Culligan, R (on the application of) v Parking Appeals Service

Neutral Citation Number: [2008] EWHC 2141 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/900/2008 Royal Courts of Justice Strand London WC2A 2LL Tuesday, 24th June 2008 B e f o r e: MR JUSTICE SULLIVAN - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF CULLIGAN v PARKING APPEALS SERVICE - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Claimant Defendant Ms A Bache (instructed by Jeffrey Green & Russell) appeared on behalf of the Claimant Mr I Rogers (instructed by PATAS) appeared on behalf of the Defendant - - - - - - - - - - - - - - J U D G M E N T MR JUSTICE SULLIVAN: This is a renewed application for permission to apply for judicial review of a decision by the defendant to refuse to review the claimant's case. The decision refusing to review the case is dated 23rd November 2007. The background can be very briefly summarised as follows. The dispute arises around a penalty charge notice (normally called a parking ticket) which was issued by the interested party on 16th November 2004. The claimant considered that the notice should not have been issued and made representations to the interested party. Those representations were not accepted and so he made an appeal to the defendant in May 2005. The appeal Adjudicator refused the appeal on 1st August 2005. The claimant, as he was entitled to do under the regulations, asked for a review of that decision. The application had to be made within 14 days and it was. On that application, a different Adjudicator on 24th August 2005 rejected the application for review. There was then correspondence about whether or not the claimant should have been given a personal hearing, with the defendant pointing out that one had not been sought. That led to a letter before claim to the defendant in December 2005, to which the defendant responded on 29th December 2005 reiterating that the matter was closed. One might have thought that, given the sum at stake and the fact that there had been an appeal and a review and further correspondence, the matter would indeed have been closed, but what happened was that in a subsequent case Jackson J decided, in R (on the application of the London Borough of Barnet) v The Parking Adjudicator [2006] EWHC 2357 Admin, dated 2nd August 2006, a decision which became more widely known in October of that year, that section 66 of the relevant Act required two dates to be stated on a parking contravention notice; both the date of contravention and the date of the notice. It was apparent on the face of the notice that was issued in respect of the claimant that it did not contain the two dates. Thus, the legal argument that succeeded before Jackson J was an argument that was plainly open to the claimant, had he wished to pursue it, at the time of his appeal in 2005. What he did was to raise the matter in March 2006 when he paid but only under protest. Following Jackson J's decision he sought to pursue the matter further and commenced a civil claim for restitution against the interested party. Understandably, the District Judge in that claim said that the validity or otherwise of the parking contravention notice was not a matter for him and was a matter for the statutory appeal process and/or for judicial review. What the claimant then did was to ask the defendant for a further review. This was, of course, more than two years after the rejection of the earlier application for review. It is the refusal of that application on 23rd November 2007 which is the subject of this challenge. Although Miss Bache, who appears on behalf of the claimant and has said everything that could possibly be said on his behalf, submitted that this was regarded by the claimant as a point of principle which ought to be resolved, it does seem to me that there are two other points of principle which come into play. The first is the need for finality in litigation. It is well established that merely because it is subsequently discovered that the law was different from that which it was assumed to be by a judge giving an earlier decision, that is not a sufficient ground of itself for a litigant coming along many years later and pointing out, with the benefit of hindsight, the error in the original decision and asking either for permission to appeal or for a decision to be reopened. There is an interest in finality in litigation and if a point which could have been taken at the time was not taken, then even though it is subsequently discovered with the benefit of hindsight that had the point been taken the outcome might have been different, that is not a sufficient reason for reopening, some years after the event, a decision. It is difficult to find analogous decisions because the defendant has a statutory right, within a period of 14 days (although of course the period can be extended) to review its decisions. In so far as there is an analogy to be drawn, the analogy is perhaps with the court's inherent power to set aside its own decisions and the Court of Appeal's power to reopen any final determination. But in both of those cases the mere fact that it is discovered some years after the event that the law was not as the judge below thought it was, is not a sufficient ground for setting aside the earlier judgment or reopening the appeal. The criteria adopted by the Court of Appeal are that it will only reopen a decision if it is necessary to do so in order to avoid real injustice and where the circumstances are exceptional. The reasoning is obvious: there is a need for finality in litigation. If, with the benefit of hindsight, decisions turn out to have been wrongly made, that does not, of itself, mean that it is appropriate to reopen the process years after the event on appeal and/or review. The second principle which seems to me to come into play, very obviously in this case, is proportionality. As originally imposed, it appears that the penalty was £100. Subsequently it went up to £155 because it was not paid expeditiously. So what we are concerned with is a sum of £155 in respect of a penalty charge notice that was issued over three and a half years ago in November 2004. While I quite understand that the claimant regards this as a matter of important principle, it cannot on any reasonably objective view be said that this is the kind of case where it would be reasonable to grant permission to apply for judicial review of what is essentially a discretionary decision whether or not to allow a review very much out of time. For the reasons I have given, I am quite satisfied that there is no error of principle in the discretion that was exercised. There was no good reason why a second review should have been allowed many years after the first review had been refused. Moreover, so far as this court is concerned, there is certainly no good reason for allowing a challenge in respect of such a relatively small sum of money in respect of a notice that was issued some years ago. For those two reasons -- the need for finality of litigation and also the need for an element of proportionality in any judicial review claim -- this renewed application is refused. MR ROGERS: I am grateful. MR JUSTICE SULLIVAN: Did Pitchford J make an order for the costs of the acknowledgment of service, Mr Rogers? MR ROGERS: My Lord, he did not. SMITH BERNAL WORDWAVE MR JUSTICE SULLIVAN: Did the defendant ask for one? If the defendant did not ask then they did not get. I am not suggesting you should have the costs of today. MR ROGERS: There would have to be exceptional circumstances to have the costs of today. My Lord, I have no application to make for costs. MR JUSTICE SULLIVAN: Thank you very much indeed. Thank you both for your careful submissions, both in writing and orally. SMITH BERNAL WORDWAVE