IF YOU DECIDE NOT TO TURN UP FOR COURT DON’T EXPECT MUCH SYMPATHY: COUNCIL TOLD TO GET ON ITS BIKE

The judgment  of the Court of Appeal in Camden Borough Council -v- Humphreys [2017] EWCA Civ 24 illustrates the danger of  a party deciding not to attend a hearing.

THE CASE

A recipient of a parking ticket, Mr Humphreys,  had been  successful in a judicial review.  He had parked his moped in an authorised space. After he had parked the council put up a sign suspending parking.   He was issued a ticket. He appealed to the adjudicator.  The adjudicator observed there were considerable mitigating circumstances and recommended that the council cancel the notice. The  council rejected the adjudicator’s recommendation.  Mr Humphreys then issued judicial review proceedings. These were served on the council. However the council did not respond and took no part at all in the application. After Mr Humphrey’s was successful, however, the council appealed.

THE OBSERVATIONS OF THE COURT OF APPEAL

The issue

Lord Justice Beatson stated:

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?”

THE COUNCIL COULD NOT NOW TAKE PART IN THIS APPEAL

This issue was dealt with at length in the judgment of Lord Justice McCombe:
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.”

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