Camden London Borough Council v Humphreys & Anor (Rev 1)

An appellate court may refuse to hear a pure point of law raised by a party which knew of the proceedings but neither participated nor explained its absence. Relevant considerations include whether the point was identified below, whether the respondent had an adequate opportunity to address it, and whether determining it would be fair and consistent with the overriding objective.

The court therefore left unresolved whether parking liability arises when a vehicle remains in a bay which is suspended only after it was lawfully parked. Observations favouring strict liability did not establish a binding precedent.

A motorcyclist lawfully left his moped in an unrestricted parking bay. The council subsequently displayed a notice suspending the bay and issued a penalty charge while the moped remained there. A parking adjudicator found that a contravention had occurred but recommended cancellation because of compelling circumstances.

The Administrative Court allowed the motorcyclist’s judicial review claim and substituted a decision that no contravention had occurred or that compelling reasons required cancellation: [2015] EWHC 713 (Admin). Although aware of the claim, the council had not participated in those proceedings.

The central issue on appeal was whether the council should be permitted to contest the claim for the first time in the Court of Appeal. The proposed substantive issues concerned strict liability under the parking legislation, the adjudicator’s remedial powers and the adequacy of her reasons.

1. The appeal was dismissed. The council was not permitted to contest the judicial review proceedings for the first time in the Court of Appeal. It had known of the claim for approximately eleven months before the High Court hearing, yet had neither participated nor explained its failure to do so. The point now advanced depended upon article 9.3 of the Camden (Waiting and Loading Restrictions) (Civil Enforcement Area) Traffic Order 2012, which had not been identified before the adjudicator or the Administrative Court. The respondent, now acting in person, had consequently lost the opportunity to have the construction issue argued below with professional assistance. The conditions governing the reception of a new pure point of law on appeal were not adequately satisfied (per Beatson and McCombe LJJ; Briggs LJ agreeing): paras 29–34, 61–73, 84.

2. The substantive construction issue was therefore left for a properly argued case. Beatson LJ was inclined to regard the scheme as imposing strict liability whenever a vehicle remained in a motorcycle bay during a valid suspension. Paragraph 2(1) of Schedule 7 to the Traffic Management Act 2004, regulation 5 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and article 9.3 of the 2012 Order supported that view. Briggs LJ shared that inclination but emphasised that it created no binding precedent. McCombe LJ considered that the reference to signage and the words “cause or permit” arguably required fault or awareness. The point remained unresolved: paras 41–48, 59, 61–63, 74–83.

3. Beatson LJ further considered that, where a contravention is established, regulation 7(4) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 permits an adjudicator only to recommend cancellation for compelling reasons. It does not empower the adjudicator to require cancellation. The enforcement authority’s refusal remains amenable to judicial review on ordinary public law grounds: paras 49–51, 60.

4. Beatson LJ also considered the adjudicator’s reasons adequate. They made clear that the presence of the vehicle during the suspension was regarded as sufficient and enabled the motorcyclist to understand the result and assess a challenge. The different treatment of whether a contravention occurred and whether compelling reasons justified a recommendation involved no inconsistency: paras 52–57.

1. Court of Appeal (Civil Division): The council’s appeal was dismissed because it was not permitted to contest the judicial review claim for the first time on appeal: [2017] EWCA Civ 24.
2. High Court, Administrative Court: The court allowed the motorcyclist’s judicial review claim, quashed the adjudicator’s decision and substituted a decision that no contravention had occurred or that compelling reasons required cancellation: [2015] EWHC 713 (Admin).
3. Parking adjudicator: The adjudicator dismissed the appeal against the penalty charge but recommended cancellation because compelling reasons existed.