Wolman v London Borough of Islington & Anor [2007] EWCA Civ 823

[2007] EWCA Civ 823Case No C6/2006/0862
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR’S & CITY OF LONDON
COUNTY COURT
His Honour Robin Laurie
5CK01742
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 July 2007
Before
LORD JUSTICE WALLERLORD JUSTICE CHADWICKLORD JUSTICE MOORE-BICK
Between
CLIVE WOLMANClaimant/THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTONDefendants/RespondentsTHE MAYOR, COMMONALTY AND CITIZENS OF THE CITY OF LONDONRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The appellant appeared in person for in personMr. Jonathan Manning and Mr Lindsay Johnson (instructed by the Director of Law and Public Services, London Borough of Islington for first respondent and by the Comptroller and City Solicitor of the City of London) for the second respondentsHearing Hearing dates : 11 th July 2007
Judgement
[1]This is an appeal from an order of His Honour Robin Laurie, sitting as a Deputy Circuit Judge, determining a preliminary point of law in proceedings brought by the claimant, Mr. Clive Wolman, against the London Borough of Islington and the Corporation of the City of London. It raises a short, but not altogether straightforward, point of statutory interpretation.[2]Section 15 of the Greater London Council (General Powers) Act 1974 as amended by section 15(2) of the London Local Authorities Act 2000 provides, so far as material, as follows:
“. . . . . any person who causes or permits any vehicle to be parked in Greater London with one or more wheels on any part of an urban road other than a carriageway, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale. ”
[3]Each of the defendants is an enforcement authority in relation to parking offences within its area and as such its parking attendants are empowered under section 66 of the Road Traffic Act 1991 to issue penalty charge notices, usually referred to ‘parking tickets’, in respect of vehicles they have reason to believe are parked in contravention of the statutory provisions. Such notices are issued by fixing them to the vehicle in question.[4]Mr. Wolman is a barrister. He lives in Duncan Terrace, Islington and travels to work by motorcycle. At home he parks his motorcycle on its stand which rests on the pavement outside his house. The front wheel of the bike rests on his own property; the rear wheel is suspended slightly above the surface of the pavement. The pavement forms part of an urban road other than a carriageway within the meaning of the Act in the London Borough of Islington.[5]Mr. Wolman’s chambers are in Lincoln’s Inn. When at work he occasionally parks his motorcycle on the pavement in Chancery Lane resting on its stand with both wheels suspended slightly above the surface of the ground. To balance a motorcycle on its central stand so that neither wheel is in contact with the ground would seem to require a considerable degree of skill, but Mr. Wolman assured us that it can be done and I accept for present purposes that he is right. The pavement in Chancery Lane forms part of an urban road other than a carriageway within the meaning of the Act in the City of London.[6]On numerous occasions parking wardens in both Islington and the City of London have issued parking tickets on the grounds of infringements of the prohibition on parking on the pavement which they have attached to Mr. Wolman’s motorcycle. On one or two occasions his bike has been removed from Chancery Lane to a vehicle pound.[7]On 26th May 2005 Mr. Wolman commenced proceedings in the Clerkenwell County Court against the two local authorities claiming damages for wrongful interference with his motorcycle, breach of statutory duty, harassment and misfeasance in public office and also injunctions restraining them from committing similar wrongful acts in the future. One of the issues in the action is whether a vehicle, in this case a motorcycle, parked with one or more wheels suspended over, but not touching, the pavement is parked with one or more wheels on the pavement within the meaning of section 15.[8]On 28th March 2006 the case came before His Honour Robin Laurie at Wandsworth County Court for trial. With the agreement of the parties the judge heard argument on the correct interpretation of section 15 with a view to deciding the question as a preliminary issue. The judge held that a motorcycle parked in the manner described earlier was parked with one or more wheels “on” the pavement. In reaching that conclusion he adopted a purposive approach to the interpretation of the statute and appears to have been influenced mainly by the consideration that, if Mr. Wolman were right, people could easily circumvent the statute by laying a motorcycle on its side in such a way that neither of the wheels touched the ground, or by putting the wheels on blocks of wood, or even pieces of paper. He granted a declaration in the following terms:
“It is declared that section 15(1) of the Greater London Council (General Powers) Act 1974 as amended by section 15(2) of the London Local Authorities Act 2000 (which prohibits causing or parking [permitting] any vehicle to be parked in Greater London with one or more wheels on any part of an urban road other than a carriageway) on its true meaning includes parking with one or more wheels raised over the surface of any such part.”
[9]Mr. Wolman submitted that as a matter of the ordinary use of language the word “on” in this context connotes some degree of physical contact, direct or indirect, between the wheels and the pavement. He referred us to the definition of the word “on” in various well-known dictionaries which support the view that its basic meaning describes the relative positions of two or more things, one of which is above and in contact with the other by which it is supported. However, as Lord Hoffmann observed in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 W.L.R. 896, 913, the meaning of words is a matter of dictionaries and grammars; the meaning of a document is what the parties using those words against the relevant background would reasonably have been understood to mean. In my view much the same applies to statutory provisions which, like commercial documents, have to be read in their own context. Language is a subtle medium and although a dictionary can provide us with examples of the way in which individual words have been used, it cannot provide us with the meaning of an expression read as a whole in the context in which it was intended to be understood. A word such as “on” is in such common use in such a variety of expressions that for my own part I do not find dictionary definitions of its meaning or examples of its use very illuminating.[10]Section 15 in its previous form did not give rise to quite the same difficulty because it referred to parking a vehicle “so that one or more of its wheels is resting on” any footway. There was greater scope, therefore for the argument that one or more of the vehicle’s wheels had to be in physical contact with the surface of the pavement in order for an offence to be committed. Whether that was in fact the case, however, we do not need to decide. The expression “parked . . . . . with one or more wheels on [the pavement]” with which we are concerned is on the face of it rather broader. The expression must be construed as a whole and in my view it is not only permissible but necessary to have regard to the mischief to which this particular provision is directed in order to determine its meaning.[11]I have no doubt that the judge thought that it would assist the parties to obtain a decision on the question of statutory interpretation that lies at the heart of the case before they became embroiled in more complex arguments of fact and law, but in my view it is usually unwise to embark on such an exercise without a clear factual basis by reference to which the competing interpretations of the provision in question can be considered. It is one thing to ask whether particular acts or omissions involve a breach of a statutory provision, the answer to the question being either ‘Yes’ or ‘No’; it is quite another to ask what a statutory provision means. In the latter case the court may achieve no more than a paraphrase of the statute in its own language. The declaration granted by the judge in this case suffers from that very defect, not being related to any specific facts. As a result it suffers from the defect of being too broad, for the reasons which I shall explain in a moment.[12]However, despite that difficulty I think that it is possible for this court to determine the issue of statutory construction that arises in this case in a satisfactory manner. In his particulars of claim Mr. Wolman makes the following allegations:
“5. . . . . . at all material times between July 2004 and May 2005 inclusive the claimant parked his motorcycle daily against his railings at the front of his home on the pavement of Duncan Terrace above the cellars within the curtilage of his home. 40. On 2nd November 2004 . . . . . the claimant parked his motorcycle on its stand in a . . . . . recess next to the main pavement and hard up against railings on the east side of Chancery Lane.”
[13]Thus he expressly avers that when he parked his motorcycle, whether outside his home or on the occasions he parked it in Chancery Lane while he was at work, it was on the pavement. Any doubt about its position was resolved by photographs of the bike at each location. These show it in Chancery Lane parked up on its stand on a recessed area of the pavement with (I am willing to assume, though it is difficult to tell) both wheels clear of the ground. Outside his home in Islington the bike is shown standing on its stand on the pavement almost parallel with the railings with the front wheel turned slightly to the right against the corner of the railings at the entrance to Mr. Wolman’s house. The front wheel is resting against the step at the edge of Mr. Wolman’s property and again, I assume (though it is difficult to tell from the photographs) that the rear wheel is clear of the ground. Mr. Wolman confirmed that these photographs were a fair reflection of the way in which he parks his motorbike in these two locations. What is clear from them is that in each case the motorcycle is by any ordinary standards parked on the pavement. The photographs therefore entirely bear out what is said in his particulars of claim.[14]At this point I can return to the judgment and say straightaway that I do not find the judge’s reasoning persuasive. I agree with Mr. Wolman that a motorcycle laid on the pavement (whether or not any part of either wheel was in contact with its surface) would not ordinarily be described as “parked” and I also agree that a vehicle parked with its wheels resting on sheets of paper or blocks of wood would ordinarily be said to be parked on the pavement. However, that only goes to emphasise the unreality of Mr. Wolman’s argument. When parked in Chancery Lane in the manner I have described his motorcycle can quite properly be said to be parked on the pavement, even if neither wheel is directly in contact with it.[15]Mr. Wolman submitted that because section 15 creates a criminal offence, the commission of which, although dealt with administratively, results in the imposition of a penalty, any doubt over its interpretation should be resolved in favour of the person at risk of incurring a penalty. That is certainly a salutary approach to questions of statutory interpretation, but it is one that only comes into play where there is genuine ambiguity in the provision under consideration. Mr. Manning drew our attention to a number of statements of high authority in support of the proposition that in interpreting a statute the court should examine the context of the legislation and have regard to the mischief at which it was directed, but in truth these principles are too well-established to call for the citation of any authority.[16]In my view it is clear from the terms of section 15 itself that the mischief at which it is directed is parking on parts of the road other than the carriageway itself, principally, of course, the pavement. A vehicle which is parked with one wheel on the pavement is, for those purposes, parked partly on the pavement; indeed, it may be that the reference to one or more wheels being on the pavement was intended to avoid disputes about whether motor vehicles parked partly on the road but with one or more wheels on the pavement are or are not parked “on” the pavement. However, it is obviously difficult, if not impossible, to say that a vehicle parked with all its wheels on the road but with part of its body extending over the pavement is parked “on” the pavement. I think it would be difficult to hold, therefore, that a person who parks a motorcycle with its stand resting on the road commits an offence under this section even if one of the wheels projects to any significant extent over the pavement and it is for this reason that I think the declaration granted by the judge is too wide. What distinguishes this case is that in each case Mr. Wolman’s motorcycle was on any sensible view parked “on” the pavement where its stand rested and over which the whole, or almost the whole, of its body was suspended, together with one or both of its wheels.[17]In my view one does not obtain much assistance in interpreting the present statutory provision from a detailed examination of the possible meanings of the word “on” as it might be used in different phrases. Nor do I think that one obtains much help from debating the application of the section to a variety of more or less unlikely factual situations. In the end one must simply decide what Parliament intended by the use of the words in question. In my view, having regard to the mischief at which the section was directed, I think that a person causes or permits a vehicle “to be parked . . . . . with one or more wheels on [the pavement]” if he parks a vehicle partly on the road but with one or more wheels resting on the pavement, or, (which is likely to apply only in the case of a motorcycle) if he parks it entirely on the pavement with the result that the whole of the vehicle, including its wheels and every other part of it, is resting on the pavement. That will be so even if none of its wheels is in direct contact with the pavement because the expression “wheels on any part of an urban road other than a carriageway” is apt in this context to cover the case. Where part of the vehicle is resting elsewhere than on the pavement it is a matter of fact whether the vehicle is parked on the pavement or not. In the case of a motorcycle parked on its centre stand the likelihood is that if the stand itself is on the pavement, the motorcycle as a whole will be parked on the pavement, including at least one of its wheels. That is clearly the case when Mr. Wolman’s motorcycle is parked outside his house, as the photographs demonstrate and as he himself recognises in his particulars of claim. This may involve giving an extended meaning to the word “on”, but once the mischief at which the legislation is aimed has been identified I do not think that the section is ambiguous so as to call for the application of the presumption against doubtful penalisation.[18]The question then is what order this court should make. As I have said, the declaration granted by the judge was too wide because it would cover a motorcycle parked in the road with one wheel extending over, but not touching, the pavement. In my view that is not what Parliament intended. His order must therefore be varied, if not set aside. In paragraph 9 of his particulars of claim Mr. Wolman alleges that “The defendants have no right to issue a PCN [penalty charge notice] against a motorcycle that has been lifted onto, and is resting in a stable position on, its stand such that neither of its two wheels is in contact with the footway or urban road.” but, even this formulation is not self-contained and fully comprehensive since the proposition is undoubtedly correct if the motorcycle is parked in that manner on the carriageway. This simply emphasises how unsatisfactory any attempt to encapsulate the meaning of the section is likely to prove if it is not grounded in hard facts.[19]One possible course that was canvassed in argument would simply be to hold that, on the admitted fact that at each location the motorcycle was parked on the pavement or otherwise than on the carriage way, the proposition set out in paragraph 9 cannot be sustained and to order that it be struck out. However, I am persuaded that we can deal with the matter on the basis of the admitted facts and in my view it would be right to do so. I would therefore allow the appeal to the extent of setting aside the declaration made by the judge and substituting for it a declaration that by parking his motorcycle on its stand on the pavement with its body and one or both of its wheels on or over the pavement the claimant was in contravention of section 15 of the Greater London Council (General Powers) Act 1974 as amended by section 15(2) of the London Local Authorities Act 2000.[20]I agree.[21]I also agree.

Cited in 1 later judgment