R (on the application of DHL International (UK) Ltd v Office of Communications
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 04 May 2016 |
| Neutral Citation | [2016] EWHC 938 (Admin) |
| Docket Number | Case No: CO/3607/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 May 2016 |
[2016] EWHC 938 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Soole
Case No: CO/3607/2015
Graham Read QC and Ishaani Shrivastava (instructed by Nicholas Sandison, DHL Legal Director) for the Claimant
Dinah Rose QC and Jessica Boyd (instructed by Jess Hinings, Ofcom Legal Adviser) for the Defendant
Hearing dates: 25, 26, 29 February 2016
Approved Judgment
The Claimant, DHL International (UK) Limited ('DHL'), is an international door-to-door courier of goods. The Defendant, Office of Communications ('Ofcom'), is the regulator of postal services under the Postal Services Act 2011 ('the 2011 Act'). On 28 May 2015 Ofcom served an Information Request ('IR') on DHL purportedly pursuant to its powers under the 2011 Act. The IR in particular sought information about DHL's parcels business and on the basis that DHL is a 'postal operator' within the meaning of the 2011 Act.
By this claim DHL seeks declaratory and other relief on the basis that the IR is unlawful. The essential grounds are that DHL is not a 'postal operator'; and that in any event the IR is a nullity or disproportionate in its requirements. Ofcom disputes these contentions. If DHL is not a 'postal operator' it submits that it was entitled and did alternatively serve the IR on DHL as a 'person' who was not a postal operator. On 24 September 2015 Kerr J granted DHL permission to seek judicial review on all grounds.
In the course of the proceedings both parties have elaborated their cases in various ways. Ofcom submitted that DHL's further arguments went outside the scope of the grant of permission and were unarguable. I disagree that the new arguments go outside the scope but would in any event have granted permission if necessary.
I will deal in turn with the issues of:
(1) whether DHL is a postal operator;
(2) whether the IR was alternatively served on DHL as another 'person';
(3) whether the IR is a nullity;
(4) whether the IR is disproportionate in its requirements.
Postal operator
Part 3 of the 2011 Act governs the regulation of postal services. Ofcom is the regulator. By section 55 and Schedule 8 Part 1 there are set out "Requirements to provide information to OFCOM". By paragraph 1 of Schedule 8:
"(1) OFCOM may require a person falling within sub-paragraph (2) to provide them with all such information as they consider necessary for the purpose of carrying out any of their functions in relation to postal services. (2) The persons within this sub-paragraph are – (a) a person who is, or has been, a postal operator, (b) a person who provides, or has provided, access points or other facilities for use in connection with a postal service, and (c) a person not falling within paragraph (a) or (b) who appears to OFCOM to have information required by them for the purpose of carrying out any of their functions in relation to postal services…"
Ofcom contends that the IR was served on DHL as a 'postal operator' within para. 1(2)(a), alternatively as a 'person' within para.1(2)(c).
By section 27:
(1) "Postal services" means – (a) the service of conveying postal packets from one place to another by post, (b) the incidental services of receiving, collecting, sorting and delivering postal packets, and (c) any other service which relates to, and is provided in conjunction with, any service within paragraph (a) or (b).
(2) "Postal packet" means a letter, parcel, packet or other article transmissible by post.
(3) "Postal operator" means a person who provides – (a) the service of conveying postal packets from one place to another by post, or (b) any of the incidental services of receiving, collecting, sorting and delivering postal packets.
(4)…
The question is whether DHL is a postal operator within the meaning of s.27(3). At the heart of the issue is the absence of any statutory definition of the phrase "by post" as used in section 27 and elsewhere in the statute. Both parties appeal to the legislative history of the words 'by post' in support of their contrasting conclusions. DHL contends for a narrow definition; Ofcom for a broad interpretation.
I must first set out DHL's essential service as described in the witness statements of its Legal Counsel and Recoveries Manager Mr Astan Morarji. DHL commenced the business of international door-to-door couriers in the UK in about 1974. The business is predominantly business to business carriage of international express parcels and freight. The wider DHL group operates in some 220 countries. Its infrastructure includes ownership of over 280 aeroplanes. The request for the service comes from the customer and normally parcels or freight are collected directly from the account customer's premises or from the sender of the goods. After collection they are taken to a DHL local station and then on to the country's gateway export clearance. They are then either driven or flown to the import clearance gateway of the inbound country, taken on to the local station within the inbound country and from there delivered to the consignee's address. The process is reversed when sent from an overseas country for delivery to a specific address in the UK. Although the focus has always been on international door-to-door delivery in the UK and abroad, there has been some domestic business within the UK, in particular between 2003 and 2010. In that year DHL sold its business to another company (Parcel Point Ltd). It now has only a limited domestic business, essentially as an adjunct service for those international customers who on occasions require a purely domestic service. As its business is structured around the transportation of goods by air, even goods conveyed within the UK will pass through DHL's airport hub. Certain routes within the UK are also via air, e.g. to Scotland.
DHL submits that there are five particular features of this business which distinguish it from 'postal services' and DHL from a 'postal operator'. In summary these are its:
(1) Collection from customers'/senders' premises; rather than delivery by customers to some form of collection point;
(2) International conveyance of goods 'end to end', including the arrangements formalities and regime for international carriage by air; in contrast to Royal Mail's conveyance of international items to an overseas postal operator for onwards delivery;
(3) Requirement for full details of the names and address of the consignor;
(4) Requirement for full details of the items being consigned;
(5) Packages not affixed with symbols of 'postage', i.e. stamps, franked labels or the like.
Legislative history
The parties agree that the legislative history of the postal system and the words 'by post' has to be considered; but draw opposing conclusions from what it reveals. Before turning to that history, they make some general submissions on statutory construction.
DHL places particular reliance on the decision of the House of Lords in Goodes v. East Sussex CC [2000] 1 WLR 1356. In that case the relevant words in the Highways Act 1959 were capable, as a matter of ordinary language, of a meaning which supported the Plaintiff's case. However that meaning could not be upheld in the light of the legislative history. Thus "…the context in which the words appear may give them a narrower meaning. It seems to me quite impossible, in construing the Act of 1959, to shut one's eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built upon centuries of highway law. The provisions of the Act itself invited reference to the earlier law and in some cases were unintelligible without them." (per Lord Hoffmann at p.1360H). Mr Read QC argues that the undefined words 'by post' in the 2011 Act fall to be interpreted in the context of their repeated use in earlier statutes (notably the Post Office Act 1953) and the postal system as then understood. For Ofcom Ms Rose QC does not question the principle in Goodes; but submits that the legislative history has always demonstrated a broad interpretation of the words 'by post'.
Mr Read also invokes the principle that the law should not be subject to casual change ( Halsbury's Laws 5 th ed. Vol.96, para.1138; see e.g. National Assistance Board v. Wilkinson [1952] QB 648 per Devlin J at p.661; also per Lord Goddard CJ at p.659). This is again uncontroversial. Both parties agree that there has been no change in the meaning of the words 'by post' since (at least) 1953. The question is what they mean.
Ms Rose in turn relies on R (Quintavalle) v. Secretary of State for Health [2003] 2 AC 687 concerning the interpretation of statutes in the light of new circumstances. Lord Bingham said: "There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of "cruel and unusual punishments" has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so." (para.9); see also his citation (para.10) of Lord Wilberforce in Royal College of Nursing v. DHSS [1981] AC 800 at 822.
Mr Read's response is that the international door to door service provided by DHL is and always was a cat, rather than a new type of dog. In support of that submission he points to the various...
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