Confederation of Passenger Transport UK v Humber Bridge Board & Anor

A court may correct an obvious drafting error in delegated legislation where it is abundantly sure of the provision’s intended purpose, the draftsman’s inadvertent failure to achieve that purpose, and the substance of the provision that would otherwise have been made. The correction must remain within the judicial function of interpretation.

Where the instrument itself reveals an omission, ambiguity, obscurity or absurdity, its historical context and legitimate external aids may identify both the purpose and the required correction. Those aids may include an explanatory note, a ministerial decision letter and the report of the statutory inquiry which immediately preceded the instrument.

A statutory authority may levy a toll only where clear and distinct statutory authority permits it.

The Humber Bridge Board levied tolls on large buses under statutory instruments made in 1997, 2000 and 2002. The 1997 and 2000 instruments defined “large bus” but omitted that class from their operative charging schedules. The 2002 instrument omitted the expression altogether.

The Confederation of Passenger Transport UK sought judicial review, contending that the instruments did not authorise the tolls. Newman J refused the application. He read “large bus” into class 4 of the 1997 and 2000 instruments and held that large buses were “goods vehicles” under the 2002 instrument, with tolls varying by axle number.

The Confederation appealed. The central questions were whether the earlier omissions could be corrected by construction and whether the 2002 instrument authorised a toll on large buses and, if so, at what rate.

1. The appeal was dismissed unanimously. The Board was authorised to charge maximum tolls of £9.20 under the 1997 Order, £9.60 under the 2000 Order and £10 under the 2002 Order. Leave to appeal was refused.

2. Per Clarke LJ, with whom Jonathan Parker and Auld LJJ agreed, clear and distinct statutory authority was required before the Board could levy a toll. A vehicle belonging to an unidentified class could not simply be charged at the rate applicable to the nearest equivalent class.

3. The principles in Jones v Wrotham Park Estates and Inco Europe Ltd v First Choice Distribution applied to statutory instruments. A court may correct a plain drafting mistake only when it is abundantly sure of the intended purpose, the inadvertent failure to give effect to that purpose, and the substance of the provision that would have been made. The proposed alteration must remain consistent with the judicial role of interpretation.

4. The 1997 Order itself disclosed an obvious mistake. It defined “large bus” but omitted that class from the charging schedule. The instrument’s history, explanatory note, ministerial decision letter and inspector’s report showed unequivocally that large buses were intended to fall within class 4. The Order was therefore to be read as containing the words “large bus” in that class. The materially identical 2000 Order received the same construction.

5. The 2002 Order was ambiguous, obscure and productive of absurdity. Neither the exclusion of large buses from all tolls nor their treatment as goods vehicles charged according to axle number made sense in the statutory and historical context. The inspector’s report and ministerial decision letter established that the intended proposal retained large buses in class 4 at four times the car toll.

6. The judge’s conclusion that a large bus was a goods vehicle carrying a “burden” and could attract a higher toll according to its axles was rejected. On the true construction of the 2002 Order, every large bus fell within class 4 and the maximum toll was £10.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the refusal of judicial review, while rejecting the judge’s construction of the 2002 Order and holding that all large buses were subject to the £10 class 4 maximum.
2. High Court, Queen’s Bench Division, Administrative Court: Newman J refused the application for judicial review on 1 November 2002. He held that “large bus” could be read into the 1997 and 2000 Orders and that large buses fell within the definition of goods vehicles in the 2002 Order. No citation is stated.