Camden London Borough Council v Humphreys & Anor (Rev 1) [2017] EWCA Civ 24

[2017] EWCA Civ 24Case No C1/2015/1261
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2015] EWHC 713 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/01/2017
Before
LORD JUSTICE McCOMBELORD JUSTICE BEATSONLORD JUSTICE BRIGGS
Between
Camden London Borough CouncilAppellant(1) Robert Gordon HumphreysRespondent(2) Parking AdjudicatorRespondent
Clive Sheldon QC (instructed by Legal Services, London Borough of Camden) for AppellantRobert Gordon Humphreys in person for in personHearing Hearing date: 14 December 2016. Further submissions: 18 December 2016
Judgment ApprovedLord Justice Beatson :I. Introduction:
[1]This is an appeal by Camden London Borough Council (“the Council”) from the order dated 18 February 2015 of Her Honour Judge Coe QC sitting in the Administrative Court as a judge of the High Court. The judge quashed the decision dated 12 December 2013 of Teresa Brennan, a Parking Adjudicator, dismissing the appeal of Mr Robert Humphreys, the respondent before this court, against a penalty charge notice. I summarise the judgment ([2015] EWHC 713 (Admin)) at [19] – [23] below.[2]The principal substantive legal issue is the validity of the charge certificate in the sum of £195 in respect of a parking contravention by Mr Humphreys whose moped was parked in a suspended motorcycle parking area referred to as a “bay” in Drummond Street near Euston station in the following circumstances. The moped was left there lawfully, but the Council later erected a sign notifying motorists that parking in the bay would be suspended for a 24 hour period. The moped remained in the bay during the period and the penalty charge notice was issued. The question is whether the contravention for parking in a suspended parking bay only applies where the suspension was in effect at the time the driver parked or there is notice of a pending suspension, or whether it applies whenever the vehicle is in the bay during a period in which the bay is in fact suspended. A secondary substantive issue concerns the powers of a parking adjudicator and the court where there is a contravention.[3]In the event, at the hearing the substantive legal issues were overshadowed by an important procedural issue which arose as a result of the circumstances in which this matter came before this court. This was the total non-participation by the Council in the proceedings in the Administrative Court despite its receipt of the claim form and grounds some eleven months before the hearing. Should a party which has chosen not to participate in litigation and has not put its case before the first instance court be able to appeal against the decision at first instance and, if so, in what circumstances? On behalf of the Council, Mr Sheldon QC submitted that the issue in the case raised a question of general public importance. In the Council’s notice of appeal, Mr Sheldon stated that by fixing the point in time at which the lawfulness of parking in a suspended bay is to be considered, the Administrative Court’s judgment introduced “a significant carve out to the civil enforcement of parking contraventions” “which is of uncertain scope, potentially applies to many motorists and undermines the effective management of any event which requires a parking bay to be suspended”. As the Council’s application for permission to appeal was made over a month after the end of the period specified in CPR 52.4, it also applied for an extension of time in which to make that application. When granting an extension of time to the Council to appeal and permission to appeal, in view of the circumstances, Vos LJ did so on terms that no costs are to be recoverable against Mr Humphreys (the respondent). Nothing was said about the amount of the penalty charge, or the provision of legal representation for Mr Humphreys.

II. The Law:

[4]The Council’s power to impose penalty charges in respect of road traffic contraventions is derived from section 72 of the Traffic Management Act 2004 (“the 2004 Act”), the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, SI No. 3483 of 2007 (“the 2007 General Regulations”) made under section 72, and the Camden (Waiting and Loading Restrictions) (Civil Enforcement Area) Traffic Order 2012 No.1 of 2012 (“The Waiting and Loading Restrictions Order”) made under the Road Traffic Regulation Act 1964.[5]By paragraph 2 of Schedule 7 to the 2004 Act:
“(1) In Greater London there is a parking contravention in relation to a vehicle if the vehicle is stationary in a parking place and— (a)the vehicle has been left— (i) otherwise than as authorised by or under any order relating to the parking place, or (ii) beyond the period of parking that has been paid for, (b) no parking charge payable with respect to the vehicle has been paid, or (c) there has been, with respect to the vehicle, a contravention of any provision made by or under any order relating to the parking place.”
By section 73 of the 2004 Act, parking contraventions are subject to civil enforcement. (i) otherwise than as authorised by or under any order relating to the parking place, or[6]By Article 9 of the Waiting and Loading Restrictions Order, the Council is empowered to suspend the use of a motorcycle parking space. Its material parts provide:
“9.1 Notwithstanding any other provisions of this Order, any person duly authorised by the Council… on the occasion of any public procession or for other good and sufficient reason, in cases of emergency, may suspend the use of any motorcycle parking area or any part thereof during such period as may be reasonably necessary.” “9.2 any person duly authorised by the Council…suspending the use of a motorcycle parking area or any part thereof, shall thereupon place or cause to be placed in or adjacent to the motorcycle parking area or that part thereof, as the case may be, the use of which us suspended, a traffic sign indicating that waiting by vehicles is prohibited.” 9.3 No person shall cause or permit a vehicle to wait in a motorcycle area or any part thereof during such period as there is in or adjacent to that motorcycle parking area or that part thereof, as the case may be, a traffic sign placed in pursuant of Article 9.2.”
The area in which Mr Humphreys parked his moped was governed by this provision.[7]Where a penalty charge is imposed in respect of a parking contravention, paragraph 5(2) of the 2007 General Regulations provides that, save in specified cases, liability for payment of a penalty charge rests with the person who was the owner of the vehicle at the material time.[8]Provision for making representations in respect of penalty charge notices and for appealing against them is contained in the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 SI No. 3482 (“the 2007 Appeals Regulations”). The grounds upon which representations can be made are contained in regulation 4. They include (see regulation 4(4)(a)) that the alleged contravention did not occur, the issue in this case.[9]Regulation 7 governs appeals to a parking adjudicator. It provides: “(1) Where an authority serves a notice of rejection… in relation to representations made under regulation 4, the person who made those representations may appeal to an adjudicator against the authority’s decision –(a) before the end of the period of 28 days beginning with the date of service of the notice of rejection or;(b) within such longer period as the adjudicator may allow. (2) If, on an appeal under this regulation, the adjudicator after considering the representations in question together with any other representations made to the effect referred to in regulation 4(2)(b) and any representations made by the enforcement authority, concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal and may give such directions to the enforcement authority as he may consider appropriate for the purpose of giving effect to his decision, and such directions may in particular include directions requiring- (a) the cancellation of the penalty charge notice; (b) the cancellation of the notice to the owner;(c) the refund of such sum (if any) as may have been paid to the enforcement authority in respect of the penalty charge. (3) It shall be the duty of the enforcement authority to which such a direction is given to comply with it forthwith. (4) If the adjudicator does not allow the appeal but is satisfied that there are compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled he may recommend the Enforcement Authority to cancel the notice to owner. (5)….[Regulation 7(5) requires the enforcement authority to consider afresh the cancellation of the notice taking full account of the observations made by the adjudicator and to notify the appellant and the adjudicator whether or not it accepts the recommendation]… (6) If the enforcement authority notifies the appellant and the Adjudicator that it does not accept the adjudicator’s recommendation, it shall at the same time inform them of the reasons for its decision. (7) No appeal to the adjudicator shall lie against the decision of the enforcement authority under paragraph (6). (8) If the enforcement authority accepts the adjudicator’s recommendation it shall forthwith cancel the notice to the owner and refund to the appellant any sum paid in respect of the penalty charge. (9) If the enforcement authority fails to comply with the requirements of paragraph (5) [to consider afresh the cancellation of the notice and to notify the appellant and the adjudicator whether or not it accepts the adjudicator’s recommendation] the authority shall be taken to have accepted the adjudicator’s recommendation and shall cancel the notice to owner and refund to the appellant any sum paid in respect of the penalty charge immediately after the end of that period.” (a) before the end of the period of 28 days beginning with the date of service of the notice of rejection or; (b) within such longer period as the adjudicator may allow. (a) the cancellation of the penalty charge notice; (b) the cancellation of the notice to the owner; (c) the refund of such sum (if any) as may have been paid to the enforcement authority in respect of the penalty charge.[10]In R (Camden LBC) v Parking Adjudicator [2011] EWHC 295 (Admin) Burnett J (as he then was) stated at [11] that:
“… [I]f the Parking Adjudicator accepts one of the grounds specified in Regulation 4(4), he must allow the appeal and the enforcement authority is obliged to comply with any direction he makes to give effect to his decision. If none of those grounds are established but the Parking Adjudicator considers that there are compelling reasons why the notice should be cancelled he can recommend that the enforcement authority do so. The decision whether to do so is left to the enforcing authority, unless they do nothing, in which case there is a deemed acceptance of the recommendation. There is no further appeal against a refusal to act upon a recommendation. Such a decision could be challenged only in public law proceedings in this Court.”
[11]It is also to be noted that in analogous contexts concerned with contravention of parking regulations it has been said that “liability without fault is… to a certain extent inherent” in the schemes and that “the owner of the vehicle may well be liable in circumstances in which he is not at fault and even when he does not know about a contravention at all”: see the decision of Mr G R Hickinbottom, as he then was, sitting as a parking adjudicator, in Baker v London Borough of Wandsworth& others 4 July 1997, a case concerning the provisions on pay and display vouchers. In that case (at 11) Mr Hickinbottom cited the decision of this court in R v London Borough of Wandsworth, ex parte The Parking Adjudicator [1998] RTR 51 and stated that that case had recognised that the scheme “involved a balance between administrative practically on the one hand, and fairness on the other, and [that] in some cases, the former overrides the latter” but “those cases will be rare, and the conclusion that fairness is overridden will only be reached with care and hesitation” but that the provisions on pay and display vouchers fall within that category. There is no explicit reference in the decision of this court to balancing administrative practically and fairness, but it did state (see 59F-G) that whether the disposition of a vehicle suffices to rebut the presumption that the owner of a vehicle is the person in whose name the vehicle is registered is related to what is or what should be the position in the public record. In this sense it was concerned with practicality.

III. The facts:

[12]Mr Humphreys, who lived in Shropshire but came to London from time to time to do work, parked his moped in a motorcycle parking bay in Drummond Street on 15 August 2013. There was no restriction on the period for which a vehicle could be lawfully parked within the bay. Nor was there a notice stating that parking was, could be, or was going to be, suspended. It was the summer holiday period and he did not return to London or to the moped until 13 September 2013. On 24 August 2013 the Council put up a sign stating that parking in the bay would be suspended between 27 and 28 August 2013. On 27 August 2013 the Council issued Mr Humphreys with a penalty charge notice of £130. The notice stated that the Council’s civil enforcement officer had “reasonable cause to believe” that a parking contravention had occurred because the moped was “parked wholly or partly in a suspended bay or space”, and then “Code 21”. At the hearing Mr Sheldon informed the court that Code 21 is one of the national descriptions of “higher level” parking contraventions listed in Table 2 of the Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order 2007 SI 2007 No 3487.[13]Mr Humphreys made representations to the Council on 6 September and 14 October 2013 contending that the alleged contravention did not occur because the parking bay was not suspended when he parked and there was no notice indicating future suspension. These representations were rejected by the Council in a letter dated 28 October 2013. The Council stated that it makes drivers aware of suspension of parking facilities by way of advance warning notices and that “once the warning signs are in place it is the driver’s responsibility to ensure that their vehicle is not parked within the suspended area”. It stated that the warning in this case was given by a sign placed at the location at 18:35 on 22 August 2013, although it later stated in its evidence to the adjudicator that the notice was put in place at 01:47 on 24 August 2013. The difference is immaterial. The letter also stated that the notice was sufficient to inform drivers of the change in restrictions. The fact that parking in the bay was not suspended when Mr Humphreys’ vehicle was parked was regrettable but is not sufficient mitigation upon which to withdraw the notice. The letter also stated that if a registered keeper is travelling away from the place a vehicle is parked he or she “must make arrangements to have the vehicle checked to ensure it is not left where a bay has been suspended”.

IV. The parking adjudicator’s decision and the Council’s response:

[14]In a notice dated 5 November 2013 Mr Humphreys appealed against the penalty charge notice to the parking adjudicator. The adjudicator’s decision dated 12 December 2013, dismissed his appeal but recommended that the Council cancel the penalty charge notice. In the second paragraph of her decision she stated that she made the recommendation pursuant to regulation 7(4) of the 2007 Appeals Regulations because she “is satisfied that there are compelling reasons in the particular circumstances of this case why the Notice should be cancelled”.[15]The adjudicator’s reasons for her decision on contravention and her recommendation are given on a separate page. In her reasons, she stated:
“The facts … are not disputed. At the time that the Penalty Charge Notice was issued to the appellant’s motorbike the bay was suspended. The photographs taken by the civil enforcement officer show that there was a suspension sign in the bay. The local authority has provided evidence that the suspension sign was erected on 24th August. I am satisfied that adequate notice of the suspension was given. I find that the contravention occurred.”
I find that the contravention occurred.”[16]In the next paragraph of her reasons, the adjudicator stated that she had no jurisdiction to take into account the mitigating circumstances but she did consider that there was considerable mitigation in Mr Humphreys’ case. Her first reason is that in the circumstances of Mr Humphreys’ case it was quite clear that he was unaware that parking in the bay was suspended. Her second reason concerns the Council’s suggestion that he could have arranged for someone to check the status of the bay, and to the fact that it is usual for residents’ bays to be suspended. The adjudicator referred to the advice to those holding such permits to arrange for this to be done if they are away for an extended period. She, however, considered that in Mr Humphreys’ circumstances, it would have been unlikely that he could have arranged for anyone to check the status of the bay on a regular basis. She also stated that there was no evidence that the planned works were impeded by the presence of his moped in the bay. The inference of the adjudicator’s reference to the warning given to those who have residents’ permits to check the status of their bays may be that those like Mr Humphreys who park in unrestricted bays should be advised that bays may be suspended and to check the status of bays. She then recommended that the Council should cancel the notice.[17]The Council rejected the adjudicator’s recommendation in a decision communicated to Mr Humphreys under cover of a letter dated 13 January 2014. The Council accepted that Mr Humphreys was not in London when the advance warning notice was erected, noted that unlike residents’ permit holders he may not have been made aware of the possibilities of suspensions being put in place, but stated that it “did not feel this provides sufficient grounds upon which to rescind this notice”. The letter stated that, due to the levels of congestion experienced when parking in a Central London borough such as Camden, motorists have an obligation to both park correctly and ensure they remain parked correctly, which includes checking for upcoming suspensions. As Mr Humphreys often parked his moped for extended periods of time while out of the city, the Council would expect him to come to an arrangement that it remains correctly parked. The reasons state “although motorcycle bays are not suspended on a frequent basis, we can not mitigate the circumstances such as the one described when works do necessitate a suspension”. By a charge certificate dated 18 February 2014 the Council increased the penalty charge by £65 to a total of £195.

V. These proceedings:

[18]Mr Humphreys, who informed the Court that his letter before claim had been acknowledged by the Council, instituted judicial review proceedings challenging the adjudicator’s decision on 10 March 2014. He stated that he served the claim form and grounds on the parking adjudicator and the Council by first class post on 11 March 2014. In a statement dated 15 April 2015 in support of the Council’s application for an extension of time in which to apply for permission to appeal to this court Matthew Little, who is Camden Parking Services’ Quality Assurance Manager, stated that on the basis of his review of the Council’s records, it was not served with any documents by the court or the claimant. He stated that the Council only ever received documents relating to the case from the Parking and Traffic Appeals Service. These included an email forwarded to him on 25 March 2014 containing a letter from the Parking and Traffic Appeals Service dated 21 March 2014 with a copy of the claim form and the statement of grounds. He does not refer to the letter before claim or the order dated 20 May 2014 by HHJ Thornton QC, granting permission to apply for judicial review on the papers, and does not give any explanation of why, despite the receipt of the claim form and grounds almost a year before the court, the Council took no steps to participate in the proceedings.[19]In his order granting permission, HHJ Thornton also directed that there was to be “a stay of 28 days from the date of the order to allow Camden’s adjudications and legal officer to reconsider the decision not to follow the adjudicator’s recommendation and, if he decides not to follow it, to give reasons why that reconsidered decision is taken”. The Order contained the standard direction that the defendant and any person served with the claim form who wished to contest the claim should file and serve detailed grounds within 35 days of service of the orders.[20]Mr Little’s statement that the Council only ever received documents relating to the case from the Parking and Traffic Appeals Service suggests that either Mr Humphreys’ first class letter and HHJ Thornton’s order which expressly refers to a stay to enable Camden’s adjudications and legal officer to reconsider the decision were not posted, not delivered, or went astray within the Council’s offices. It is possible to leave aside those questions because what is material is that the Council knew of the claim, either by being served or by Mr Little’s receipt of the claim form from the Parking and Traffic Appeals Service on 25 March 2014. As I have stated, the Council nevertheless took no steps to participate in the decision and Mr Little’s statement gives no explanation whatsoever for this. Mr Sheldon was unable to give the court any information other than that in Mr Little’s statement. Mr Little’s statement was made in the context of an application for an extension of time in which to apply for permission to appeal, and the only details in it concern the delay in seeking permission to appeal after the judgment was given. It is not in my judgment satisfactory for a party seeking leeway from the court to make no comment as to why, despite not taking part in the proceedings below, it wishes to make an out of time application for permission to appeal. Be that as it may, the position is that, when the case came before the judge on 18 February 2015, the Council had made no written submissions and did not appear. There is no acknowledgement of service, summary grounds, or detailed grounds of resistance from the Council in the bundle before us. It was not served with any documents by the court or the claimant.

VI. The Decision below:

[21]The judge upheld the claim for judicial review and quashed the adjudicator’s decision. Pursuant to section 31(5) of the Senior Courts Act 1981, she substituted her own decision that no parking contravention occurred and that there were compelling reasons to cancel the penalty charge notice. Before I summarise her judgment, I observe that it does not refer to Article 9 of the Waiting and Loading Restrictions Order on which the Council relied before this court. That was not suprising. Neither the penalty charge notice nor the Council’s case before the parking adjudicator referred to it.[22]The judge stated (at [4]) that, if she found that the reasons were so inadequate as to conclude that the decision was not reasonably made at all, it was open to her to consider the case on two limbs. The first was whether the parking offence itself was committed. The second was whether there were compelling reasons as to why the notice should be cancelled. She proceeded on the basis of what she described as “the concessions and disputed facts”: see [7]. These were that Mr Humphreys parked legally in the first place, that he had no warning of the suspension, and that, as she stated had been accepted on at least one occasion by the Council, “it is now clear that a driver is under no obligation to make any sorts of checks as to whether or not a bay in which they have parked in these circumstances is under a suspension warning, or becomes suspended”.[23]The judge (at [10] and [16]) found that the adjudicator gave no consideration to Mr Humphreys’ representations in concluding that the contravention occurred; in particular, his argument that the bay was not suspended when he parked there. She also found that the adjudicator did not take account of inconsistencies in the material emanating from the Council in relation to the mitigating circumstances. She stated (at [11]) that the acknowledgment by the Council in correspondence that there is no legal requirement for a driver regularly to check that a parking bay has not been subsequently suspended was inconsistent with the Council’s reasons for rejecting the adjudicator’s recommendation. She also stated (at [13]) that the adjudicator seemed to take into account “some suggestion [by the Council] that there was an obligation to check” on the basis of an analogy with a resident’s bay permit “which is not the case here at all” and which (see [14]) is “inherently inconsistent” because the adjudicator concluded that it was unlikely that Mr Humphreys could have arranged for anyone to check the status of the bay on a regular basis. The judge concluded (at [15]) that “there were no adequate reasons given as required both statutorily and at common law, and of course in accordance with the authorities” and “in that respect, the adjudicator[’s] decision manifestly failed to consider first of all properly, or at all, whether or not the contravention had occurred”.[24]The judge also stated (see [17]) that the adjudicator had failed to consider whether there were compelling reasons why the notice should be cancelled, the decision letter makes no reference to “compelling reasons”, and clearly, therefore, the adjudicator failed to consider a matter which she should have considered. She considered that the adjudicator’s statement that she had no jurisdiction to take into account mitigating circumstances was a reason that was “inherently inconsistent” with the adjudicator’s consideration of what she considered to be mitigating circumstances. At [20] she stated:
“Had the decision been properly made, it is apparent that considering both whether or not the contravention had occurred and whether or not there were compelling reasons, it may be that the adjudicator would have made a requirement for the Local Authority to cancel the Parking Charge Notice and that is something that they would have been obliged to comply with, rather than simply avoid.”
(emphasis added)[25]In her concluding paragraph ([22])

the judge stated:

“In the circumstances, I quash the decision as requested, and given my view as to the overwhelming inadequacy of the reasons here and the error of law, I substitute my own decision on the basis that on the facts and the evidence, the only one that could reasonably have been made would be to find that either no contravention had occurred, or that there were sufficiently compelling reasons given any arguable (had it been argued) ambiguity in the rules that there should have been a requirement that this Parking Charge Notice be cancelled.”

VII. The grounds of appeal:

[26]Mr Sheldon submitted that the judge misdirected herself in law in three ways. The first is by finding that no parking contravention occurred. The second is her decision that, whether or not there was a contravention, the adjudicator was empowered to require the Council to cancel the notice. The third is her conclusion that the adjudicator failed to give adequate reasons for her decision that there was a contravention. Before considering these, I consider whether, notwithstanding the permission to appeal that was granted by Vos LJ, in the particular circumstances of this case, this court should deal with the substantive grounds. VIII. Discussion: (a). Should the Council’s submissions be considered by the court?[27]In his written submissions, Mr Humphreys submitted that the appeal should fail because the court should not consider matters which the Council should and could have raised at first instance but which it did not. He relied on the decision in Jones v MBNA International Bank Court of Appeal 30 June 2000 and in particular the statement of May LJ at [52] that “civil trials are conducted on the basis that the court decides the factual and legal issues the parties bring before the court” and that, where a party chooses to confine a claim or a defence to only some of the ways in which that party’s case may be put, the court will decide the issues which are raised and not those which are not raised. He also stated that “normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings” or seek to appeal a decision “on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded had it been so brought”. Although there are differences between private law and public law litigation, the considerations of efficiency, expediency, cost and substantial justice which May LJ mentioned, apply to public law proceedings. May LJ referred in particular to the fact that parties to litigation are entitled to know where they stand, and that “it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis”.[28]In questions to Mr Sheldon during the hearing the court raised the question whether and, if so, to what extent it is open to a party who knows of a claim but has taken no part whatsoever in proceedings below to raise points that could and should have been put before the trial judge. The court was particularly concerned about the absence of any explanation as to why, despite receiving the claim form and grounds some eleven months before the hearing, the Council took this course of action. Its position in doing nothing but now seeking to take points which should have been taken in the Administrative Court is one which seems to me to be difficult to reconcile with the overriding objective.[29]There is considerable force in Mr Humphreys’ submissions. It is, however, clear from the authorities that, where submissions which could have been made at first instance but were not, if allowing them on appeal would not require further factual findings on areas not covered by the judgment below, and where the point which had not been raised at first instance is a pure question of law, although the appellate court retains a discretion to exclude it, provided three conditions are met, the usual practice of this court is to allow the point to be taken: see Pittalis v Grant [1989] QB 605 and Crane (T/A Indigital Satellite Services) v Sky In-Home Ltd and Another [2008] EWCA Civ 978 at [23]. The three conditions stated by Nourse LJ in Pittalis v Grant are that the other party:(a) has had adequate opportunity to deal with the point;(b) has not acted to his detriment on the faith of the earlier omission to raise it; and,(c) can be adequately protected in costs.[30]In the case of a litigant in person such as Mr. Humphreys, the third condition, protection in costs, can be met by the right given to a litigant in person by the Litigants in Person (Costs and Expenses) Act 1975 (as amended) and CPR Part 46.5 to recover “… sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates….”. This may, subject to the conditions in the Act and CPR Part 46.5 be either an hourly rate to reflect actual financial loss, or a fixed hourly charge, subject to an overall cap of two-thirds of the amount that would have been charged by a legal representative had one been used.[31]In this case, the proceedings are by way of judicial review and the Council’s grounds of appeal involve pure points of law. The underlying facts were not in dispute, and it is not suggested that Mr Humphreys sought or could legitimately have sought to adduce further evidence. I also have regard to Mr Sheldon’s submission that the principal point relied on by the Council in this appeal was put before the adjudicator by the Council in its submissions. That point is whether “parked … in a suspended bay or space” means that there is only a contravention if the bay has been suspended at the time the vehicle is parked and left in the bay, or whether there is also a contravention where, although the owner of the vehicle is unaware of a pending suspension or actual suspension, the vehicle remains parked in the bay at a time that the bay is suspended. Because all the material before the adjudicator was before the judge, the point was also before her, although in the absence of submissions by the Council, not in a form focussing on the legislative authority for the penalty charge notice and the nature of that authority. For these reasons, notwithstanding the Council’s very unsatisfactory behaviour and the lack of an explanation for it, because of the importance to parking authorities and motorists of determining whether the contravention is a matter of strict liability, my initial inclination was that this court should consider the Council’s submissions.[32]In the light of the judgment of McCombe LJ which I have seen in draft I have, however, concluded that this court should not permit the Council to contest Mr Humphreys’ judicial review proceedings for the first time in this court. First, there is the absence of any explanation by the Council as to why it did not participate in the proceedings below in any way whatsoever. This court does not know whether that failure was the result of a conscious decision by its officials or legal advisers not to do so, or the result of a major administrative failure within the Council or its advisers. The position is that because of the Council’s decision not to provide this court with any explanation it does not know whether the Council had good reason for not attending the trial as would have been required for a successful application under CPR Part 39.5. I respectfully agree with McCombe LJ that this is an important factor when considering whether to hear the Council’s substantive case. I am conscious that Vos LJ considered the application and gave permission, but no explanation for the Council’s non-participation was given to Vos LJ. The material before him addressed the reasons for which the application was made for permission out of time and the importance of the question of law which the Council wished to advance.[33]My second reason is that, although the Council’s grounds of appeal involve pure points of law, in this court Mr Humphreys is a litigant in person. The basis of the Council’s case before us is Article 9.3 of the Waiting and Loading Restrictions Order but that had not been identified before the Administrative Court when he was represented by counsel pro bono. Notwithstanding the clear way Mr Humphreys developed his submissions in writing and orally, I am not satisfied that the first of Nourse LJ’s three considerations in Pittalis v Grant (see [29] above) have been satisfied. Mr Humphreys has had an opportunity to deal with the Council’s point but since Article 9.3 was not in play at all or even identified below and therefore not referred to by the judge, Mr Humphreys was not assisted by the way she dealt with the point in seeking to defend her conclusion. Although there are many cases in which litigants in person effectively conduct legal proceedings, in the particular circumstances of this case and the light of the nature of the underlying legal structure, I do not consider that the issue was adequately explored.[34]It is therefore not necessary to consider the question of law raised by the Council. Since, however, we heard its submissions on the matter and heard on the point from Mr Humphreys, and in view of the potential importance of the point to motorists and local authorities, I will indicate my views on the grounds of appeal advanced by the Council on the basis of the submissions which were made. (b) Ground 1: The judge’s finding that no parking contravention occurred:[35]The Council submitted that the judge erred in law in finding that no parking contravention had occurred. Insofar as the decision was based on the inadequacy of the adjudicator’s reasons, Mr Sheldon observed that the judge did not explain why the adjudicator’s reasons for finding that there was a contravention were inadequate. The focus of this part of his appeal, however, was that the judge erred because the 2004 Act and article 9 of the Waiting and Loading Restrictions Order impose a strict liability civil offence for parking in a suspended motorcycle bay which Mr Humphreys contravened. He argued that Mr Humphreys did so by (see article 9.3) causing or permitting his moped to wait in a motorcycle area or any part thereof during such period as there was a traffic sign placed there pursuant to article 9.2 suspending the use of the space for parking.[36]Mr Humphreys submitted that the judge was entitled to find that a reasonable adjudicator would have found that he had not parked in a suspended bay in the light of the circumstances: unlimited parking was permitted in the bay; he had not parked there at a time when the bay was suspended or a warning of a future suspension was displayed; he was not warned of it; and there was no legal requirement for drivers to check the places in which their vehicles are parked regularly. He submitted that article 9.1 of the Waiting and Loading Restrictions Order does not assist the Council because it only applies on the occasion of a public procession or in the state of emergency.[37]My starting point is to reiterate that the judge did not have the benefit of any submissions by or on behalf of the Council. Although at that stage Mr Humphreys was represented by counsel, acting pro bono, in an adversarial system, where the defendant is an adjudicative body and such bodies do not generally take an active part in judicial reviews of their decisions, it is a significant disadvantage to a judge if the interested party which is in substance the real adversary takes no part in the proceedings. Moreover, in considering Mr Sheldon’s critique of the judgment, it is important to note that it was an unreserved ex tempore judgment. An appeal court should not adopt a nit-picking approach to such a judgment and any infelicities of expression should be understood as flowing from its ex tempore nature and regarded benevolently.[38]Having said that, I consider that there are difficulties in the judgment. One of these is that it does not refer to any of the relevant primary or secondary legislation. This is probably for the reasons I allude to at [21] above. It is perhaps for this reason that, at times, the judgment appears to elide the question whether there was a parking contravention and whether, if there was, there were compelling reasons for cancelling the notice: see [48] and [56] below.[39]The judge’s statement at [4] (summarised at [22] above) that, if she found the reasons were so inadequate as to conclude that the decision was not reasonably made at all, she could consider whether the parking offence was committed suggests that it was not otherwise open to her to consider that. In fact, she was entitled to do so even if the adjudicator’s reasons were adequate because whether there is a contravention is a question of substantive law dependant on the construction of the legislation and delegated legislation, in this case the Traffic Management Act 2004, the 2007 General Regulations, and article 9 of Camden’s Waiting and Loading Restriction Order 2012.[40]This is not entirely clear, but the judge also appears (see the summary at [23] above) to have considered that the adjudicator erred in law in not taking account of Mr Humphreys’ representations and the inconsistencies in the material the Council put before the adjudicator. Although there can be an overlap between determining whether a decision-maker has acted outwith its lawful discretion and determining whether the decision-maker erred on a “hard-edged” question of law, the formulation used by the judge is one more suited to the review of discretion than the determination of whether there has been an error of law. It is possible, although again not clear, that the judge found either that the failure to consider Mr Humphreys’ representations was an error of law because she considered that there was no contravention if parking in the bay had not been suspended at the time Mr Humphreys left his moped there or that there was no contravention because of the inadequacy of the adjudicator’s reasons. I consider this last point when dealing with the challenge to the judge’s approach to the adjudicator’s reasons, but observe at this stage that inadequacy in the adjudicator’s reasons does not necessarily affect the legality of the penalty charge notice issued by the Council.[41]The key issue under this ground concerns the nature of the authority in statute or subordinate legislation describing the contravention and empowering the Council to issue a penalty charge notice. Paragraph 2(1) of Schedule 7 to the 2004 Act provides that there is a parking contravention in relation to a vehicle if it “is stationary in a parking place” and either “it has been left otherwise than as authorised by or under any order relating to the parking place” or “there has been, with respect to the vehicle, a contravention of any provision made by or under any order relating to the parking place.” There are three parts to article 9 of the Waiting and Loading Restrictions Order. The authority to suspend the use of a motorcycle parking area is in article 9.1. The procedural requirements, the display of a traffic sign indicating that parking is prohibited, are in article 9.2. The consequence of suspension, prohibition of causing or permitting a vehicle to wait in such an area, is in article 9.3.[42]The first question is whether article 9.1 provides the authority to suspend in circumstances such as this. The language of this provision is not entirely clear. It confers power to suspend the use of a motorcycle parking area “on the occasion of any public procession or for other good and sufficient reason, in cases of emergency”. Read literally, and taking account of the location of the word “or” and the comma, it might be thought to empower suspension only on the occasion of public processions or for other good and sufficient reason in cases of emergency. Such an interpretation would, however, mean that the words “in cases of emergency” are redundant, because emergencies fall within “other good and sufficient reason”. It would also mean that there would be no authority to suspend the use of the area for parking for work for the many reasons that are not emergencies but are necessary, such as regular maintenance of the surface of the area or the repair or upgrading of utilities that are under it. That would be absurd. Were I deciding the point, I would have been inclined to accept Mr Sheldon’s submission that the provision should be given a purposive construction and that “processions”, “good and sufficient reason” and “emergency” must be read disjunctively.[43]The next question is whether there is a contravention simply by reason of a vehicle being in a motorcycle parking area when its use has been suspended, or whether it is only where the owner parks when the use of the bay has been suspended or when he knows it is going to be suspended and his vehicle will still be there during the period of suspension. Is the contravention the location of the vehicle in the area during a period in which its use for parking has been suspended or is it the act of parking the vehicle in the area at that time? The former creates a strict liability; the latter involves fault on the part of the owner.[44]Mr Sheldon accepted that the words “Code 21” which appear on the contravention notice do not create a strict liability offence because it is a description of one of the different “higher level contraventions” for the purpose of levels of charge in a table in the Civil Enforcement of Parking Contraventions (Guidelines on levels of charges) (England) Order 2007 SI 2007 No 3487 which descriptions presuppose that for each there is a contravention created by some other provision. He nevertheless (and in my view somewhat inconsistently) submitted that the words used in the descriptions of other codes listed, for example Code 1, “parked during restricted hours” showed that “parked” in Code 21 related to the position of the vehicle rather than the act of parking.[45]Mr Humphreys relied on the description of the offence in the penalty charge notice itself, namely that he “parked wholly or partly in a suspended bay or space”. He submitted that this description imports a suggestion that the bay must have been suspended at the time he parked. Given Mr Sheldon’s reliance on the words describing the Code 21 contravention and the other descriptions, this is understandable. But the nature of the power of the Council to impose a penalty charge notice does not depend on the language on the notice or that used in the statutory guidelines on levels of charges. It depends on the provisions of the statute and the delegated legislation made under the statute.[46]That brings me back to the wording of the 2004 Act, the 2007 General Regulations, and article 9 of the Waiting and Loading and Restrictions Order. There are arguments of practicality which favour a strict liability approach to parking offences seen in the cases referred to at [11] above but it is the terms of those provisions which determine whether the liability is to be strict. Paragraph 2(1) of Schedule 7 of the 2004 Act provides that “there is a parking contravention in relation to a vehicle if a vehicle is stationary in a parking place” and either “the vehicle has been left otherwise than as authorised by or under any order relating to the parking place” (emphasis added) or “there has been, with respect to the vehicle, a contravention of any provision made by or under any order relating to the parking place”. The language of this provision favours the construction advanced on behalf of the Council that it is the simple fact of a vehicle being parked in a suspended bay which means there is a contravention. There is no indication from the statute that any proof of the owner’s knowledge or fault is necessary.[47]There is also support for the construction advanced by the Council in Regulation 5 of the 2007 General Regulations. That provision makes the owner of the vehicle subject to a penalty charge notice liable to pay the charge and not the person who parked it. This suggests that no fault is required from a particular owner. Finally, there is also some support for that construction in the language of article 9.3 which states that “no person shall cause or permit” a vehicle to wait in a motorcycle area when permission to park has been suspended and there is a traffic sign to this effect displayed in or adjacent to the area.[48]For these reasons, I consider that the language of the various provisions suggests that the passive acts of the vehicle being “left” or the owner “permitting a vehicle to wait” make the owner of the vehicle liable even if the bay was not suspended at the time the vehicle was originally parked there. It is a more natural interpretation of the provisions than one which involves having to determine exactly when a vehicle was parked and, if it was parked before the bay has been suspended, whether the traffic sign stating the period for which parking is to be suspended was displayed at that time. If this is so, it would follow that the judge did fall into error in concluding that no parking contravention occurred. But in view of my decision that the Council should not be permitted to contest the judicial review for the first time in this court, the resolution of this of this issue by this court must await another case. (c) Ground 2: The judge erred in law in deciding that, whether or not there was a contravention, the adjudicator was empowered to require the Council to cancel the notice.[49]I consider that the judge fell into error at [20] of her decision (set out at [24] above) by eliding the consequences of a finding that there was no contravention with those of a finding that there was a contravention but there were compelling circumstances for cancelling the notice. This led to her conclusion that the adjudicator should have required the Council to cancel the parking charge notice.[50]It is clear from the language of regulation 7(4) of the 2007 Appeals Regulations that, where an adjudicator does not allow an appeal because there was a parking contravention, he or she cannot compel a Council to cancel the penalty charge notice, but can only make a recommendation to it that it does so. See also Burnett J in R (Camden LBC) v Parking Adjudicator [2011] EWHC 295 (Admin) at [11] “if the adjudicator does not allow the appeal…he may recommend the enforcement authority to cancel the notice to owner” (emphasis added), but “the decision whether to do so is left to the enforcing authority…”.[51]In this case, the judge’s statement at [20] of her decision that “it may be that the adjudicator would have made a requirement for the [Council] to cancel the Parking Charge Notice and that is something that they would have been obliged to comply with”, appears in part to track the language of Burnett J, but by preceding this with the words “whether or not the contravention had occurred” she fell into error. This was because she elided the consequences of a finding that there was no contravention (requiring and obliging the Council to cancel the notice) with those of a finding that there was a contravention but there were compelling circumstances for cancelling the notice (where only a recommendation could be made). Ground 3: The judge erred in law in deciding that the adjudicator failed to give adequate reasons for her decision that there was a contravention[52]I have set out the adjudicator’s decision at [14] above, and her reasons for finding that there was a contravention at [15] above. Mr Sheldon submitted that she had provided adequate reasons and that none of the factors identified by the judge at [16] of her decision (summarised at [23] and [24] above) had any bearing on the adjudicator’s decision on contravention. Since I incline to the view that the offence is a one of strict liability, I also incline to the view that inconsistencies in the Council’s position as to whether there is a duty on motorists to check on the position and other compelling reasons for cancelling the notice were not relevant in considering whether there was a contravention. If so, they would not have to be part of the reasons given for finding that there was. Mr Humphreys supported the judge’s approach. He submitted that the adjudicator did not provide adequate reasons for her conclusion that the contravention occurred because the vehicle was in the bay at a time that it was suspended even though the bay was not suspended when he, unaware of a pending suspension, parked it there.[53]Lord Brown’s now classic formulation of the duty to give reasons in South Bucks DC v Porter (No. 2) [2004] UKHL 33, reported at [2004] 1 WLR 1953, at [36], requires that the reasons must be “intelligible” and “adequate”. They “must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’ …”. He also stated that “a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision”. There is no need for lengthy reasons, but the reasons should be such as to tell the parties in broad terms why the decision was reached.[54]In this case the adjudicator’s reasons showed that the reason she found there was a contravention was because the simple fact that the vehicle was in the parking bay at a time when it was suspended sufficed. In lawyers’ language (although that she did not use the term), she found that this was a strict liability offence. In my judgment, the language that she used enabled Mr Humphreys to know why he lost his appeal and (see R v Westminster CC, ex p Ermakov [1996] 2 All ER 302, 399) to make a proper assessment as to whether to challenge the decision. It also enabled a court considering such a challenge to understand why the adjudicator reached her decision and know whether she made any error of law. In R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region [2001] EWHC (Admin) 901, on which Mr Humphreys’ written submissions relied, Stanley Burnton J (as he then was) stated at [77] that “in assessing the adequacy of reasons, one must bear in mind that the decision will be considered by parties who know what the issues were” and “it is unnecessary for a tribunal to set out the evidence and arguments before it or the facts found by it in detail”.[55]I do not consider that Mr Humphreys was substantially prejudiced as a result of the way the adjudicator put the matter. He knew that his argument that there was no contravention because there was no suspension or warning of a possible suspension at the time he left the moped in the bay had been rejected because the adjudicator considered that the presence of the moped during the period of the suspension sufficed. He was able to mount a challenge that this was erroneous in law. For these reasons, I have concluded that the adjudicator’s reasons for her decision that there was a contravention were adequate.[56]I add that I consider the judge’s criticism of the adjudicator’s reasons for her recommendation because they used the term “mitigating circumstances” and not “compelling reasons” for cancelling the notice misplaced. The adjudicator’s decision itself on the previous page refers to “compelling reasons” for cancelling the notice. I do not consider that anything turns on her use of the term “mitigating circumstances” in her reasons. She clearly considered that there were compelling reasons for cancelling the notice because she recommended that the Council cancel the notice and stated in the decision itself that there were compelling reasons for doing so.[57]I add that the judge’s conclusion (at [17]) that the adjudicator’s reasons for her decision were “inherently inconsistent” also appears to be the result of her eliding the tests for determining whether there was a parking contravention and whether, if there was, there were compelling reasons for cancelling the notice. The adjudicator considered the latter only in connection with her recommendation and there is no inconsistency in her treatment of the different issues.

IX. Conclusion and Disposition:

[58]For the reasons I have given, I have concluded that the Council should not be permitted to contest this application for judicial review for the first time in the Court of Appeal. It follows that I would dismiss the appeal.[59]I have also stated that I incline to the view that the judge erred in concluding that there was no contravention in this case and that the adjudicator’s reasons were flawed. This is because I consider that the effect of the 2004 Act, the 2007 General Regulations, and Camden’s Waiting and Loading Restrictions Order is to impose a strict liability offence for parking in a suspended motorcycle bay in the sense that there is a contravention when the vehicle is located in the area during a period in which its use for parking has been suspended.[60]The Appeals Regulations have made provision for hard cases such as that of Mr Humphreys by enabling adjudicators to recommend the cancellation of a penalty charge notice where there are compelling reasons for doing so. In such a case, while it is for the relevant Council to decide whether to accept the recommendation, the Council’s decision will be subject to judicial review on the classic public law grounds, including impropriety of purpose, taking account of irrelevant considerations or of failing to take account of relevant considerations, and perversity or Wednesbury unreasonableness. In this case, no challenge was made to the Council’s decision to reject the adjudicator’s recommendation. Given the high threshold needed to establish in particular Wednesbury unreasonableness, this is understandable: such a challenge may well have failed. But the Council’s decision to reject the adjudicator’s recommendation can be characterised as uncompromisingly austere in the light of its recognition that there is no legal responsibility on owners of motorcycles to check for upcoming suspensions and the particular circumstances of Mr Humphreys’ case. Moreover, given the Council’s decision, in the absence of any explanation by the Council, its passive attitude to the challenge to the adjudicator’s decision and its total non-participation in the proceedings below seems quite extraordinary.

Lord Justice Briggs:

[61]I agree that this appeal should be dismissed, for the reasons given by both my Lords. The main justification given by the Council for its tardy participation in these proceedings for the first time in this court is the supposed need to clarify the law about parking in suspended motor cycle bays in the light of uncertainty caused by the terms of the judgment in the court below. Such a clarification might have been appropriate if the matter had been fully argued in this court, by learned counsel on both sides. But it has not been. I mean no disrespect at all to the sensible and concise submissions of Mr Humphreys by saying that I came away from the hearing with an uncomfortable feeling that the issues arising from the Council’s case about strict liability under Article 9.3 of the Waiting and Loading Restrictions Order had not been fully explored.[62]If it had been necessary to decide this appeal by dealing with that issue on the basis of the submissions which we heard I would have been inclined to agree with Beatson LJ’s conclusions and analysis, notwithstanding McCombe LJ’s reservations. I cannot see how the system for the suspension of motor cycle bays and enforcement of that suspension by the imposition of penalties can otherwise be workable in practice, although the unusual facts of this case do demonstrate that motor cyclists contemplating leaving their machines in such bays for periods longer than a day or two may well need better warning of the possible consequences than is currently provided either by signage or by the Highway Code.[63]But since our divergent views on this issue will create no binding precedent, nor affect the outcome of the appeal, I will go no further into the merits of the point about which my Lords disagree. It may be some slight comfort to the Council that our judgments will dispel the notion that the judge’s decision is to be trusted as a reliable authority on this point. But final resolution of the issue will have to await a case in which it is fully argued out.

Lord Justice McCombe:

[64]Lord Justice Beatson has outlined the unusual procedural circumstances in which this appeal comes before the court. It is clear from Mr Little’s witness statement of 15 April 2015 that the Council was fully aware of these proceedings from at least 15 March 2014 (some 11 months prior to the hearing before the judge) and yet it consciously declined the opportunity to take any part in them at any stage.[65]There is in the papers before us a certificate of service given by Mr Humphreys and dated 13 March 2014, stating that he served the Claim Form and the Grounds of Claim upon the Council by first class post on 11 March 2014. In the face of that certificate, and in the absence of any further explanation from the Council, for my part, I am not prepared to accept, without more, Mr Little’s mere assertion that “the Council has never been served with any documents by the court or the claimant”. I would have expected some explanation of the processes whereby post is received in the Council offices and of the inquiries (if any) that had been made to ascertain what had happened in this case.[66]Further, no explanation has been proffered to this court, either on the application for permission to appeal out of time that came before Vos LJ or in answer to our enquiries at the hearing, as to why the Council took no steps to participate in the proceedings in the High Court once (even on its own case) it knew about them. When asked for explanations, Mr Sheldon, doing the best that he could for his client, was confined to the statement that he could say no more than what appeared in Mr Little’s witness statement. The Council has sought to argue that the point of law arising is an important one for its parking administration. However, its absence of contest to the proceedings below belies that submission.[67]Quite apart from the question of formal service, at our invitation, Mr Humphreys has produced since the hearing his note recording a telephone call with someone at the Council acknowledging receipt of his pre-action protocol letter (of 3 March 2014) on 5 March 2014. After it had knowledge of the proceedings, there was no acknowledgment of service by the Council. Further, it seems (from the Respondent’s Notice, para. 6) that the Council had notice also of Judge Thornton’s order granting permission to apply for judicial review and was informed by letter of 23 September 2013 that the hearing of the application had been fixed for 18 February 2015. As we know, the Council did not attend that hearing.[68]There are clear provisions in CPR 39.3 setting out the circumstances in which a party who does not attend a trial may apply for any order made to be set aside. I cannot see that on such an application in this case the Council would have been able to satisfy the requirement that it “had a good reason for not attending the trial”, within the meaning of CPR 39.5(b). As indicated in TBO Investments Ltd. v Mohun-Smith [2016] EWCA Civ 403 (applying Bank of Scotland plv v Pereira [2011] 1 WLR 2391), the failure to satisfy rule 39.5 does not preclude the alternative avenue of an appeal, but it seems to me that it is a very relevant circumstance in this court. Nothing was said to Vos LJ about this on the permission application, which was focussed simply upon that application having been made out of time. Equally, of course, any application under rule 39.5 would have had to have been made on notice to Mr Humphreys who would have been entitled to appear to contest the application.[69]Of course, this court will sometimes be willing to allow pure points of law to be raised afresh in appropriate circumstances, on the basis outlined in cases such as Pittalis v Grant (supra). However, to my mind, that course will not necessarily follow where, as here, the appellant not only wishes to raise a fresh point of law for the first time but wishes for the first time to contest the proceedings in any respect.[70]I would add further that at no stage prior to the application for permission to appeal was Mr Humphreys made aware that the provision that he was said to have contravened was to be found in Article 9.3 of the 2012 Order. Instead, the penalty charge notice (“PCN”) simply referred to the Traffic Management Act 1984 and to “Code 21”, the latter of which, as we have seen, was an oblique reference to guidelines for charges for parking contraventions to be set by enforcement authorities outside Greater London. Moreover, the 2012 Order was not made under the Act to which the PCN referred, but under the Road Traffic Regulation Act 1984.[71]Mr Humphreys was not informed either by the PCN, or by the Council’s argument before the Adjudicator, or by the Adjudicator’s decision or by any argument presented to the High Court that he was alleged to have contravened Article 9.3. It is normal that where a person is said to be subject to a civil liability for him to be informed of the basis upon which the alleged liability is said to have arisen. That did not happen here. When Mr Humphreys had the benefit of pro bono representation by counsel before the judge, it appears that counsel did not know the basis upon which the Council now contends that liability arose. Mr Humphreys lost the opportunity to have the material point of construction argued before the judge.[72]For these reasons, for my part, I would not permit the Council to contest the judicial review proceedings for the first time in this court. It is far too late for that.[73]I am fortified in that view because I do not consider that, even now, giving full respect and credit to Mr Sheldon and to the careful and moderate arguments of Mr Humphreys himself, this court has had the benefit of full argument upon the issue that the Council wishes us to decide and I remain far from certain that the construction of Article 9.3 for which it contends is the correct one. We have been referred to no authorities (outside the present context) relating to liabilities (criminal or civil) arising from “permitting” something to be done or “permitting” something to happen. If the present point is as important has the Council would have us accept, then I think it would be unfortunate to decide the matter, setting a precedent which, if wrong, could not be upset except in the Supreme Court. It would be far better, I think, for the Council to await another similar case and to contest the proceedings properly with fuller argument and perhaps with professional representation being available to the opposite party.[74]I should state shortly why it is that I am not satisfied that the construction of Article 9.3 advanced by the Council and favoured by Lord Justice Beatson is the correct one.[75]The Council contends that liability to the penalty arose out of the application of paragraph 2 of Schedule 7 to the 2004 Act by reason of the contravention of Article 9.3 of the 2012 Order. Whether he was so liable depends, therefore, upon the true construction of Article 9.3.[76]Under the Order the effect of an area being a “motor cycle parking area” is that restrictions upon waiting in what is otherwise a “restricted street” under Article 3 do not apply: see Article 6.1.3. The restriction in Article 3 is that “no person shall cause or permit any vehicle to wait during the prescribed hours in any restricted street”. There appears to be no specific provision as to how “prescribed hours” are notified to the public, but this is presumably done by signage of the well-known character being placed at the location. I would assume that the Council would not contend that it was open to it to impose liability for contravening such a restriction having decided upon the prescribed hours but without displaying them sufficiently prominently to anyone who might wish to park a vehicle. The essence of the liability on the part of the motorist would be parking in the area after ignoring or failing to take into account a sign properly identifying the restriction. I.e. a liability based upon fault.[77]Even if signs had been placed, what would be result for motorists if vandals had removed or obliterated the signs?[78]I raise this point about “signage” with regard to the primary restriction imposed by Article 3, because a “motorcycle parking area” is an exemption from that restriction. The removal of the exemption is effected by the placing of a visible sign under Article 9.2 and the material contravention arises when a person causes or permits a vehicle to wait in the relevant area when a sign indicating suspension of the parking area is so placed. It seems to be that by defining the contravention by reference to signage suggests that the contravention does not occur unless the party said to be liable has ignored or has failed to notice and act upon a suitably prominent sign. It is a fault based liability, not a strict one. Moreover, it is expressly accepted by the Council here that there is no legal duty upon a person who parks a motorcycle to return from time to time to check the status of the area in question.[79]The contravention can occur in one of two ways: first, by causing a vehicle to wait in such an area where an Article 9.2 sign is placed, or secondly, by permitting a vehicle to wait in such an area. It seems to me that the “causation” contravention is probably complete when the person parking the cycle stops it in the bay, removes the key and walks away or when he simply sits on the cycle for longer than a reasonable pause to take stock of where he has stopped. Otherwise the words “or permit…” etc. are surplusage. Mr Humphreys presumably caused his motor cycle to wait in the bay when he left it there, but there was no contravention because there was no Article 9.2 sign. He was not at fault. Nor was he at fault for not returning to check the bay’s status.[80]I question very much, therefore, whether he contravenes the Article when, again without any fault on his part, his cycle remains where he placed it in a period after the Council has chosen to put a suspension sign in place. I find it difficult to see that he permitted something to happen when he was neither aware that it was happening nor was under any duty to find out whether it was happening. It seems to me that he should be no more liable than if he had parked and left his motorcycle on a street which the Council had decided should be a restricted street but without placing a sign informing the public of that fact.[81]I do not see that the construction of the Article contended for by Mr Humphreys leads to insuperable administrative difficulties for the Council. It is obviously open to it to publicise by signs that the bay may be suspended on a particular period of notice (say 24 hours) and to state that vehicles may be removed in the case of an emergency. In the latter case of emergency, it would be a political question as to whether the cost of removal and storage should be at the cost of the public at large or upon the vehicle owner.[82]I do not find support for the Council’s favoured construction in paragraph 2 of Schedule 7 to the 2014 Act, since the contravention only occurs when that paragraph operates in conjunction with an established contravention of a relevant order. That begs the question as to the basis of the contravention and the extent of it. The same point of construction arises. Again, the liability of the vehicle owner to pay the penalty in the event of a contravention does not, in my view, answer the question whether or not a contravention has occurred.[83]These alternative considerations as to the construction of Article 9.3, and indeed as to the construction of other Articles imposing liabilities for other contraventions under this Order, lead me to consider that it is inappropriate to allow the Council, at this late stage, to invite an authoritative construction of these provisions on an appeal, without having even ventured previously to identify the statutory provisions on which it contends that liability arose.[84]For these reasons, I would dismiss this appeal.

Cited in 36 later judgments

and 27 more of the most senior