Herron & Anor, R (on the application of) v The Parking Adjudicator & Anor

Permission to bring judicial review should be granted where a proposed statutory argument is sufficiently arguable to warrant a full hearing, even if the judge is sceptical of its merits. A challenge to the independence and impartiality of parking adjudicators must consider the practical safeguards governing their appointment, tenure, professional status and decision-making. Funding by enforcing authorities does not, without more, establish a real possibility of bias. The fair-minded and informed observer must assess the system as it operates in practice.

The claimants challenged decisions of parking adjudicators concerning penalty charge notices issued within a controlled parking zone. They argued that road markings required accompanying signs because of other signs within the zone, that the adjudicators had failed to address their arguments adequately, and that the adjudication system was not independent or impartial for the purposes of article 6 of the Convention.

The court considered whether permission should be granted on the statutory-signage issue and the independence issue. Permission was also sought in relation to earlier adjudicator decisions and alleged inadequacy of reasons.

1. Statutory signage issue. The court was sceptical of the claimants’ construction of the statutory regime, but considered it sufficiently arguable to require a full hearing. Permission was therefore granted to challenge the later adjudicator’s decision to the extent that it found no reason to interfere with the earlier adjudicator’s interpretation and application of the law. The surviving issue concerned the circumstances in which road markings within a controlled parking zone must be accompanied by an appropriate sign on the same side of the road.
2. Earlier decisions and reasons. The challenge to the earlier adjudicator’s decision was out of time. The challenge to the later decision might nevertheless permit the issue to be addressed because the later adjudicator had adopted the earlier adjudicator’s reasons. The court refused permission on the grounds alleging inadequate consideration of the claimants’ arguments or insufficient reasons, since those issues did not need to be decided: success or failure on the core statutory argument would determine the claim regardless of the adequacy of the adjudicators’ reasoning.
3. Independence and impartiality. The test was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The court assessed the practical operation of the system, rather than treating the formal funding and administrative arrangements as determinative. Adjudicators were selected through open competition, appointed with the Lord Chancellor’s consent, removable only in limited circumstances with the consent of senior judicial officers, and subject to professional obligations and judicial review.
4. The funding arrangements did not create a financial incentive to uphold penalty charge notices. Funding was based on the number issued, not the number upheld, and the high proportion of successful appeals supported the adjudicators’ independence. Permission was refused on this ground.
5. The costs of the permission hearing were reserved to the judge hearing the substantive judicial review.

The judgment concerns a renewed application for permission to proceed with judicial review. Permission had previously been refused on the papers by Sir George Newman on 12 December 2008. The renewed application was adjourned by Dobbs J on 7 May 2009 to permit amendment of the claim form. Permission was granted on one core statutory issue and refused on the remaining grounds.