|
Al's
V Bar – Ruling
Title: London Borough of Wandsworth
v Al's Bar & Restaurant Ltd
--------------------------------------------------------------------------------
Page No 1
London Borough of Wandsworth v Al's
Bar & Restuarant Ltd
Case
Reference: 2020106430 PCN: WA04516186
Decision
This is an application by the
Borough of Wandsworth ('the Council') for review of the
decision of the Parking
Adjudicator, Richard Crabb, on 2 July 2002 when he allowed the
appeal of Al's Bar & Restaurant
Ltd ('the Appellant') and directed the Council to cancel
the Penalty Charge Notice ('PCN')
and the Notice to Owner ('NTO'). I heard the
application on 10 October 2002. Mr
Pitt-Payne of Counsel represented the Council and
Mr Sutton the Appellant. The facts
as to the issue of the PCN are not in dispute. The issue
between the parties is the validity
of the PCN. The Appellant says that the PCN is invalid
and unenforceable because it does
not comply with the requirements as to content
prescribed by section 66 (3) of the
Road Traffic Act 1991. It provides as follows.
'(3)penalty charge notice must
state- grounds on which the parking attendant
believes that a penalty charge is
payable with respect to the vehicle; amount of the
penalty charge which is payable;
the penalty charge must be paid before the end of the
period of 28 days beginning with
the date of the notice; if the penalty charge is paid
before the end of the period of 14
days beginning with the date of the notice, the amount
of the penalty charge will be
reduced by the specified proportion; if the penalty charge is
not paid before the end of the 28
day period, a notice to owner may be served by the
London authority on the person
appearing to them to be the owner of the vehicle; address
to which payment of the penalty
charge must be sent. 'At the hearing of the original
appeal, which the Council did not
attend, Mr Crabb found, in essence, that the PCN did
not comply with the requirements of
paragraphs (c), (d) and (e) and that this rendered it
invalid. In doing so, he adopted
relevant parts of the judgment of District Judge Wigfield
in Sutton v London Borough of
Camden (In the Central London County Court Case No:
BT106545), a case heard earlier
this year (the exact date is unclear). This was a claim
under the Torts (Interference with
Goods) Act 1977 relating to the clamping of a vehicle.
It raised similar issues about the
validity of a PCN issued by Camden and the District
Judge found against Camden.On 19
August 2002 the Council applied by fax for a review
of Mr Crabb's decision, under
paragraph 11(1)(e) of the Road Traffic (Parking
Adjudicators)
(London) Regulations 1993. Regulation 11, as amended, provides,
so far as
relevant, as follows. '11. (1) The
adjudicator shall have power on the application of a
party, to review and revoke or vary
any decision to dismiss or allow an appeal or any
decision as to costs on the grounds
(in each case) that - ------------------------- (e) the
interests of justice require such a
review.-------------------------(3) An application under
this regulation shall be made to
the proper officer within 14 days after the date on which
the decision was sent to the
parties, and must state the grounds in full. (4) The parties
shall have the opportunity to be
heard on any application for review under this regulation;
and if, having reviewed the
decision, the adjudicator directs the decision to be set aside,
Top
--------------------------------------------------------------------------------
Page No 2
he shall substitute such decision
as he thinks fit or order a re-determination by either the
same or a different adjudicator.
(5)....................'The first issue I have to consider is
whether there should be a review of
the decision. Should there be a review? The
application was made outside the 14
days prescribed by regulation 11(3). However,
regulation 14(1)(a) empowers me to
extend that time notwithstanding that it may have
expired. The Council contended that
the interests of justice required a review because1)
the decision was of general
importance to the Council, and perhaps to other Local
Authorities, since it held that the
Council's current form of PCN did not comply with the
legislation. 2) the decision was
reached following an oral hearing in which the Council
did not take part 3) there were
important arguments and authorities that were not taken
into account by Mr Crabb 4) there
was no prejudice to the Appellant as the Council
would not in any event enforce the
particular PCN. Mr Pitt-Payne told me that the
Council was initially not minded to
apply for review but later decided to do so, given the
importance of the issues. He said
that the decision could affect a large number of PCNs
and the issues needed resolving
quickly. Whilst the Council would need to consider re-
drafting its PCN whatever the
outcome, this left open the question of whether past PCNs
were valid. If the issue were left,
there could be a collateral challenge in another forum,
as was the case in Sutton v Camden.
Mr Sutton argued that the Council had no arguable
case; that Mr Crabb's decision
disclosed no error in law. He also pointed out that the
Council had had the opportunity to
attend the original hearing; Mr Crabb had adjourned
the hearing to make them aware of
the Appellant's detailed submissions. Mr Pitt-Payne
told me that the adjournment letter
to the Council had apparently gone astray and it was
only when the Council received a
telephone call from the Parking and Traffic Appeals
Service on the day of the hearing
that they became aware of the position. By then it was
not possible to find someone to
attend. The crucial point in my view is that the case does
raise issues of general importance
concerning the decriminalised enforcement of traffic
controls. Clarification of these
issues would be of benefit to both Local Authorities and
the motoring public. It is
therefore right that it should be decided after full arguments
from both parties, an advantage Mr
Crabb did not have. I accordingly decided to proceed
with the review, notwithstanding
that the application had been made late.I now turn to
consider the substantive issues.
These are two. First, does the PCN comply with section
66(3)? Secondly, if not, what is
the effect of non-compliance with section 66(3)? The
second only arises, of course, if
the answer to the first is that it does not. Does the PCN
comply with section 66(3)?There is
no dispute that the PCN complies with paragraphs
(a), (b) and (f). The Appellant
contends it does not comply with (c), (d) and (e).Before
considering each of these in turn,
there is a preliminary point I must deal with. This is:
must the PCN follow the wording of
section 66 or may it use different words provided
that they mean the same? To put it
another way, must there be literal compliance or is
substantial compliance sufficient?
There is no doubt in my mind that substantial
compliance is sufficient. But this
should not be thought of as encouraging enthusiastic
departure from the statutory
language. Disciplined drafting dictates that where a statute
requires a document to contain
particular statements, the starting point for drafting a
Top
Page No 3
compliant document ought always be
that the statutory language should be carried across
to the document unless there are
very good reasons for doing otherwise. This is for the
very obvious reason that if the
statutory language is adopted, the opportunities for
challenging the document for
failure to comply with the statutory requirements, as in this
case, are eliminated. Local
Authorities, like other organisations, are encouraged to couch
their communications in plain
English, and of course this is to be applauded. But the
statutory requirements take
precedence over this laudable aim, and Local Authorities
must be aware that the language
they use, however plain, must bear the same meaning in
substance as that prescribed by the
statute. I now turn to consider compliance with each
of the paragraphs in issue. Section
66(3)(c): that the penalty charge must be paid before
the end of the period of 28 days
beginning with the date of the notice The PCN says this.
'You are therefore required to pay
the sum of ?80 within 28 days. 'This does not follow
the wording of the Act and
therefore does not literally comply. Does it comply in
substance? To decide, I must
examine the elements of paragraph (c).First, 'that the
penalty charge must be paid'. The
reference to 'the sum of ?80' in the above sentence
from the PCN is in fact the only
place in which the full amount of the penalty charge is
stated. It is referred to as a
'sum' rather than being specifically described as a penalty
charge. In fact, rather than being
simply the statement required by paragraph (c), the
sentence attempts to cover both (b)
and (c). Whilst compliance with (b) was not disputed
by the Appellant, it seems to me
that merely to describe the ?80 as 'the sum' is at best
unsatisfactory and at worst
non-compliance. The sentence that follows does refer to 'The
charge' (not penalty charge) being
reduced, but describing the full sum as a penalty
charge when it is first referred to
would avoid any doubts. Indeed, curiously the
expression penalty charge appears
nowhere in the PCN except as part of the term 'Penalty
Charge Notice'. It appears that the
draftsman of the PCN may not have appreciated the
distinction between the penalty
charge, which is the penalty payable, and the Penalty
Charge Notice, which gives notice
of the penalty charge payable. I say this because on
the back the Notice says 'If
payment of this Penalty Charge Notice is
received....'Reverting to paragraph
(c), Mr Pitt-Payne contended that 'You are required to
pay' means in substance the same as
'This sum must be paid'. I accept that 'are required'
means in substance the same as
'must'. Having said that, I cannot see that it is an
improvement. What could be plainer
than the simple word 'must'? But there is another
point on this element. Under
section 66(1) the parking attendant effects service of the
Penalty Charge Notice by either
fixing it to the vehicle or giving it to 'the person
appearing to him to be in charge of
the vehicle'. Under section 66(2) the person legally
liable for payment of a penalty
charge is the owner. It may or may not be that the person
in charge of the vehicle is the
owner. Therefore, the person who receives the Penalty
Charge Notice may or may not be the
person legally liable to pay the penalty charge. It is
no doubt for this reason that the
draftsman chose the impersonal 'that the penalty charge
must be paid'. For the notice to
say 'You are required to pay' will be an inaccurate
statement of the legal position in
a great many cases. In those circumstances, it cannot to
my mind be said that the
formulation in the PCN constitutes substantial compliance.
Turning to the next element, the
prescribed period for payment is 'before the end of the
period of 28 days beginning with
the date of the notice'. The PCN says 'within 28 days'.
The general rule is that where a
period is fixed for the taking of some step, the day of the
Top
Page No 4
act or event from which the period
runs is excluded in calculating the period. Mr Pitt-
Payne conceded that 'within 28
days' fell to be construed in accordance with this rule as
excluding the date on which the PCN
was issued. The wording does not literally comply
with paragraph (c), but does it
substantially comply? Mr Pitt-Payne referred me to Trow
v Ind Coope (West Midlands) Ltd
[1967] 2 All E.R. 900, which he conceded was against
him. This concerned the
interpretation of the Rules of the Supreme Court Order 6 rule
8(1), which provided that a writ
was valid 'for twelve months beginning with the date of
its issue'. The Court of Appeal
held that 'beginning with the date' included the day on
which the writ was issued and
ousted the general rule.Mr Pitt-Payne urged me to construe
this case narrowly; to treat it as
authority for the meaning of 'beginning with' only in the
context with which the Court was
concerned and as not applying to a penal or quasi-penal
administrative penalty. This is a
most unappealing proposition. If the term's meaning is
dependent on context, it would mean
that in every context where the term appeared there
would be likely to be uncertainty
as to its meaning. I would in any event have decisively
rejected it, but in any case it
seems to me to be inconsistent with the decision in Trow.
Furthermore, another authority,
Hare v Gocher [1962] 2 Q.B. 641, is to the same effect as
Trow: In Hare, where the words in
question were 'beginning with the commencement of
this Act' and 'beginning with the
date on which it is passed', Winn J concluded that the
phrase 'beginning with' was
especially used to avoid equivocation and to exclude the
ordinary rule. In Trow, Harman LJ
said 'I see no escape from the conclusion that where
the word "with" is used,
the first day is included'; and Salmon LJ said that 'Any period
of
time to be calculated as commencing
or beginning with a certain day must include that
day.' I emphasise: 'Any period'.
This makes clear that this is a matter not of context but of
the ordinary meaning of the
language. Mr Pitt-Payne argued that if the draftsman had
intended the first day to be
included, he could have made that clear by including words
such as 'including the day of issue
of the notice'. The answer to that is that given that the
meaning of the phrase chosen by the
draftsman is well established, any such
embellishment would have been
verbiage. Mr Pitt-Payne also argued that if the wording
of the PCN differed from the
language of the statute, the effect was to give an extra day
for payment to be made. If there
was an error, it was in favour of the person liable to pay;
so nobody was prejudiced by the
error. This argument might well be relevant to the
second substantive question - the
effect of non-compliance - but it does not support the
argument that the PCN is compliant.
The Local Authority has no power to extend the
statutory period as a matter of
law. The fact that it may as a matter of administrative
practice allow longer than the
prescribed periods (an issue I will return to) is a different
point and cannot justify a
misstatement of the legal position, which is the purpose of the
requirements of section 66(3).The
PCN therefore fails the compliance test in this regard
also There is a further point on
this second element. In order to calculate the period, it is
necessary to know 'the date of the
notice'. Implicitly, therefore, paragraph (c) requires the
notice to bear its date. The date
'20/11/01' appears twice on the PCN. It appears about
halfway down where it is stated
that the vehicle 'was seen in Lockington Road SW8 at
| 
