arises under Regulation 10(1)(b). Regulation 10(1)(c) is distinct, being concerned with the making of an appeal. The Regulation 10(1)(b) duty is to:

Turning to Regulation 10(2), this does not in my judgment impose a “requirement” that information is “appropriate”, whose breach constitutes a procedural impropriety whenever an appeal adjudicator concludes that information was not “appropriate”. Regulation 10(2) confers a discretion (“may”) to include “such other information as the charging authority considers” to be “appropriate”. The word “appropriate” is part of a subjective test governing a discretionary power. In public law, there is a duty of reasonableness, applicable to the discretionary power. It means that the information must “reasonably” be considered appropriate. It means that the discretion to include the information is that the charging authority “may, if it is reasonable to do so, include” the information.

This duty to act reasonably – in the exercise of a discretionary power – is a common law duty. It is part of what it means for the charging authority to act “lawfully”. But the question is whether it falls within “procedural impropriety” as statutorily defined. In Camden, Burnett J explained (at §32) that “procedural impropriety” as statutorily defined did not even include those “long-established concepts of fairness” of the common law described as part of “procedural impropriety” as a matter of common law in the speech of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 410-411 (see Camden at §31). Still less, in my judgment, can it include long-established concepts of reasonableness. Nor even, for that matter, long-established concepts of lawfulness. That is why adjudicators are “empowered to consider what would otherwise require a collateral challenge, but that they may do so only within the confines of the … regulation” (Camden §47) and “only in so far as the regulations themselves allow it” (Camden §52). As Burnett J put it (§52): “There is no independent roving commission to identify public law failings”. In my judgment, the reasonableness – and reasonable appropriateness – of Regulation 10(2) discretionary information would be a public law falling outside the statutory definition of “procedural impropriety”. No reasoning of the Adjudicators persuades me otherwise.

Finally, I cannot read the observation of Burnett J in Camden at §33 (§92ii above) as turning an unreasonable exercise of discretionary power, because it involves information which is misleading in content, into a failure to comply with a “requirement” of the Regulations. What Burnett J was addressing was Counsel’s submission that “a step will not have been taken in accordance with the statutory scheme if a requirement has been contradicted or undermined”. It was in that context that Burnett J said it was “possible” for “contradictory, confusing or obscure language” to result in a failure to observe a “requirement”. The point can be illustrated by returning to Regulation 10(1)(b): the duty (and so “requirement”) to “indicate the nature of an adjudicator's power to award costs against any person appealing”. The “nature” of that “power” is found in Schedule §13(1)(a): where the adjudicator considers that the appellant has acted frivolously or vexatiously or that their conduct in making or pursuing an appeal was wholly unreasonable. That “requirement” could be stated, described or elaborated upon in a way which “contradicted or undermined” it, by “contradictory, confusing or obscure language”. Suppose the Controversial Costs Information at [1b] had said “costs may be awarded against you if an adjudicator considers your appeal frivolous or vexatious or the making or pursuing of the appeal was wholly unreasonable” and had then added this: “an appellant whose appeal does not succeed can therefore expect to have costs awarded against them”. That would be an example of language which contradicts and undermines the requirement. This description of what would constitute a “procedural impropriety” addresses Mr Rogers KC’s invitation to confront the logic and consequences of extreme misinformation. Burnett J’s observation does not in my judgment support, absent the contradiction or undermining of a requirement, a procedural impropriety by reference to the reasonable appropriateness of other information under the discretionary power in Regulation 10(2). For all these reasons, my answer to the Agreed Issue on this part of the case is “no”.

The concept of a “procedural impropriety” in Regulation 8(3)(g) of the Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) Regulations 2013 includes matters which occur after the filing of Representations under Regulation 8(9), with the result that it may constitute a ground upon which adjudicators can allow an appeal under Regulation 11(6).

In a case where Regulation 8(10) has been found to apply, adjudicator’s findings would show that the decision to allow the appeal could have been made on the basis of Regulation 8(3)(e).

In all the circumstances, the Adjudicators were not entitled to decide that it was a ‘procedural impropriety’ within the meaning of the Regulations: (a) for the Council to delegate the consideration of Representations under Regulation 8(9) to a third-party contractor; (b) for the Council to adopt and promulgate a policy – termed the ‘Business Rules’ – to be applied to the determination of Representations made under Regulation 8 by caseworkers (Operatives) of the third-party contractor (Emovis); or (c) that the Notices of Refusal (NoRs) issued by the Council under Regulation 10 breached the requirements of that Regulation and/or were relevantly inaccurate and/or misleading.

On i), I agree with the Adjudicators and Mr Curzon. On ii), I agree with Mr Curzon. On iii) I agree with the Council.

This has been an unusual case. There were difficult questions of law, with far-reaching implications, most of all for individual motorists arising in the context of a multitude of PCNs. Mr Curzon was acting in person. In pre-action correspondence and its judicial review grounds, the Council claimed that these were issues which required authoritative resolution in the High Court. The Adjudicators positively agreed, positively supported that course, and expressly invited the Court to grant permission for judicial review. The Adjudicators acted, throughout, as a judicial body welcoming an informed adjudication. They were supportive of informed and authoritative resolution, from first to last. One illustration of this is that the Council produced evidence which was not relied on before the Adjudicators; and the Council raised legal arguments not relied on before the Adjudicators, including late changes of direction. But no ‘fresh evidence’ or ‘pleading’ point was ever taken by the Adjudicators.

Absent the Adjudicators’ willingness, through legal representatives, to articulate counterpoints for the Court to consider, judicial determination of these difficult questions would very significantly have been undermined. I appreciated that at the substantive hearing. As the Judge dealing with the case, I actively encouraged Mr Rogers KC and his team to assist me. I wanted to be able properly to ‘stress-test’ Mr Buley KC’s arguments. In theory, I could have sought to insist that Mr Buley KC – facing a litigant in person as Interested Party and a neutral Defendant – to spend a hearing day (perhaps a further hearing day), identifying and then developing all the arguments which he would have made, had he been Leading Counsel on the other side of every argument. In theory, absent the Adjudicators’ assistance, I could have considered asking for an amicus. In substance, in the circumstances, Mr Rogers KC has appeared “in the role of an amicus” (Davies at §37). The Adjudicators at no stage “ceased … to assist the court” (§58). They were (Davies §22):

The Adjudicators’ legal representatives have, moreover, assisted the Court (and Mr Curzon) in exposing what I concluded was a legally incorrect position taken by the Council’s position on the distinct (and, in my judgment, severable) temporal jurisdiction point. That loomed large in this case. It would have given the Council a direct ‘one-step’ win. But it was an issue on which the Council was wholly unsuccessful. Moreover, the decisions regarding Case 1 have not been quashed. The delegation route (the 1997 Act) relied on before the Adjudicators was abandoned (§59 above). The 2000 Act s.192 argument did not succeed (§§64-65 above).

Finally, and importantly, this is not a case like Worthington. On my approach to costs, nobody is or would be ‘having it both ways’. Here, if the claim for judicial review had failed overall, I would have been refusing any application for costs against the Council and in favour of the Adjudicators, had such a costs application been made. Mr Buley KC would, in such a scenario, have been able to point convincingly to the ‘neutrality’ of the Adjudicators’ position, in appearing “to assist the Court”.