Karen Lawrence, R (on the application of) v London Borough of Croydon

On 25 March 2024, the London Borough of Croydon made the Croydon (Traffic Movement) (Nos. 1-6) Orders 2024. The orders were made by Croydon as the traffic authority for roads in the borough pursuant to s.6 of the Road Traffic Regulation Act 1984 (the 1984 Act). They made permanent six Low Traffic Neighbourhood schemes that had been trialled on a temporary basis since 2020. The schemes close off certain roads. Originally roads were closed off physically but latterly the closures have been enforced by cameras and mitigated by a residents’ permit scheme. Croydon claims that the temporary schemes were successful in leading to an improvement in road safety and air quality.

Karen Lawrence lives and works in Croydon. She is deeply concerned by the impact of the schemes and, together with other like-minded residents, formed the local pressure group, Open Our Roads. By this claim, Ms Lawrence argues that the schemes are unlawful in that Croydon exercised its statutory power to make the orders for an unlawful purpose, namely to raise revenue. Further, she argues that the authority breached residents’ legitimate expectation that the schemes would be reviewed in accordance with statutory objectives under the 1984 Act. Croydon resists the claim.

Before, however, I can address the merits of that challenge, it is first necessary to untangle some knotty procedural issues. This case has become something of a procedural dog’s breakfast:

For the reasons explained in this judgment, I conclude that:

By paragraph 35 of Schedule 9 to the 1984 Act, Ms Lawrence was required to “make” her application to question the validity of the orders within 6 weeks from the date when they were made. It is common ground that the last day for making the application was 7 May 2024. On that day, the claimant emailed her claim form to the King’s Bench Division of the High Court for service. Further, she served an unsealed copy of the claim form while waiting for the court to provide her with sealed copies.

The claim form was sent to the general court office for the King’s Bench Division notwithstanding that it identified on its face the fact that it was a Planning Court claim. The papers were eventually passed to the Planning Court which, on 21 May 2024, sealed the claim form showing it as having been issued on that date. The sealed claim form was then served under cover of a letter sent that same day. It was received by Croydon on 24 May 2024.

On 6 June 2024, Croydon filed its Acknowledgment of Service indicating that it disputed jurisdiction and intended to apply to strike out the claim on the ground that it had been made out of time. By an application made on 20 June 2024, Croydon applied to strike out the claim on the sole ground that the claim had not been filed in time. It argued that the claim had not been made until 21 May 2024 and was therefore two weeks out of time.

That then was the application heard by Linden J. By his judgment handed down on 2 December 2024, the judge found that the claim was filed on 7 May 2024 and therefore dismissed the application. As I have already observed, Linden J was, however, alive to the possibility that Croydon might have a better argument. At paragraph 43 of his judgment, the judge recounted the narrow focus of the application before him and added:

“However, as some of the authorities referred to in her skeleton argument are concerned with service, and Mr Jha’s statement also included evidence which was relevant to service, at the outset of her oral submissions I checked that my understanding that the issue of service was not before the court was correct. Ms Kabir Sheikh said that the basis for her application was that no claim was ‘made’ for the purposes of the relevant statutory provision because no claim had been filed, although she said that the question of service was ‘relevant’. It was not clear why. She indicated that an issue in relation to service might arise in a further application if I was against her on her submission that the Claim was out of time. However, if that was my decision she would need to take instructions as to whether the point was taken by the Defendant. As matters stood, there was no application before the court (from either side) in respect of service.”

Thereafter, no replacement acknowledgment of service was filed and no fresh application was made to strike out the claim for want of service. Instead, the matter simply continued towards the final hearing listed on 19 June 2025. Bundles running to 1,591 pages were prepared and lodged, and skeleton arguments were exchanged.

By her skeleton argument dated 12 June 2025, Saira Kabir Sheikh KC, who appeared for Croydon, argued for the first time that the court did not have jurisdiction to hear this claim because the claim was not served by 7 May 2024. Lest she was wrong about jurisdiction, Ms Kabir Sheikh addressed the case on its merits. By a revised skeleton argument dated 16 June 2025, the claimant responded to the local authority’s new jurisdiction argument.

Kevin Leigh and Laura Collignon, who appeared pro bono for Ms Lawrence, took four points in response:

There was no merit in the first, second and fourth arguments, and the third argument was put in very generic terms. No argument was then made under Part 11 and no submission was made as to the effect in law of having failed to bring forward the full jurisdictional challenge before Linden J. In the absence of such fuller argument, I was unimpressed with the complaint of delay given the fact that I had concluded that the claim form had not been validly served within the time allowed by Practice Direction 54D and that there were no proper grounds for an extension of time. Accordingly, I announced at the conclusion of the hearing on 19 June that the claim would be struck out but reserved my reasons.

While working on my draft judgment in early July, I became concerned that the third argument had not been fully developed and that had Mr Leigh and Ms Collignon considered Part 11, there might have been a proper basis for arguing that it was not open to Croydon to pursue what was in effect a second jurisdiction challenge.

My clerk therefore emailed counsel in the following terms on 4 July 2025:

“It will be recalled that, at the recent hearing, the [Defendant] invited the court to dismiss this claim on the basis that it had not been served in accordance with paragraph 5.2 of Practice Direction 54D. Such outcome was resisted on four bases:

-

First, that this was not a Planning Court claim within the meaning of r.54.21 such that time ran pursuant to r.54.7 and not under PD54D.

-

Secondly, that the court should not in any event apply the Good Law and Rogers line of authorities to the time limit for serving a Planning Court claim pursuant to paragraph 5.2.

-

Thirdly, that it was now too late to take the time point.

-

Fourthly, that even if bound to follow the approach in r.7.6, the court should in any event extend time for service.

At the conclusion of the argument, the judge indicated that he rejected these arguments and that the claim must be dismissed.

The third point was argued by reference to general principles of fairness and delay, and Croydon’s failure to make a fresh strike-out application as it had indicated that it might to Linden J. No counsel, however, drew the court’s attention to Part 11 of the Civil Procedure Rules 1998 or argued whether, even if the claim had not been served in accordance with PD54D, the [Defendant] was to be treated as having submitted to the court’s jurisdiction. Having now considered this issue for himself, Mr Justice Pepperall invites further submissions. The judge’s preliminary view is that Part 11 raises the following further issues:

1.

Whether, despite the fact that the court has announced its decision, it is now appropriate for the judge to receive further argument and reconsider that decision in circumstances where Part 11 was not previously drawn to his attention, no judgment has been handed down, and no order has been sealed (as to which see the Re Barrell Enterprises line of authorities).

And if so:

2.

Whether, even if this claim was not validly served by 7 May 2024 in accordance with paragraph 5.2 of PD54D, the [Defendant] was required by r.11(4) to make any application to dispute jurisdiction on the ground of late service by 20 June 2024, being 14 days after it filed its Acknowledgment of Service disputing jurisdiction.

3.

Whether the effect of Linden J’s dismissal of the application that was in fact made on 20 June 2024 was that the original Acknowledgment of Service ceased to have effect pursuant to r.11(7)(a).

4.

Whether the [Defendant] filed a replacement Acknowledgment of Service in accordance with r.11(7)(b).

5.

Whether, following the dismissal of the application that was in fact made on 20 June 2024 and in light of Part 11, it remains open to the [Defendant] now to challenge the jurisdiction of the court on an alternative ground or whether the [Defendant] is to be treated as having submitted to the jurisdiction of the court.

Before addressing the detail of that, the judge first seeks the parties’ urgent submissions as to how they would wish to address these further issues. The judge therefore directs that the parties should by 4pm on Thursday 10 July 2025 lodge brief written submissions limited to the following points:

-

First, whether they wish to provide further submissions on these five issues solely in writing or at an oral hearing.

-

Secondly, in the event that the court were to direct a further oral hearing:

(a)

their time estimate for such hearing;

(b)

their availability for such a hearing in the last week of this term and in the Michaelmas term; and

(c)

their suggested directions for the orderly exchange and lodging of further skeleton arguments and authorities in respect of these issues.

-

Thirdly, in the event that the court were to direct that these issues be addressed solely in writing, their suggested directions for the orderly exchange and lodging of further skeleton arguments and authorities in respect of these issues.”

Counsel asked that the matter be listed for a further hearing. While hearing dates were offered in July, October and November 2025 – and indeed the case was originally relisted in October – the parties ultimately asked to wait until there could be an in-person hearing in London in December.

I then heard further argument on these procedural issues and on the merits of the case. On this occasion, I reserved judgment without any indication as to my decision.

Ms Kabir Sheikh argued that this is a Planning Court claim within the meaning of r.54.21 and that it was subject to paragraph 5.2 of Practice Direction 54D which provides:

“The claim form must be filed at the Administrative Court and served within the time limited by the relevant enactment for making the application.”

Rule 54.21(2) provides that a Planning Court claim is a claim for judicial review or statutory challenge which either involves any of the nine matters listed in r.54.21(2)(a) or which has been issued in or transferred to the Planning Court. Ms Kabir Sheikh particularly relied on r.54.21(2)(a)(iv) which provides:

“(2)

In this Section, ‘Planning Court claim’ means a judicial review or statutory challenge which–

(a)

involves any of the following matters– …

(iv)

highways and other rights of way; …”

The claimant’s position has evolved:

Ms Kabir Sheikh responded that the claim was clearly a challenge involving highways and was therefore a Planning Court claim. In respect of Ms Collignon’s interpretation point, she submitted that a highway is a way over which the public has a right of passage. Accordingly, she argued that a highway is by definition a public right of way and the words “and other rights of way” do not limit the proper interpretation of the word “highways”.

In my judgment, there is nothing in the argument that this is not a Planning Court claim:

Accordingly, I rejected the argument that this was not a Planning Court claim. At the hearing in June, it was common ground that the consequence of such a finding was that this claim was required to be served by 7 May 2024. In fact it might well be that in practice service had to be effected by 3 May:

The claim form was only served in unsealed form on 7 May 2024. It was common ground that that was not effective service since the rules require the service of the sealed claim form: Ideal Shopping Direct Ltd v. Mastercard Inc. [2022] EWCA Civ 14, [2022] 1 W.L.R. 1541.

Here, the claim was not issued until 21 May and the sealed claim was then served on 24 May 2024. In view of my conclusion that this is a Planning Court claim and the concession made at the June hearing that service was therefore required to be effected by 7 May 2025, that was out of time. I deal with whether Ms Lawrence can resile from that concession at paragraphs ‎60-‎65 below.

Ms Lawrence therefore needed a retrospective extension of time for service of the claim form. In a Part 7 claim, such an application would engage r.7.6(3), which provides:

“If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if—

(a)

the court has failed to serve the claim form; or

(b)

the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

(c)

in either case, the claimant has acted promptly in making the application.”

In R (Good Law Project Ltd) v. Secretary of State for Health & Social Care [2022] EWCA Civ 355, [2022] 1 W.L.R. 2339, the Court of Appeal held that an application for an extension of time for service of a claim for judicial review falls to be decided pursuant to the court’s general power to extend time under r.3.1(2)(a) rather than the bespoke rules in r.7.6 as to when the court might extend the time specified in r.7.5 for serving a Part 7 claim. Nevertheless, the court clarified that in exercising its discretion pursuant to r.3.1(2)(a), the court should follow the principles in r.7.6(3) so that it should not retrospectively extend time for service of a claim for judicial review unless the claimant had taken all reasonable steps to comply with r.54.7 (which requires judicial review claims to be served within 7 days after the date of issue) but had been unable to do so.

In Good Law, Carr LJ (as she then was) said, at [83]:

“It is important to emphasise (again) that valid service of a claim form is what founds the jurisdiction of the court over the defendant. Parties who fail, without good reason, to take reasonable steps to effect valid service, in circumstances where a relevant limitation period is about to expire, expose themselves to the very real risk of losing the right to bring their claim.”

Having found that r.7.6 was not of direct application to a judicial review claim, Carr LJ rejected the argument that the question of a retrospective extension of time for service of a judicial review claim should be approached on the basis that it was an application for relief from sanctions engaging the well-known principles established in Denton v. TH White Ltd [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926 and applied to applications under r.3.1(2)(a) in R (Hysaj) v. Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 W.L.R. 2472. She explained, at [79], that the Denton line of cases is concerned with procedural failures during the life of a claim and not the foundational issue of a failure to serve the originating process. She then concluded, at [80]:

“The question then is how the discretion in r.3.1(2)(a) to extend time for service of a judicial review claim should be exercised. There is no good reason why the requirements under [r.7.6(3)] for a retrospective extension of time to serve a Part 7 or Part 8 claim form should not apply equally to a judicial review claim, and every reason why they should. Indeed, Good Law’s skeleton referred to its application for an extension of time under r.3.1(2)(a) being made by analogy to r.7.6. As set out above, promptness is an essential requirement in any judicial review claim, and particularly in a procurement challenge. The time limit of seven days for service of a judicial review claim is (far) shorter than the time limits for service of Part 7 and Part 8 claims. It would be wholly counter-intuitive in those circumstances for the extension regime for judicial review claims to be more lenient than that applicable to Part 7 and Part 8 claims.”

While the time for service of a judicial review claim is, as Carr LJ noted, far shorter than that allowed under r.7.5, the time for service in each case runs from the issue of proceedings. Here, however, the effect of paragraph 5.2 of Practice Direction 54D is that the time for service of an application to quash an order or scheme in the Planning Court runs not from the date of issue but the date of the order or scheme being challenged. Indeed, the obligation is both to file and serve the claim by the statutory time limit of six weeks for making the application.

This case is therefore more closely analogous to a claim for planning statutory review pursuant to s.288 of the Town and Country Planning Act 1990 where the time for service also runs from the date of the decision under challenge and is coterminous with the time for filing the claim:

In Secretary of State for Levelling Up, Housing & Communities v. Rogers [2024] EWCA Civ 1554, [2025] 1 W.L.R. 2759, the Court of Appeal confirmed that the approach in Good Law applied equally to applications to extend time for service of a claim form seeking planning statutory review pursuant to s.288. Again, r.7.6 is not directly applicable since the time for service of a claim for planning statutory review is governed by the Practice Direction and not r.7.5 but, by parity of reasoning, the approach in Good Law is to be followed. In Rogers, Sir Keith Lindblom stressed, at [70], that the interests of finality in planning decisions are of vital importance.

Ms Collignon is right to argue that Rogers and the line of first-instance decisions considered by the Court of Appeal in that case involved claims under s.288 in which the time limit for service was set by paragraphs 1.2 and 4.11 and not by paragraph 5.2 of Practice Direction 54D. Further, no decision has been brought to my attention in which the court has specifically applied Good Law and Rogers to Planning Court claims governed by paragraph 5.2. Nevertheless, it is in my judgment clear that any application for a retrospective extension of the time allowed for service by paragraph 5.2 of Practice Direction 54D falls to be determined pursuant to r.3.1(2)(a) but that the court should apply by analogy the approach in r.7.6(3):

It is, however, necessary to address Ms Collignon’s submission that the application of r.7.6 by analogy has the potential to operate harshly in the particular circumstance where a claim issued very close to the statutory deadline only becomes a Planning Court claim (and therefore subject to the strict time limit in paragraph 5.2) by reason of a direction of the Planning Liaison Judge under r.54.21(2)(a)(ix) or upon the transfer of proceedings under r.54.21(2)(b). Of course, the point does not arise since, upon my findings above, this is a Planning Court claim both because it involves highways (r.54.21(2)(a)(iv)) and because Ms Lawrence herself chose to issue her claim in the Planning Court (r.54.21(2)(b)). Nevertheless, Ms Lawrence is entitled to argue that the problem posed by post-issue directions and transfers should be grappled with before the court simply applies the Good Law approach to all Planning Court claims.

While the point must of course be decided definitively in a case in which it arises directly, I venture the obiter view that it is a bad point:

In the course of their oral submissions in June, Mr Leigh and Ms Collignon argued that the court should in any event extend time for service in this case. There was, however, no application notice before me. More fundamentally, applications under r.7.6 are required to be supported by evidence. Here, no evidence whatever had been placed before the court of the steps taken to comply with the requirement to serve the claim form by 7 May 2024. That was of course fatal to any retrospective application for an extension of time for service.

Further, and in any event, the court cannot grant an extension of time for service unless also satisfied that the claimant has acted promptly in making the application. I reject Ms Collignon’s argument that time runs from the date when Croydon raised the service issue in their skeleton argument. This extension of time has been needed since it became clear on 7 May 2024 that the claim form would not be served by the time allowed by the Practice Direction. As Ms Collignon rightly conceded, an application to extend the time for service made at a hearing more than 13 months after the deadline expired was plainly not made promptly.

Accordingly, I reject Ms Lawrence’s oral application to extend the time for service.

In arguing in the June hearing that it was then too late to challenge service, Ms Collignon submitted that notwithstanding the exchange between Linden J and Ms Kabir Sheikh at the hearing in November 2024, Croydon had failed thereafter to make any application to strike out the claim and had only taken the point in its skeleton argument filed in advance of the hearing. She referred to guidance that all applications should be made as soon as possible, but cited no other rules or authorities on this argument.

Ms Kabir Sheikh referred to Lord Sumption’s observations in Barton, at [22], that there is no obligation to warn a claimant that service was defective so that the claimant can rectify the issue within what is left of the limitation period. Here, that wasn’t realistic anyway. The defective service was made on the last day possible and Mr Jha responded that same day pointing out that the claim form served had not been sealed.

Ms Kabir Sheikh briefly touched on Part 11. She observed that Croydon had ticked the box indicating an intention to dispute jurisdiction and submitted - without any analysis or further reference to that rule or to decided cases - that there was nothing in Part 11 that ousted Croydon’s right to take the jurisdiction point or required it to make an application. Neither proposition is in fact tenable.

My initial view was that such delay did not defeat the fundamental fact that service of the claim is the foundation of the court’s jurisdiction. Accordingly, I announced in open court that the claim was to be dismissed but reserved my judgment. It was, as I have already explained, as I started to write my judgment that I realised for the first time that no submissions had been advanced as to the effect of rr.11(4) and (7), and that such rules might have a bearing on the question of whether Croydon was entitled to take the service point at the June hearing.

I therefore invited argument as to whether the court should in this case reopen the argument and reconsider the issue of whether the service point remains open to Croydon.

At the December hearing, Ms Collignon submitted that it was unfortunate that the Part 11 argument had been overlooked but that Ms Lawrence was grateful that the court had raised the issue. She explained that this situation might have arisen because the service point was itself taken fairly late in the day as the parties were preparing for the final hearing of this claim. Ms Collignon submitted that the new point directly goes to whether Ms Kabir Sheikh had been right to argue that there was nothing that prevented a defendant from taking the service point at the hearing in June. She argued that the court should therefore allow the argument to be reopened and that, if I were to refuse to hear further argument, I would risk making an error of law that would have to be corrected on appeal. Further, Ms Collignon observed that the overriding objective of doing justice is best met by properly applying the law even if it had been overlooked at the June hearing. While she accepted that that omission had led to an extra hearing, she argued that that had caused very little prejudice or additional cost. Ms Collignon accepted the public interest in finality but observed that this was not a case where anyone had acted on the basis of the indication given at the end of the June hearing.

Ms Kabir Sheikh accepted that the court is able to reopen its decision but stressed the principle of finality which, she argued, weighed heavily against the exercise of such jurisdiction. She relied on the Supreme Court’s decision in AIC. She submitted – although no evidence had been filed – that my earlier decision had been reported by “Inside Croydon”. She also complained at the delay since the June hearing before the matter could be reargued, during which time she argued Croydon will have been issuing further fines. Ms Kabir Sheikh submitted that the overriding objective of dealing with the case at proportionate cost pointed to upholding the finality of the decision announced at the conclusion of the June hearing. Such course would, she submitted, ensure that the parties were on an equal footing, save costs, and ensure that the case was dealt with expeditiously and fairly. Further, she disputed that she had hijacked the June hearing; indeed, she submitted that the service point had been heralded in advance.

In Re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8, [2013] 1 W.L.R. 634, the Supreme Court held that a judge’s power to reverse his or her decision at any time before the order was drawn up and perfected was not limited to exceptional circumstances. The judge in that case had heard evidence in a fact-finding hearing in care proceedings. The central issue was whether the mother or father had been responsible for non-accidental injuries suffered by a baby. The judge gave an oral judgment on 15 December 2011 in which she found that the father had been the perpetrator. Given the paucity of reasoning, the father’s counsel asked the judge to address further matters in an addendum to her judgment. On 15 February 2012, the judge handed down a “perfected judgment” in which she now concluded that the evidence did not allow her to make any finding as to which of the parents had been responsible for injuring the baby. An order had been drawn up recording the judge’s December finding as to the father’s responsibility for the injuries but that order was not formally sealed until 28 February 2012 by which time the judge had changed her mind.

In giving judgment in the Supreme Court, Baroness Hale stated that it had long been the law that judges are entitled to reverse their decisions at any time before their orders are drawn up and perfected. The question was whether the judge ought to have exercised the undoubted discretion to reopen her judgment.

The origin of the proposition that exceptional circumstances might be required can be traced to Russell LJ’s judgment in Re Barrell Enterprises [1973] 1 W.L.R. 19, where he said, at pages 23-24:

“Where oral judgments have been given … the successful party ought save in the most exceptional circumstances to be able to assume that the judgment is a valid and effective one.”

In Re Blenheim Leisure (Restaurants) Ltd (No. 3), The Times, 9 November 1999, Neuberger J identified a plain mistake by the court, the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law, and the discovery of new facts after judgment was given as examples of when the jurisdiction might be exercised.

While the majority of the Court of Appeal affirmed the so-called “Barrell limitation” in Stewart v. Engel [2000] 1 W.L.R. 2268 (Clarke LJ dissenting), Lady Hale observed in Re L, at [27], that the courts across a number of cases had struggled with that statement of principle “coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case”. In rejecting the need for exceptional circumstances, Lady Hale continued:

“I would agree with Clarke LJ in Stewart v. Engel that [the judge’s] overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon his decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in Re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But those are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.”

The Supreme Court considered the issue again in AIC Ltd v. Federal Airports Authority of Nigeria [2022] UKSC 16, [2022] 1 W.L.R. 3223. Citing Lady Hale’s observation in Re L that the Court of Appeal had been right to stress the importance of finality, Lords Briggs and Sales added, at [26], that the weight to be attached to the importance of finality may vary depending on the nature of the case and the nature of the decision. In AIC, the court acknowledged the importance of not deciding child welfare proceedings such as Re L on false facts. By contrast, AIC was commercial litigation and the court emphasised, at [28], the strong public interest in the finality of litigation in the context of the overriding objective in the Civil Procedure Rules.

At [30], Lords Briggs and Sales said:

“… the task of a judge faced with an application to reconsider a judgment and/or order before the order has been sealed is to do justice in accordance with the relevant overriding objective”

They added that the overriding objective implicitly affirms and reinforces the long-standing principle of finality. Indeed, they cited Lewison LJ’s comment in FAGE UK Ltd v. Chobani UK Ltd [2014] F.S.R. 29, at [114]:

“The trial is not a dress rehearsal. It is the first and last night of the show.”

While making plain that there was no procedural straitjacket, the Supreme Court explained, at [32]:

“… on receipt of an application by a party to reconsider a final judgment and/or order before the order has been sealed, a judge should not start from anything like neutrality or evenly balanced scales. It will often be a useful mental discipline, reflective of the strength of the finality principle, for the judge to ask herself whether the application should even be entertained at all before troubling the other party with it or giving directions for a hearing.”

The Supreme Court said that there is no definitive bright-line rule but that strong or compelling weight should be given to the finality principle. Ultimately an evaluative decision has to be made, but it has to reflect and respect the importance of the principle of finality. Lords Briggs and Sales concluded, at [39]:

“The question is whether the factors favouring reopening the order are, in combination, sufficient to overcome the deadweight of the finality principle on the other side of the scales, together with any other factors pointing towards leaving the original order in place.”

At [45], the Supreme Court observed that the deputy judge in that case had wrongly started with an even balance whereas the proper starting point was “heavily loaded against the applicant from the outset”.

AIC was a very different case from Re L. In AIC, the defendant had obtained the adjournment of proceedings to enforce an arbitration award pending determination of proceedings in Nigeria to challenge the award upon condition that the defendant provide a guarantee to secure the award. The date for compliance was extended but yet the defendant still failed to comply with the condition. The deputy judge therefore gave the claimant leave to enforce the award. Later that very day, and before the judge’s order was sealed, the guarantee was belatedly provided. The deputy judge set aside her earlier order giving leave to enforce. AIC was not therefore a case where new evidence or legal argument showed that the court had reached its original decision in error; rather the defendant sought the indulgence of being able to rely on its own belated compliance with the order to provide a guarantee and therefore events that happened after the original hearing. Nevertheless, after detailed consideration of the commercial position between the parties, the Supreme Court restored the deputy judge’s decision to set aside her earlier order.

Turning to the case before me, the starting point is that the principle of finality heavily loads the scales against allowing the argument to be reopened. In weighing that issue, I take into account the following matters:

Against those matters, I consider that the court must weigh the identification of a new potentially decisive argument. As to that:

In my judgment, the balance in this case comes down in favour of reopening my initial conclusion that there was no merit in the argument that the service point had been taken too late and therefore hearing further argument as to the application of Part 11.

At the hearing in December, Ms Collignon argued that the time limit relied on by Croydon for service of this claim is contained in Section V of Practice Direction 54D but that such section is only applicable where the Planning Court claim falls within paragraph 5.1(1), which provides:

“This section applies where the High Court has jurisdiction under any enactment, on the application of any person to quash or prohibit any—

(a)

order, scheme, certificate or plan of;

(b)

amendment or approval of a plan of;

(c)

decision of;

(d)

action on the part of,

a Minister or government department.”

Ms Collignon argued that the section is therefore only applicable where the challenge is to a decision of central government. Here the claim is in respect of an order made by a traffic authority and not a minister or government department. She therefore submitted that this claim was never subject to the service requirement in paragraph 5.2 of Practice Direction 54D with the consequence that the claim was validly served in accordance with r.54.7 because it was served within 7 days of issue.

This new point was taken shortly before the December hearing. Croydon was prejudiced in that Ms Kabir Sheikh had not been able to research the point properly. She did, however, observe that there is a tension between Ms Collignon’s argument that Section V is only applicable to orders or schemes made by a minister or central government department and paragraph 5.5 which provides:

“Where the application relates to an order made under the Road Traffic Regulation Act 1984, the claim form must be served—

(a)

if the order was made by a Minister of the Crown, on that Minister;

(b)

if the order was made by a local authority with the consent, or following a direction, of a Minister of the Crown, on that authority and also on that Minister;

Although I do not have the benefit of full argument, I note that paragraph 5.5 therefore expressly envisages that Section V of the practice direction is applicable in the case of an application that relates to an order that was made under the 1984 Act by a local authority other than with the consent of or at the direction of a minister.

In my judgment, it is not appropriate to entertain Ms Collignon’s new argument. I had not invited further argument on that issue and there was no application that I should reopen my decision more generally or that the parties should have permission to present further argument as to the applicable service regime in this case. In my judgment, it is important that my focused request for further submissions as to the effect of Part 11 on the discrete issue of whether it was open to Croydon to take the service point at the June hearing should not be allowed to degenerate into a rehearing of any issue on which either party might wish to advance further submissions. Further, the new point was taken at the eleventh hour with the consequence that Ms Kabir Sheikh was not able to deal with the point properly during the course of the December hearing. Allowing further argument on that issue would have required an adjournment or at the very least a further round of written submissions, and would have allowed the June hearing truly to have become nothing more than a dress rehearsal.

In any event, for the reasons that I explain below, the new point is academic since I have concluded that it was not open to Croydon to take the jurisdiction point at the June hearing.

Ms Collignon argued that the clear effect of r.11(5) was that Croydon was to be treated as having accepted the court’s jurisdiction. She relied on the decisions in Hoddinott and Koro. Further she distinguished cases such as Bellway in which the service issue had been raised at a very early stage. She argued that it was not open to Croydon to challenge jurisdiction after the dismissal of its initial application, and that, had Croydon wished to pursue a second challenge, it would have had to file a further acknowledgment of service.

Ms Kabir Sheikh argued that Croydon’s initial strike-out application had been made pursuant to r.3.4 and not Part 11 such that r.11(7) never applied and Croydon could rely on the fact that it had disputed jurisdiction in its acknowledgment of service. She argued that Hoddinott was not authority for the proposition that a defendant has to file an acknowledgment of service in order to dispute jurisdiction, and that the applicable law is now summarised in Bellway and Robertson. Ms Kabir Sheikh stressed that valid service is the foundation stone of the court’s jurisdiction.

Part 11 of the Civil Procedure Rules 1998 sets out the procedure to be followed where a defendant wishes to dispute the court’s jurisdiction to try a claim. Rule 11 provides:

“(1)

A defendant who wishes to—

(a)

dispute the court’s jurisdiction to try the claim; or

(b)

argue that the court should not exercise its jurisdiction,

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

(2)

A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

(3)

A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

(4)

An application under this rule must—

(a)

be made within 14 days after filing an acknowledgment of service; and

(b)

be supported by evidence.

(5)

If the defendant—

(a)

files an acknowledgment of service; and

(b)

does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim.

(6)

An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including—

(a)

setting aside the claim form;

(b)

setting aside service of the claim form;

(c)

discharging any order made before the claim was commenced or before the claim form was served; and

(d)

staying the proceedings.

(7)

If on an application under this rule the court does not make a declaration—

(a)

the acknowledgment of service shall cease to have effect;

(b)

the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and

(c)

the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.

(8)

If the defendant files a further acknowledgment of service in accordance with paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to try the claim.

(9)

If a defendant makes an application under this rule, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file—

(a)

in a Part 7 claim, a defence; or

(b)

in a Part 8 claim, any other written evidence.”

On its face, r.11 provides a highly prescriptive procedural code for the resolution of disputes as to jurisdiction:

Accordingly, there is no provision within Part 11 for a second challenge to jurisdiction. The machinery requires a defendant who challenges jurisdiction to bring forward his whole challenge at the time of the application made pursuant to rr.11(1) and (4). In my judgment, there are good policy reasons for that approach since the court would not be dealing with a case justly and at proportionate cost if it allowed a series of jurisdictional challenges on separate grounds to be argued one after the other, thereby delaying the resolution of the proceedings and leading to the risk of bifurcated jurisdictional appeals.

I reach that conclusion as a matter of general principle but am confirmed in my view by Popplewell J’s obiter observations in IMS SA v. Capital Oil & Gas Industries Ltd [2016] EWHC 1956 (Comm), [2016] 4 W.L.R. 163. In that case, the defendant first challenged jurisdiction on the grounds that it had not been validly served. Having failed in that endeavour, it then sought to challenge jurisdiction on forum non conveniens grounds. Popplewell J identified that the juridical basis for the two challenges were different and that each would lead to different relief. He too considered the terms of r.11 and concluded, at [35], that it was a unitary code for both types of jurisdiction challenge and that there was no procedure for sequential challenges. He also found, at [36], that such conclusion accorded with the overriding objective. He accepted a submission, at [38], that the defendant would also need an extension of time pursuant to r.11(4) to bring the second jurisdiction challenge and that the court would have to consider whether the second application was an abuse. Nevertheless, Popplewell J did not decide the second challenge on any of these bases:

In Hoddinott v. Persimmon Homes (West) Ltd [2007] EWCA Civ 1203, [2008] 1 W.L.R. 806, the claimants obtained a without-notice extension of time for service of their claim form which they then served in accordance with such extension. The defendant did not use the Part 11 procedure but applied to set aside the without-notice order on the grounds that there had been no good reason for the extension sought. Subsequently, the defendant filed an acknowledgment of service that did not indicate any intention to contest jurisdiction. At first instance, the district judge set aside the extension of time for service and struck out the claim. The Court of Appeal allowed the claimants’ appeal holding that the set-aside application could not be an application under Part 11 because:

Since the defendant had acknowledged service and had not made any application disputing jurisdiction within the time allowed by r.11(4), the Court of Appeal held that the effect of r.11(5) was that the defendant was treated as having accepted the court’s jurisdiction and, therefore, as having abandoned its application to set aside the extension of time for service. Accordingly, the district judge had been wrong to set aside the extension and to strike out the claim.

Hoddinott was a case where the claim form had at least been served within the time as extended by the court. There is, however, a tension between the Part 11 machinery and the fundamental obligation of a claimant to serve proceedings. In particular, in a case where proceedings were served out of time (and not even within the time as extended as in Hoddinott), should the court:

In Shiblaq v. Sadikoglu [2004] EWHC 1890, the claimant failed to effect valid service out of the jurisdiction. There being no acknowledgment of service, the claimant subsequently entered judgment in default. On a subsequent application to set aside the default judgment, the claimant argued that the defendant could only raise an issue about the validity of service by an application under Part 11. Colman J rejected that argument as bizarre, observing at [20]:

“The giving of judgment for lack of acknowledgment that a procedural step has been taken which has, in truth, never or has never effectively been taken would not appeal to many as a logical or, indeed, a fair feature of a system of civil procedure.”

Similarly in Dubai Financial Group LLC v. National Private Air Transport Services Co. Ltd [2016] EWCA Civ 71, Treacy LJ said, at [29], that there was considerable force in the point that the rules impose no obligation on a defendant to take any steps in response to invalid or unauthorised service. McCombe LJ added, at [36] and [40], that the time for acknowledging service had not expired in that case because it had never begun to run.

In Pitalia v. NHS England [2023] EWCA Civ 657, [2023] 1 W.L.R. 3584, the claim was served after the expiry of the four-month period allowed by r.7.5. The defendant acknowledged service but did not indicate an intention to contest jurisdiction albeit its covering letter raised the issue of late service. Three days later, the defendant applied to strike out the claim for non-compliance with r.7.5, but without expressly invoking the jurisdiction under Part 11.

Bean LJ observed, at [32], that the Supreme Court had made clear in Barton v. Wright Hassall LLP [2008] 1 W.L.R. 1119, that particular importance is to be attached to the timely and lawful service of the originating process and that a failure to comply with the rules about service is to be treated with greater strictness than other procedural errors. At [33], Bean LJ explained the ratio of the decision in Hoddinott:

“Hoddinott lays down that if a defendant acknowledges service without making an application under CPR r.11(1) for an order declaring that the court has no jurisdiction (or should not exercise its jurisdiction) to try the case, this is taken to be an acceptance of jurisdiction. Whatever one might think of Hoddinott, the decision is binding on us, and like the judge I do not consider that it has been impliedly overruled by Barton.”

Coulson LJ expressly agreed in Bellway Homes Ltd v. The Occupiers of Samuel Garside House [2025] EWCA Civ 1347, at [42], describing such proposition as “relatively limited”.

On the facts of Pitalia, there was no such difficulty. While the defendant had not ticked the box on the acknowledgment of service indicating an intention to contest jurisdiction, Bean LJ observed, at [34], that Part 11 does not require the ticking of a box on a form but the making of an application within a further 14 days. Ticking the box was, he observed, neither necessary nor sufficient to challenge jurisdiction. Further, Bean LJ held that the court could use its jurisdiction pursuant to r.3.10 to rectify the error in not expressly referring to r.11 in the strike-out application. As to that, he observed that taking the acknowledgment of service together with the covering letter and the application, the defendant had made clear its intention to apply to stop the case on the grounds that the claimant had failed to serve the claim form in time.

In Roberston v. Google LLC [2025] EWCA Civ 1262, the claimant failed to effect valid service of his claim form on Google out of the jurisdiction within the period allowed of six months. Google challenged the validity of service and Mr Robertson applied for relief from sanctions. In rejecting the argument that the court could grant relief from sanctions for the claimant’s default in effecting good service and that the only available relief was an extension of time for service of the claim form under r.7.6(3), Coulson LJ said, at [50]:

“Because he had not validly served the claim form within time, the proceedings, on the face of it, were a nullity. He needed to obtain an extension of time for service of the claim form, otherwise the proceedings remained a nullity. Issues relating to relief from sanctions in those circumstances are simply irrelevant: if time for service is not extended under the relevant rule … there are no proceedings in which relief from sanctions can be granted.”

Two days before the hearing of the appeal in Robertson, his counsel provided a fresh written argument taking the new point that Google should have served an acknowledgment of service and made its jurisdiction challenge under r.11.1. The Court of Appeal refused permission to amend the grounds of appeal both because of the obvious prejudice to Google but also because it considered the point to be unarguable. Coulson LJ explained, at [69]-[73]:

“69.

So the new point raises this issue: is a defendant, faced with what it considers to be defective service, and an application by the claimant (which it has made clear from the outset that it opposes) to rectify that situation, obliged either to serve an acknowledgment of service or to make an application under r.11? Mr Boch submitted that the answer to both questions was Yes. In my view, for the reasons explored below, the answer to both questions, is No. That is based on a common sense reading of the CPR, and a consideration of the authorities.

70.

As to the CPR, I consider that all the rules concerned with the service of the acknowledgment of service presuppose that the claim form and/or particulars of claim have been validly served. The CPR build, one upon another, on the assumption that the previous applicable rule has been complied with. The claimant’s obligations as to service are set out in Parts 6 and 7; the defendant’s concomitant obligations are in Parts 9-11. The latter assume that the former have been complied with: otherwise the CPR would be five times as long, having to set out all the potential consequences if a previous step had not been validly taken. So r.9.2 …, which is the starting point of the defendant’s obligations, only works if the claim form has been validly served in the first place. There is no obligation to serve an acknowledgment of service in circumstances where the claim form has not been validly served.

71.

Google were not therefore obliged to serve an acknowledgment of service in the present case. In consequence, Hoddinott is of no application.

72.

Moreover, also by reference to the CPR, there was no requirement for Google to make an application under r.11. Such an application is required in circumstances where a defendant decides, at the outset, that he wishes to make a challenge to the court’s jurisdiction. If so, he is required to communicate that position to the claimant. Hence the importance of an application under r.11.

73.

But in the particular circumstances of this case, that was unnecessary. Here, Google were responding to Mr Robertson’s own application to rectify his invalid service. Google made it plain from the outset that they opposed that application. They were of course quite entitled to do so. It would have been apparent to everyone that, if Mr Robertson’s application failed, the claim form was not validly served, these proceedings would be a nullity, and the court would have no jurisdiction. Accordingly there was no need for a separate r.11 application; that would have simply duplicated paper, time and costs.”

The appeal in Bellway was heard the day after judgment was handed down in Robertson. The claimant failed to serve the proceedings within the time allowed in an earlier order. The defendants challenged the validity of service and threatened to apply to strike out the claim. The claimant responded by applying for a declaration that the claim had been validly served or, in the alternative, relief from sanctions or an extension of time for serving the claim form. They failed in those applications but the master nevertheless held that the proceedings should continue because the defendants had not acknowledged service or applied for an order pursuant to r.11(1). As Coulson LJ explained, the master’s decision could not survive the very recent decision in Robertson. He said, at [62]-[63]:

“62.

Standing back from Robertson and the principles to be derived from the other authorities, it seems to me that, as a matter of common sense, where a claimant has not served a claim form in time, and no extension of time has been granted by the court, the defendant is not the subject of the court’s jurisdiction. It would be absurd to suggest that, in circumstances where all the default is on the part of the claimant in failing to serve the claim form in time, he or she can obtain some sort of ‘get out of jail free’ card, by suggesting that the proceedings can continue - as if the invalid service had never happened - because the defendant failed to acknowledge that invalid service and/or failed to make an application under Part 11.

63.

Again as a matter of basic intuition, it would seem to be wrong to provide the claimant with a remedy for its own default simply on the basis that the defendant should have pretended that the service of the claim form was valid and so should have served an acknowledgment of service. Such a scenario was described 20 years ago by Colman J as bizarre, illogical and unfair. I respectfully agree with that.”

Coulson LJ observed that R (Koro) v. County Court at Central London [2024] EWCA Civ 94 had not been cited in Robertson. In Koro, a defect in service was first relied on two years later when the point was taken at a hearing to set-aside the striking out of a claim. Stuart-Smith LJ explained, at [68], that Part 11 was “the procedure for disputing the court’s jurisdiction” and was concerned that the defendant had effectively hijacked the hearing. In Bellway, Coulson LJ remarked, at [48]:

“Koro was therefore a case where the question of the validity of the service had been raised by the defendant (months, if not years, out of time), rather than – as here – by the claimant almost immediately after the late service of the claim form. In those circumstances, I would respectfully agree with Stuart-Smith LJ that the only procedure for the defendant in Koro to follow was Part 11. That was the way in which the defendant could fairly raise – for the first time – the question of jurisdiction with both the claimant and with the court. But that is far removed from the facts of the present case, where the defendant had no need to adopt that course because the question of service, and therefore jurisdiction, had been expressly raised by the claimant within a week of the late service of the claim form.”

In her own short judgment, Andrews LJ put the point pithily, at [68]:

“The decision of Colman J in Shiblaq makes it plain that a defendant is not obliged to acknowledge service when service has not been validly effected. It would be absurd if the rules of civil procedure operated in such a way as to effectively force a defendant to submit to the jurisdiction of the court despite the fact that the claim form had never been validly served on him …”

Pulling together these cases:

In my judgment, the authorities have rightly made clear that a claimant cannot escape the fundamental obligation to serve the claim on which the jurisdiction of the court is founded by asserting that the defendant’s challenge must be made by first acknowledging that which has never been effected. That is entirely different from the sweeping submission now made by Ms Kabir Sheikh that it is open to a defendant who has acknowledged service and defended the claim on its merits to take the jurisdiction point at any time, including at the final hearing.

In this case:

Even if I am wrong to conclude that the strike-out application heard by Linden J was a jurisdiction challenge or that, upon the proper construction of Part 11, a defendant can only challenge jurisdiction once, I would in any event conclude that it was not open to Croydon to take the service point at the June hearing:

For these reasons, I conclude that it was not open to Croydon to take the service point at the hearing on 12 June and that its preliminary jurisdiction argument should be rejected.

After all of that, I come to the merits of the claim. As it turns out, the claim is actually more straightforward than the procedural issues in this case. The traffic schemes are challenged on two grounds:

Before considering the challenge, it is necessary to refer to a little of the background to the traffic schemes. These Low Traffic Neighbourhood schemes were first adopted in 2020 by way of temporary traffic orders. They were replaced by experimental traffic orders on 30 September 2022. Automatic number plate recognition cameras were introduced to enforce compliance with the schemes with exemptions for permit holders. The schemes were ostensibly introduced in order to secure road safety and health benefits.

Croydon has struggled in recent years to deliver a balanced budget. In 2020, the council’s Director of Finance issued notices pursuant to s.114 of the Local Government Finance Act 1988 that it could not balance its books. The December 2020 notice projected an income shortfall of £67 million in the 2020/21 financial year.

The following March, Croydon approved a budget that included projected income from traffic camera enforcement of £11.6 million. At a meeting in November 2021, Croydon’s Interim Corporate Director of Resources and Chief Financial Officer stressed that the schemes were driven by transport and health policy reasons although he acknowledged that enforcement generated income which was then spent on the roads. Referring to the budget set in March 2021, he added that if these traffic schemes were not delivered then that would impact the council’s ability to deliver its services within budget and secure future financial support from central government.

The schemes were controversial. In opposition, Conservative Councillor Jason Perry criticised the then Labour administration for the introduction of the schemes. In seeking election as mayor, Councillor Perry frequently campaigned on the issue. He then said that he would like to remove all Low Traffic Neighbourhood schemes on the first day that he became mayor and only reintroduce any scheme that had local backing and would achieve its stated purposes. While that was his wish, he cautioned:

“However, owing to how Labour has constructed their budget this is simply not possible. There is well over £20m of future income within the budget which would have to be replaced if this happened.”

Councillor Perry was elected executive mayor on 5 May 2022. As mayor, he took part in a question and answer session on 10 January 2023. He said that he did not support the schemes but did not pledge to remove them. He added that he didn’t think he was in a position to remove the schemes because the previous administration had predicated their budgets on assumed income from the schemes. He added:

“I did not at any point say that I would remove all the [Low Traffic Neighbourhood schemes] because I just knew it was not a pledge that I could uphold.

Going forward, (and again, Councillor Roche and I have been working very closely on this), I’ve made it very clear to officers that, if we truly believe in Low Traffic Neighbourhoods, if we truly believe that walking and cycling is the way forward and the way that we create a more healthy environment, that the way we do that is not by fining our residents. Any future schemes coming forward should not be based on fining residents in order to achieve it.”

The officer’s report to cabinet recommended that the mayor should, subject to some modifications, make six of the Low Traffic Neighbourhood schemes (the Albert Road, Dalmally Road, Elmers Road, Holmesdale Road, Parsons Mead and Sutherland Road schemes) permanent, but remove the Kemerton Road scheme. At paragraph 3, the report cited the following benefits of its recommendations:

The report also identified a further potential health benefit in promoting cycling and walking. While the number of cyclists and pedestrians had increased since the pandemic, there was no “before and after” data around the introduction of the schemes.

At paragraph 4.4, the officer properly identified the matters that must be considered when making a traffic management order pursuant to s.122 of the 1984 Act. That was a theme that was returned to at paragraphs 9.8-9.9. Further, the report summarised the objections received during the course of public consultation. At number 3, the officer identified the objection that the proposal was driven by financial considerations because the council had introduced the schemes to raise revenue. The objections were analysed in Appendix 2 to the report, which simply noted in respect of the financial-driver objection:

“The council is obliged to ring fence revenues from both parking enforcement and enforcement of traffic regulations for the purpose of maintaining the public highway in line with current legislation.”

Meanwhile, the financial implications were explained at section 8 without further comment. The total projected surplus from the schemes over the four years from 2023-27 was £10.7 million.

The cabinet meeting resolved to accept the recommendations and make six schemes permanent while removing the seventh scheme.

An article published in the Telegraph on 17 February 2024 reported that, when approached for his comment upon his alleged U-turn, the mayor responded:

“The decision to introduce [Low Traffic Neighbourhood] schemes was made by the previous administration before I was elected as mayor. The council’s budget is predicated, partly of course, on that decision, and I do not feel that I am in a position to reverse it.”

The essential legal framework is not in dispute:

Here, there is no doubt that the traffic scheme has raised significant revenue. That does not of itself make it unlawful; the question is whether the authorised purpose remained the cabinet’s dominant purpose. The officer’s report can be helpful in determining the reasons for an authority’s decision. Indeed, in R (Palmer) v. Herefordshire Council [2016[ EWCA Civ 1061, [2017[ 1 W.L.R. 411, Lewison LJ cited earlier authority in summarising the principle, at [7]:

“In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer’s report, at all events where they follow the officer’s recommendation: R v. Mendip District Council, Ex p Fabre (2000) 80P & CR 500, 511 and R (Zurich Assurance Ltd (trading as Threadneedle Property Investments)) v. North Lincolnshire Council [2012] EWHC 3708, at [15].”

Here, the officer’s report explained to cabinet that the council must exercise its powers so as to give effect to the requirements of s.122 of the 1984 Act and s.16 of the Traffic Management Act 2004. It is common ground that there was nothing in the report or in the approved minutes to indicate that the council’s decision was influenced by the desire to raise revenue. The inference that the council therefore acted for the lawful purposes set out in the report is, however, only the starting point of the analysis.

Mr Leigh argued that such inference is plainly rebuttable and that there is in this case contrary evidence. He relied on the following matters:

Ms Kabir Sheikh submitted that the ground is unarguable. She argued that the mere fact that Ms Lawrence disagrees with the decision does not render it unlawful. Further, she submitted that the question was not whether the decision was Wednesbury unreasonable but whether it was made for an improper purpose. She relied heavily on the officer’s report and submitted that there was nothing improper about the officer’s analysis. She argued that the report identified the financial implication of the decision but made plain that that was not a relevant consideration. Further, she argued that the mayor had demonstrated that he had an open mind. She asserted that the evidence showed that while he had previously held a position on the schemes, he considered the report and changed his mind. That, she submitted, was the democratic and public law process working as it should. She relied on s.25 of the Localism Act 2011 and R (IM Properties Development Ltd) v. Lichfield District Council [2014] EWHC 2440 (Admin), [2014] P.T.S.R. 1484.

I accept Ms Kabir Sheikh’s argument that the starting point is that the court should infer, in the absence of other evidence, that the council made the decision for the lawful purposes identified in the officer’s report. Further, she was right to insist that the mere fact that the mayor had changed his mind was not evidence that he had done so for an unlawful purpose. Indeed, it was evidence capable of establishing that he had an open mind and had not predetermined the issue. In any event, an earlier statement of opinion on the issue did not give rise to an inference that he had a closed mind: s.25 of the Localism Act 2011.

Ms Lawrence has, however, constructed a circumstantial case that throws that narrative into doubt. The question for me is whether I am satisfied on the balance of probabilities that she has succeeded in establishing that the dominant purpose of the decision was not lawful. That, in my judgment, is a question of fact rather than law. In considering that issue, I take into account all of the evidence before me.

It is fair to say that the officer’s report identified tangible, but perhaps modest, road safety and health benefits. It is not, however, for the court to weigh those arguments. That was a policy decision for the cabinet. If I were satisfied that the cabinet accepted the officer’s recommendations for the reasons that he gave in his report and kept out of mind the illegitimate consideration of the financial benefit of the schemes then I would dismiss this claim.

The Telegraph report is hearsay evidence of what the mayor said. There has, however, been no attempt to gainsay that account and it is consistent with statements made by Councillor Perry both before and after his election as mayor. It comes to this:

Taking the relatively modest benefits of the schemes into account together with the mayor’s apparent lack of public enthusiasm for the road safety or health case for these schemes, and his clear and repeated comments before and after the vote as to his hands being tied by the budgetary considerations, I am satisfied on the balance of probabilities that the dominant purpose for these orders making the schemes permanent was the need to safeguard the revenue raised by enforcement. Such purpose was unlawful and I therefore quash the orders.

In view of my conclusion on ground 1, it is unnecessary to consider ground 2. In fact, as the ground was developed in oral argument I rather agree with Ms Kabir Sheikh that it became simply another way of taking the same basic point that the orders were made for an unlawful purpose.

For these reasons, this claim succeeds on ground 1 and the orders must be quashed.