The Confederation of Passenger Transport UK v Humber Bridge Board & Anor

A court may correct an obvious drafting error in a statutory instrument only when it is abundantly sure of three matters: the provision’s intended purpose, an inadvertent failure to give effect to that purpose, and the substance of the provision that would have been made without the error. The court must remain within interpretation and must not undertake judicial legislation.

Where an order is ambiguous, obscure or productive of absurdity, its historical setting, explanatory note, decision letter and inquiry report may assist in identifying its objectively intended effect. Applying those principles, the omission of large buses from toll classifications was corrected so that they remained in the specified class and could be charged only at the intended maximum toll.

The Confederation, representing most public service vehicle operators, sought judicial review of the Secretary of State’s toll revision orders for the Humber Bridge. It contended that the Humber Bridge Board lacked authority to levy tolls on large buses under orders made in 1997, 2000 and 2002.

Newman J refused relief on 1 November 2002. He held that the references to large buses had been omitted by mistake from the 1997 and 2000 Orders and could be read into class 4. He held that the 2002 Order instead treated large buses as goods vehicles, with the applicable maximum toll determined by their number of axles.

The appeal concerned whether the court could correct the earlier drafting omissions and, for the 2002 Order, the proper toll classification of large buses.

1. Appeal dismissed unanimously. Clarke LJ, with Jonathan Parker and Auld LJJ agreeing, upheld the refusal of judicial review. The Board had authority to levy tolls on large buses under each order, subject to the maximum sums identified by the court.

2. The principles in [2000] 1 WLR 586 governed the correction of drafting mistakes in statutory instruments as well as primary legislation. A court may add, omit or substitute words only where it is abundantly sure of the intended purpose, the inadvertent failure to achieve it, and the substance of the provision that would have been made without the error. The exercise remains one of construction and must not become judicial legislation.

3. The 1997 and 2000 Orders contained an obvious inadvertent omission. Their definitions expressly referred to a large bus, their legislative history consistently placed large buses in class 4, and the explanatory notes and decision letters identified the intended increased toll. The court could therefore read “large bus” into class 4. The maximum tolls were respectively £9.20 and £9.60.

4. External materials were admissible because the relevant orders were ambiguous or absurd if read literally. Their use identified the objective intention of the instrument-maker, rather than the subjective intention of the draftsman.

5. The 2002 Order could not sensibly be read either as exempting large buses or as making them goods vehicles chargeable by axle number. Its history showed that the intended proposal was to continue to place all large buses in class 4. The proper construction therefore authorised a maximum toll of £10 for every large bus. The court rejected the judge’s axle-based construction on that issue.

6. Clarke LJ also indicated that an order which specifies particular traffic classes does not, without express provision, authorise the Board to charge an unlisted class at the rate for the nearest equivalent class.

• Court of Appeal (Civil Division): Dismissed the Confederation’s appeal. It upheld the refusal of judicial review but held that, under the 2002 Order, all large buses fell within class 4 and were subject to a maximum toll of £10.
• High Court, Queen’s Bench Division, Administrative Court: Newman J refused the application for judicial review on 1 November 2002. He read large buses into class 4 of the 1997 and 2000 Orders and treated large buses as goods vehicles under the 2002 Order.