Shiva Ltd v Transport for London & Anor

Under the statutory scheme governing removal of vehicles in London, the lawfulness of removal depends on whether the parking attendant had reasonable grounds to believe that a parking contravention had occurred. It does not depend on whether the contravention was ultimately proved. The separate procedure for challenging a penalty charge, including establishing that the alleged contravention did not occur, does not enlarge the limited grounds for challenging removal. Where reasonable grounds existed, the removal is lawful and the owner has no damages remedy for consequential loss under the statutory scheme.

Shiva Ltd’s vehicle was removed from a London red-route loading bay after a parking attendant observed it for four minutes and saw no loading or unloading. Shiva accepted that the attendant was entitled to issue a penalty charge notice, but disputed the power to remove the vehicle because the vehicle had in fact been parked for loading.

The penalty charge and removal payments were repaid administratively. Shiva nevertheless claimed a declaration that the removal was unlawful and damages for spoiled flowers and loss of use. HHJ Welchman dismissed the claim on the small claims track. Shiva appealed with permission. The central issue was whether removal was lawful where the attendant had reasonable grounds to believe that a contravention had occurred, although the vehicle was in fact being used for loading.

1. Appeal dismissed. The statutory provisions governing penalty charges and vehicle removal are separate, although they are related.
2. Under Road Traffic Act 1991, section 66 and Schedule 6, a penalty charge is payable only where one of the statutory circumstances exists. An owner may challenge the charge on the ground that the alleged contravention did not occur. Since the vehicle was being used for loading, the penalty charge was not ultimately payable, but that issue had to be pursued through the procedure in Schedule 6.
3. Removal was governed by section 99 of the Road Traffic Regulation Act 1984 and paragraph 5A of the Removal & Disposal of Vehicles Regulations 1986. Paragraph 5A referred to a contravention having occurred, rather than to the attendant having reason to believe that it had occurred.
4. That wording had to be read with sections 71 and 72 of the Road Traffic Act 1991. The owner’s limited ground of representation against removal was that there were no reasonable grounds for the attendant to believe that the vehicle had been left in circumstances engaging section 66(2). The legislation therefore made reasonable grounds, rather than the ultimate truth of the alleged contravention, the relevant criterion for removal.
5. As the attendant had reasonable grounds for believing that a contravention had occurred, removal was lawful and Shiva was not entitled to repayment of the removal charge as of right. The court further held that, where such reasonable grounds existed, the owner had no remedy for consequential loss even if the vehicle was in fact being used for loading. The court did not decide the position where reasonable grounds were absent.
6. No order for costs was made because the claim had been allocated to the small claims track, subject to the limited costs power in CPR 27.14(2).

• High Court (Queen’s Bench Division): Shiva’s appeal from the dismissal of its claim by HHJ Welchman was dismissed.
• County Court: HHJ Welchman dismissed Shiva’s claim after trial on 3 August 2010.