Culligan, R (on the application of) v Parking Appeals Service

A decision reached through an appeal and review process should not ordinarily be reopened years later merely because a later judgment reveals that a legal argument might have produced a different result. Finality in litigation requires exceptional circumstances and a need to avoid real injustice before a concluded decision is reopened. The court must also consider proportionality when reviewing a discretionary refusal to permit a very late review. A relatively small financial penalty, the passage of several years and the availability of the relevant legal argument at the original appeal stage may justify refusing permission for judicial review.

The claimant challenged the Parking Appeals Service’s refusal, dated 23 November 2007, to conduct a further review of a parking penalty case. The penalty notice had been issued in November 2004. The claimant’s statutory appeal was dismissed in August 2005, and an application for review was rejected later that month.

After R (on the application of the London Borough of Barnet) v The Parking Adjudicator [2006] EWHC 2357 Admin, the claimant sought to reopen the matter because his notice did not contain two dates. The central issue was whether the refusal of a second review, made more than two years after the first review had failed, disclosed an error of principle amenable to judicial review.

1. The renewed application for permission to apply for judicial review was refused. The defendant had exercised its discretion not to permit a further review, and the court found no error of principle.

2. Finality in litigation is a material principle. The subsequent discovery that the law was different from what had been assumed when an earlier decision was made does not, by itself, justify reopening that decision. This remains so where the legal argument was available to the litigant at the time and might have led to a different outcome.

3. By analogy with the power to set aside decisions and the Court of Appeal’s power to reopen a final determination, reopening requires circumstances that are exceptional and make it necessary to do so in order to avoid real injustice. The mere benefit of hindsight is insufficient.

4. Proportionality is also relevant to judicial review of a discretionary decision concerning a substantially out-of-time review. The court should consider the amount at stake, the age of the underlying penalty and the procedural history. Here, the sum was £155, the notice had been issued more than three and a half years earlier, and the claimant had already pursued an appeal and review.

5. The claimant’s point concerning the contents of the notice had been plainly available at the time of the original appeal. There was therefore no good reason to allow a second review years after the first review had been refused. The renewed application was refused, with no application for costs being made by the defendant.

The judgment concerns a renewed application for permission to apply for judicial review. The claimant had previously pursued a statutory appeal and a review before the Parking Appeals Service. The present court refused permission to challenge the later refusal of a further review.