DHL International (UK) Ltd ('DHL'), R (on the application of) v The Office of Communications ('oFcom')

The statutory expression “by post” is broad. It is not confined to the practices historically associated with the Post Office or Royal Mail. Collection of parcels from a sender’s premises may begin transmission by post, and the means of conveyance, international carriage arrangements, customs arrangements and absence of postage labels do not prevent a courier from being a postal operator.

An information demand under Schedule 8 to the Postal Services Act 2011 must be proportionate to its intended use. That requires consideration of the burden on the recipient as well as the regulatory purpose. An interim policy adapted from an existing information-gathering policy may satisfy the statutory requirement where it provides a reasonable and legitimate policy framework.

DHL, an international door-to-door courier, sought judicial review of an information request served by Ofcom under section 55 and Schedule 8 to the Postal Services Act 2011. The request sought information about DHL’s parcels business on the basis that DHL was a postal operator, alternatively a person appearing to have information required for Ofcom’s postal functions.

The claim challenged DHL’s classification, the alternative statutory basis of the request, the validity of Ofcom’s information-gathering policy, and the proportionality of the requested information. The central issues were whether DHL provided services “by post”, whether the request was validly addressed to DHL, and whether its requirements were proportionate.

1. Claim dismissed. DHL was a postal operator within section 27 of the Postal Services Act 2011. The statutory history showed that “by post” was not limited to the traditional Post Office model.

2. The combined effect of sections 87(2)(a) and (b) of the Post Office Act 1953 was that delivery of a packet to an authorised postman constituted collection and placed it in the course of transmission by post. The Post Office’s power was not limited by the fact that direct collection from premises might not then have been usual.

3. The later Post Office Act 1969, British Telecommunications Act 1981, Postal Services Act 2000 and Postal Services Act 2011 did not narrow the established meaning. Collection from premises, international carriage by air, direct customs arrangements, identification of consignors or contents, and the absence of stamps or franking were not legally determinative.

4. The formal notice was properly construed in the light of the preceding drafts and correspondence. It was primarily addressed to DHL as a postal operator and alternatively as a person within Schedule 8 paragraph 1(2)(c).

5. Ofcom had complied with Schedule 8 paragraph 14 by adopting, on an interim and appropriately qualified basis, its existing information-gathering policy under section 145 of the Communications Act 2003. The policy’s inapplicable provisions did not invalidate the read-across. The presumption of regularity also defeated DHL’s collateral challenge to the policy.

6. Schedule 8 paragraph 1(4) required an assessment of whether the burden or inconvenience to the recipient was proportionate to the reasons for gathering the information. The requests were justified by Ofcom’s statutory duty concerning the financial sustainability and efficiency of the universal postal service. The administrative burden, intended repetition, competitive nature of the courier market and selection of operators did not make the requests disproportionate.