THE QUEEN (on the application of Stephen John Duff) v Secretary of State for Transport The Master, Fellows and Scholars of the College of the Holy and Undivided Trinity Within the Town and University of Cambridge of King Henry Viii's Foundation and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edis: |
| Judgment Date | 12 June 2015 |
| Neutral Citation | [2015] EWHC 1605 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 June 2015 |
| Docket Number | Case No: CO/4140/2014 |
[2015] EWHC 1605 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Edis
Case No: CO/4140/2014
Nicholas Yeo (instructed by Gotelee Solicitors) for the Claimant
Tom Cross (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 6 th May 2015
Introduction
This claim concerns the exercise by the Secretary of State for Transport of a power conferred on him by Regulation 27 of the Road Vehicles (Registration and Licensing) Regulations 2002/2742, which is in the terms set out below. Regulation 27(1)(e) created a power to disclose information which may lead to the identification of the registered keeper of a registered motor vehicle on the register maintained by the Driver and Vehicle Licensing Agency (DVLA) under the provisions of the Vehicle Excise and Registration Act 1994. The Regulation lists a number of persons to whom such disclosures may be made and Regulation 27(1)(e) allows disclosures to other persons, not identified above, to whom the data may be disclosed. The claimant seeks judicial review of the exercise of this power in his case in the way set out in the decision letter at paragraph 3 below.
"27.—Disclosure of registration and licensing particulars
(1) The Secretary of State may make any particulars contained in the register available for use—
(a)
(i) by a local authority for any purpose connected with the investigation of an offence,
(ii) by a local authority in Scotland, for any purpose connected with the investigation of a decriminalised parking contravention, or
(iii) by a local authority in England and Wales, for any purpose connected with its activities as an enforcement authority within the meaning of Part 6 of the Traffic Management Act 2004;
(aa) by the Department for Regional Development for any purpose connected with—
(i) the investigation of a contravention to which Schedule 1 to the Traffic Management (Northern Ireland) Order 2005 (contraventions subject to penalty charges) applies; or
(ii) the exercise of the Department's powers under Article 18(1)(b) or 21(1)(b) of that Order (immobilisation or removal of vehicles);
(b) by a chief officer of police;
(c) by a member of the Police Service of Northern Ireland;
(d) by an officer of Customs and Excise;
(da) on or after 30th April 2010 or the date of coming into force of section 144A of the 1988 Act (whichever is later), by the Motor Insurers' Bureau (being the company of that name incorporated on 14th June 1946 under the Companies Act 1929) for any purpose connected with the exercise of any of the functions of the Secretary of State relating to the enforcement of an offence under section 144A of the 1988 Act; or
(e) by any person who can show to the satisfaction of the Secretary of State that he has reasonable cause for wanting the particulars to be made available to him.
(2) Particulars may be provided to such a person as is mentioned in paragraph (1)(e) on payment of such fee, if any, of such amount as appears to the Secretary of State reasonable in the circumstances of the case."
The claimant is a Certificated Bailiff and runs a business called "ProServe" which made a large number of requests for the disclosure of particulars from the register prior to 4 th June 2014, which were granted. By letter of that date (the decision letter) the Secretary of State (through the DVLA) indicated that from 2 nd July 2014 requests from ProServe and its clients would be refused unless ProServe complied with a condition that it should become a member of an Accredited Trade Association (ATA). This condition arose because the Secretary of State decided to apply a policy to require car park management companies to join an ATA to the claimant. I shall call this policy "the policy". This decision followed substantial correspondence and it is not alleged that there was a failure to consult before it was taken. The Interested Parties are clients of the claimant's business.
The decision letter first apologises for a misunderstanding and then sets the decision out as follows:-
"Your letter makes submissions about the nature of ProServe's business and of its clients. As before, I would not want to comment on anything that may still be discussed in a court. However, we would have to disagree that ProServe's activities are markedly different to those carried out by operators whom we require to obtain membership of an Accredited Trade Association (ATA) in order to request data.
"Although you have made the point that your primary purpose is to take action to ensure that your clients are protected against unlawful interference with their land, the nature of this interference is parking-related trespass, which is regarded as a relevant obligation in Schedule 4 of the Protection of Freedoms Act. The measure adopted by ProServe to enforce this where the use of the DVLA data is involved is the same as those of traditional parking operators, i.e. the imposition and pursuit of charges.
"The introduction of the ATA model and its subsequent extension to all parking companies came about in order to put in place parameters for operators without formal regulation or governance. You have set out your position with regard to matters such as signage, ticketing, charge levels and appeals, but these are matters which successive ministers have regarded as being for an ATA to monitor and ensure compliance with, so as to provide the necessary assurances to the DVLA that our data is being used appropriately. I should also point out that the minister's requirement is that motorists are offered an independent appeals service if the appeal is rejected by the company that issued the charge.
"I understand the points you have made about the services that you provide to your clients. However, the Agency is required to ensure that its disclosure of vehicle keeper data under the reasonable cause provisions is fair and lawful, and membership of an appropriate ATA for this type of operation is a key factor in informing the disclosure of data under these provisions.
"I have noted your conclusion that you believe membership of an ATA to be inappropriate. I note also your intention to consider legal action, and to advise your clients to seek the data direct. From DVLA's perspective, the position is not affected, and the requirement on you will also apply to your clients. Therefore unless you confirm that ProServe will make arrangements to obtain membership of an appropriate ATA by 2 July 2014, we will not provide further data for these purposes until ATA membership is obtained and confirmed."
I do not read the above letter as meaning that all clients of ProServe must be registered with an ATA in order to be allowed disclosure of data from the register. It means that the DVLA will not allow ProServe to avoid the application of its policy by making requests for disclosure in other names. The advice which ProServe said it had given to its clients was advice to request the data themselves so that they could pass it to ProServe for its use. The letter simply said that data would not be provided for the use of ProServe by any route unless ProServe was a member of an ATA.
Sections 54–56 of the Protection of Freedoms Act 2012 (POFA) and Schedule 4 to that Act prohibit wheel clamping and allow the recovery of parking charges from registered keepers in certain circumstances. The writer of the decision letter is correct to say that payment of damages for trespass where a vehicle has been left on land and there is no contract is a "relevant obligation" to pay what are described as "parking charges" in Schedule 4. The Schedule defines a parking charge as follows:-
"parking charge"—
(a) in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and
(b) in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages,
however the sum in question is described;"
Relevant obligation is defined as follows:-
"relevant obligation" means—
(a) an obligation arising under the terms of a relevant contract; or
(b) an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;"
The claimant formerly operated by using wheel clamps until this was prohibited, and in reality is seeking now to continue to provide a service which will discourage illegal parking on private land by other means. The purpose of the reference to the 2012 Act in the decision letter appears to be to make the point that, however the activity of ProServe is defined in law, it engages the provisions of the relevant legislation in the same way as other parking management methods and thus to support the decision to deal with ProServe in the same way as them.
The Challenge to the Decision in These Proceedings.
The claimant relies on 4 grounds and has permission from the Deputy High Court Judge to argue them all. It appears from the remarks of the Judge when granting permission at an oral hearing that he regarded some as more arguable than others, but he gave a...
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