The King (on the application of Halton Borough Council) v Road User Charging Adjudicators
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 14 February 2023 |
| Neutral Citation | [2023] EWHC 303 (Admin) |
| Docket Number | Case No: CO/1298/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 303 (Admin)
Mr Justice Fordham
Case No: CO/1298/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITING IN MANCHESTER
Tim Buley KC and Christopher Knight (instructed by DLA Piper UK LLP) for the Claimant
Ian Rogers KC and Imogen Proud (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Defendant
The Interested Party appeared in person
Hearing dates: 7 & 8/12/2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
INTRODUCTION
This case is about penalty charges when vehicles cross the River Mersey without paying a road user charge (“RUC”). The Agreed Issues concern whether appeal adjudicators acted lawfully in allowing test case appeals against penalty charge notices (“PCNs”), on the basis that there had been a “procedural impropriety” as statutorily-defined, by reason of (i) unlawful delegation (ii) unlawful fettering and (iii) misleading notices. The Claimant (“the Council”) is the “charging authority” in relation to the Road User Charging Scheme (the “RUC Scheme”), applicable to two bridges (“the Bridges”): the A557 Silver Jubilee Bridge (the “Old Bridge”) and the A533 Mersey Gateway Bridge (the “New Bridge”). The Bridges span the Mersey between Runcorn and Widnes. The New Bridge opened on 14 October 2017, at which point the Old Bridge closed for works, reopening on 26 February 2021. The RUC Scheme is to be found in three successive “Scheme Orders” (§19 below), made by the Council on 9 March 2017, 19 April 2018 and 7 December 2020. The RUC Scheme identifies RUCs, payable in the case of classes of vehicle crossing the Bridges. There are exemptions and a Local User Discount Scheme (“LUDC”). Under the 2018 Scheme Order the RUC for a “class 2 vehicle” was £2. The Interested Party (“Mr Curzon”) drives a class 2 vehicle. He has been prominent in raising issues relating to the RUC Scheme and penalty charge notices (“PCNs”). He scored big wins. First, before Adjudicator Kennedy in a Determination dated 11 March 2019 (“ Curzon No.1”), upheld on review by Adjudicator Knapp on 15 May 2019. Then before Chief Adjudicator Sheppard and Adjudicator Kennedy (“the Adjudicators”) in a Determination dated 10 January 2022 (“the Joint Determination”), upheld on review by Chief Adjudicator Sheppard on 18 March 2022 (the “Review Decision”). The Joint Determination and Review Decision, which concerned 17 PCNs and 11 test case appeals, stand as the targets for the Council's claim for judicial review.
The Encapsulation Summary
Writing a judgment in this case has felt a bit like doing a 5,000 piece jigsaw. The case is one of complexity and I have not found any of the issues easy. I will describe some of the many pieces I have had to examine and fit together. I can, however, start with something pithy and short. The key conclusions in the Joint Determination were encapsulated by Chief Adjudicator Sheppard in the Review Decision in one succinct paragraph. This “Encapsulation Summary” will allow me to introduce the key features and lexicon for this case:
The appeal [by Mr Curzon] against liability for each of the 17 PCNs was allowed by the Adjudicators on the grounds of procedural impropriety because they found that: (a) the Council had failed in its duty to consider representations because, as a matter of fact, the representations were dealt with by a third party and not considered by, or under the direction of, the charging authority; (b) the rigid application of the “Business Rules” applied by the Council's agents does not constitute “consideration”; (c) the costs information in the Notice of Rejection of Representation (“NoR”) was misleading and misrepresented the regulatory requirements, amounting to a procedural impropriety .
PCNs and the PCN Review
PCNs are notices served pursuant to Regulation 7 of the Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013 (SI 2013 No. 1783) (“the Regulations”). Here is Regulation 7:
7. Penalty charge notice. (1) Where a road user charge with respect to a motor vehicle under a charging scheme has not been paid by the time by which it is required by the charging scheme to be paid and, in those circumstances, the charging scheme provides for the payment of a penalty charge, the charging authority may serve a notice (a “penalty charge notice”). (2) A penalty charge notice must be served on the registered keeper of the motor vehicle unless, in accordance with regulation 6, the penalty charge to which it relates is payable by another person, in which case the penalty charge notice must be served on that other person. (3) A penalty charge notice must state — (a) the date of the notice, which must be the date on which it is posted or sent by electronic transmission; (b) the name of the charging authority; (c) the registration mark of the motor vehicle to which it relates; (d) the date and time at which the charging authority claims that the motor vehicle was used or kept on the designated road in circumstances in which, by virtue of a charging scheme, a road user charge was payable in respect of the motor vehicle; (e) the grounds on which the charging authority believes that the penalty charge is payable with respect to the motor vehicle; (f) the amount of penalty charge that is payable if the penalty charge is paid in full — (i) within 14 days of the day on which the penalty charge notice is served; (ii) after the expiry of such 14 day period but within 28 days of the day on which the penalty charge notice is served; (iii) after the service of a charge certificate; (g) the manner in which the penalty charge must be paid and the address to which payment of the penalty charge must be sent; (h) that the recipient of the penalty charge notice is entitled to make representations to the charging authority against the imposition of the penalty charge on any of the grounds specified in regulation 8(3); (i) the address (including if appropriate any email address or fax telephone number, as well as the postal address) to which such representations must be sent and the form in which they must be made; (j) that the charging authority may disregard any such representations received by it more than 28 days after the penalty charge notice was served; and (k) in general terms, the form and manner in which an appeal to an adjudicator may be made .
As Michael Bennett, the Managing Director of Mersey Gateway Crossings Board Ltd (the “Board”), explains in his witness statement, issuing a PCN is preceded by a “PCN Review”: an assessment undertaken in order to decide whether to issue the PCN. The following can be noted. (1) A “penalty charge” is an additional charge, distinct from the RUC. Under the 2018 Scheme Order (Article 12), the penalty charge was additional to the £2 RUC. The penalty charge rate was £40, discounted to £20 if paid promptly (14 days), and increased to £60 if unpaid when a “charge certificate” comes to be served (under Regulation 17). (2) Serving a PCN is a function conferred on the “charging authority” (Regulation 7(1)): the Council. (3) There are conditions before a PCN can be issued (see Regulation 7(1)): (i) that an RUC was required to be paid; (ii) that the RUC has not been paid; (iii) that the time for payment has passed; (iv) that the RUC Scheme provides for a PCN. These conditions mean there will be factual questions for evaluative judgment, during the PCN Review. (4) Serving a PCN involves: a discretion (Regulation 7(1): “may”); mandatory service requirements including identification of the right recipient (Regulation 7(2)); and prescribed information requirements (Regulation 7(3)).
Emovis and the “Operative” (CSR)
This is a convenient moment to introduce Emovis Operations Mersey Ltd (“Emovis”) and the Emovis employee (the “Operative”). They are the “third party” and “the Council's agents” described in the Encapsulation Summary. It is the Operative who is entrusted with discharging certain functions, including the PCN Review. I have taken the word “Operative” from the Joint Determination; other documents say “CSR” (Customer Service Representative). Emovis operates under the banner and brand name of “Merseyflow”. Mark Reaney – the Council's Operational Director (Legal and Democratic) – explains as follows in his witness statement. There is a Demand Management Participation Agreement dated 28 March 2014 (the “DMPA”), entered into by the Council with the Board and Emovis. Under the DMPA, Emovis is contracted to provide “charge collection services, operate and maintain the free flow charging equipment on both of the Bridges”, having developed “the relevant software and systems that are required for a road that will handle circa 20 million vehicles per annum”. Under the DMPA, Emovis “must apply and collect charges in accordance with the [Scheme Order] in force at the relevant time as well as: any applicable enforcement regulations; the Council's charging policies; Emovis' own charging strategy; and the Business Rules”.
“Representations” and the Regulation 8(9) duty to “consider” them
The reference to “representations” is to Regulation 8 and the reference to the Council's “duty to consider representations” is to Regulation 8(9). Here are Regulations 8(1) and (2) (underlining in quotations in this Judgment connotes my emphasis added):
Representations against penalty charge notice. (1) Where it appears to the person on whom the penalty charge notice is served (“the recipient”) that – (a) one or more grounds mentioned in paragraph (3) apply; or (b) whether or not...
To continue reading
Request your trial