Hamnett v Essex County Council

This appeal concerned whether the High Court or the County Court had jurisdiction to entertain a statutory review under Part VI of Schedule 9 to the Road Traffic Regulation Act 1984 (ETROs) where the claim alleged breaches of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions). The Court held that a conflict of jurisdiction existed between Schedule 9 to the RTRA 1984 (High Court statutory review jurisdiction) and Part 9 of the Equality Act 2010 (County Court jurisdiction for proceedings relating to contraventions of that Act).

The court applied the common law doctrine of implied repeal and concluded that, to the extent necessary, the County Court jurisdiction conferred by Part 9 of the Equality Act 2010 displaces the rival High Court jurisdiction in Schedule 9 of the RTRA 1984 for claims based on section 29. By contrast, complaints based on the public sector equality duty (section 149) remain within High Court jurisdiction. The appeal was dismissed on jurisdictional grounds, and the court observed that the appeal could also correctly have been refused as academic given that the ETROs had expired.

Background and parties: The appellant challenged two Experimental Traffic Regulation Orders (ETROs) made in Colchester by Colchester City Council in conjunction with Essex County Council. The ETROs, designed to regulate High Street traffic, were made in March 2013, suspended in April 2013 and expired some months later. The appellant, a disabled person and chair of a related group, sought statutory review under Part VI of Schedule 9 to the Road Traffic Regulation Act 1984, alleging unlawful discrimination and failure to make reasonable adjustments contrary to sections 29 (discrimination in the exercise of public functions), 20 and 15 and the public sector equality duty in section 149 of the Equality Act 2010.

Procedural posture: The claim was heard in the Administrative Court by Singh J ([2014] EWHC 246 (Admin)), who dismissed the statutory review and ordered the appellant to pay the respondent's costs. The appellant obtained permission from Singh J to appeal solely on the point of jurisdiction and appealed to the Court of Appeal.

Nature of the relief sought: The applicant sought statutory review of the ETROs and consequential relief on the basis that the ETROs were ultra vires because they contravened the Equality Act 2010.

Issues framed by the court:

• Which court has jurisdiction to entertain an application challenging an ETRO insofar as the challenge alleges contravention of section 29 of the Equality Act 2010: the High Court under Schedule 9 to the RTRA 1984 or the County Court under Part 9 of the Equality Act 2010?
• Whether the appeal was academic and should not be entertained because the ETROs had expired.

Reasoning and disposition:

• The court accepted there was a real conflict of statutory jurisdiction: Schedule 9 to the RTRA 1984 directs challenges to ETROs to the High Court, whereas section 113 and section 114 of the Equality Act 2010 direct proceedings relating to contraventions of that Act to the County Court. The court rejected characterising a statutory review as a claim for judicial review so as to bring it within the judicial review exception in section 113(3).
• Applying the doctrine of implied repeal, the court concluded that the later Equality Act 2010 Part 9 provision must prevail to the extent of any irreconcilable conflict: challenges to ETROs based on section 29 must be brought in the County Court. The court emphasised that section 149 claims (the public sector equality duty) continue to be within High Court jurisdiction.
• The Court of Appeal upheld Singh J's decision on jurisdiction for essentially the reasons the judge gave but expanded upon the implied repeal analysis. The court also observed that the appeal could properly have been dismissed as academic because the ETROs had expired and no substantive relief beyond costs remained in issue.

Appeal dismissed. The Court of Appeal held that, insofar as a statutory review of ETROs alleges contravention of section 29 of the Equality Act 2010, the County Court has jurisdiction under Part 9 of the Equality Act 2010 and the High Court jurisdiction in Part VI of Schedule 9 to the Road Traffic Regulation Act 1984 is impliedly repealed to the extent of the inconsistency. The court further held that claims based on the public sector equality duty (section 149) remain for the High Court. The appeal was also arguably academic because the ETROs had expired and no substantive relief remained.

Appeal from the Queen's Bench Division, Administrative Court (Singh J) [2014] EWHC 246 (Admin). Singh J dismissed the statutory review application and ordered the appellant to pay the respondent's costs; the appellant appealed to the Court of Appeal with leave on the jurisdiction point.