Strauss v Royal Borough of Kensington & Chelsea

Case No. : 2050448466

Decision date: 29 July 2006

Key case heading: Human Rights

Reduced penalty

Pay & appeal

The Appellant raised an issue about the interpretation of section 66 of the Road Traffic Act 1991. He argued that on its proper interpretation a motorist can pay the reduced penalty charge and still go on to contest the penalty, ultimately by appealing to the parking adjudicator.

The Adjudicator said that the Road Traffic Act 1991 provided that where a Notice to Owner was served, the recipient might make representations to the local authority; and if those representations were rejected the recipient of the Notice of Rejection might then appeal to the parking adjudicator.

This scheme was, in his view, comprehensive and its interpretation straightforward.

Section 66(3)(c) prescribed a period of 28 days for payment of the penalty charge. If the penalty was not paid within that time, paragraph 1 of Schedule 6 empowered the local authority to pursue enforcement of the penalty charge by serving a Notice to Owner. There was then a mechanism for the recipient of the Notice to Owner to contest liability, ultimately by appealing to the parking adjudicator. But if the penalty charge was paid within the 28 days that was an end of the matter. There was then no power to serve a Notice to Owner, because, of course, there was nothing to pursue enforcement of. And it was only through the enforcement process starting with the Notice to Owner that the right to challenge the penalty and ultimately the right to appeal to the parking adjudicator arose. So, if the penalty charge was paid within the 28 days prescribed by section 66(3)(c), those rights never arose. Nor could the motorist require the local authority to serve a Notice to Owner where the penalty had been paid. There was no power to serve a Notice to Owner unless the penalty had not been paid.

The Adjudicator rejected the Appellant’s suggestion that the draftsman must have omitted to think of the possibility of paying and challenging. The scheme the draftsman had quite deliberately provided for was "pay or challenge".

There was no distinction in this respect between paying the full penalty or taking advantage of the reduced penalty available under section 66(3)(d). As the Appellant admitted, his argument relied on interpreting "paid" differently in sections 66(3)(d) and (e). There was no justification for so doing. It was generally presumed that the same word means the same thing if used in different provisions in the same statute. Here, the same word was used in successive paragraphs of a sub-section, and there was no reason for departing from the usual presumption.

But that was not the only reason. The Appellant treated paragraphs (c) and (d) as both making provision for payment of the penalty, but at different amounts. This was not so. It was paragraph (c) that dealt with the requirement to pay the penalty. Paragraph (d) did not set out any requirement to pay; it merely set out a particular consequence if the payment was made within the first 14 days.


The Adjudicator also rejected the Appellant’s argument that "one would naturally expect the provisions to permit payment under reserve, payment without prejudice to liability or conditional payment". It may be this was common practice in other areas, but the Appellant's reliance on this in this context was misconceived. This was a statutory scheme and one must take the scheme as it was on its ordinary and natural interpretation.

Nor, contrary to what the Appellant submitted, was there any need to imply anything to come to this interpretation. It was the ordinary and natural one. It was the Appellant who had to resort to implication for the interpretation he advocated.

This scheme did not breach the requirement under Article 6 of the European Convention of Human Rights for there to be an effective right of access to the tribunal. The provision for the reduced penalty served the clear public interest in providing an incentive to motorists to settle their parking penalties promptly and so minimise the need for the Council having to pursue enforcement through further action. To allow motorists to pay at the reduced rate but still go on to contest the penalty would plainly undermine that legitimate aim. Whilst proportionally a difference of 50% might seem high, the penalties themselves were relatively small and the difference between the full and reduced penalties was therefore modest in absolute terms. The difference must nevertheless be sufficient to provide some encouragement for prompt payment. The provision for the reduced penalty was therefore an entirely proportionate measure in relation to the legitimate aim it sought to achieve.

As to this case, the Appellant sent a cheque for £50 but said that he nevertheless wished to pursue the formal process following the Notice to Owner. This payment on terms was not a payment for the purposes of  section 66 of the 1991 Act. The local authority was therefore entitled to serve the Notice to Owner, because the penalty had not been paid in the sense required by the scheme.

Appeal refused.

19 July 2006