Factual and Procedural Background
The appeal arises from an attempt by Company A, in conjunction with the Respondent, to regulate traffic flow in The City through two Experimental Traffic Regulation Orders ("ETROs") aimed at reducing congestion and improving air quality. These ETROs were first considered in March 2010, implemented on 17th March 2013, but suspended on 21st April 2013 and eventually expired in late 2014. The Appellant, a disabled person and chair of a related group, challenged the ETROs on the basis that they unlawfully removed disabled parking near the High Street, The City, and that alternative provisions were inadequate.
Pursuant to Schedule 9 of the Road Traffic Regulation Act 1984 ("RTRA 1984"), the Appellant applied for a statutory review alleging that the ETROs were unlawful and ultra vires, specifically contending breaches of the Equality Act 2010 ("the 2010 Act") concerning discrimination and failure to make reasonable adjustments under sections 29 and 149. The High Court dismissed the application and ordered the Appellant to pay costs. By the time of this appeal, the ETROs had expired.
Legal Issues Presented
- Whether the appeal is academic and should be entertained.
- Whether the High Court or the County Court had jurisdiction to entertain the Appellant's application for statutory review concerning alleged breaches of the Equality Act 2010.
Arguments of the Parties
Appellant's Arguments
- The appeal was not academic and raised issues of wider importance, including costs and jurisdiction.
- There could be no statutory lacuna; a forum must exist for disabled persons to challenge breaches of section 29 of the 2010 Act.
- The ouster clause in Schedule 9 of the RTRA 1984 precluded challenges except in the High Court, thus the statutory review did not fall within section 113(1) of the 2010 Act or alternatively should be characterized as judicial review under the exception in section 113(3).
- The rejection of the claim under section 149 did not preclude success on section 29, as section 149 imposes a procedural duty whereas section 29 requires substantive consideration of reasonable adjustments.
Respondent's Arguments
- The appeal was academic and moot due to expiry of the ETROs and should be dismissed summarily.
- If heard, the High Court's decision on jurisdiction should be upheld as claims under section 29 belong in the County Court and typically involve fact-sensitive issues.
- The use of section 29 claims here was peculiar and unnecessary, with no breach of private rights or claim for damages.
- The Human Rights argument regarding the ouster clause was not raised below and was unsupported.
- The public sector equality duty under section 149 was the proper safeguard, which had been discharged.
- Statutory review is distinct from judicial review, which is a last resort jurisdiction.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 590 |
Doctrine of implied repeal and statutory interpretation principles. |
Supported the principle that later statutes impliedly repeal earlier inconsistent provisions. |
| Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 |
Application of implied repeal doctrine and treatment of constitutional statutes. |
Considered inapplicable exception for constitutional statutes; confirmed implied repeal where statutes conflict. |
| Pattison v Finningley Internal Drainage Bd. [1970] 2 QB 33 |
Qualification to implied repeal doctrine where earlier enactment is particular and later general. |
Referenced to distinguish the nature of statutes involved in the present conflict. |
| R v Home Secretary, Ex p Salem [1999] 1 AC 450 |
Discretion to hear academic appeals in public law cases. |
Guided the court’s discretion to hear or dismiss the appeal as academic. |
| Hutcheson v Popdog Ltd [2011] EWCA Civ 1580; [2012] 1 WLR 782 |
Criteria for allowing academic appeals to proceed. |
Informed the court’s cautious approach to proceeding with a moot appeal. |
| R (Bushell) v Newcastle Licensing Justices [2006] UKHL 7; [2006] 1 WLR 496 |
Consideration of costs as a factor in deciding whether to hear academic appeals. |
Referenced in weighing the relevance of costs issues in deciding to proceed. |
| R (On the Application of Great Yarmouth Port Company Ltd) v Marine Management Organisation [2013] EWHC 3052 (Admin) |
Judicial review as a last resort jurisdiction when other remedies exist. |
Supported the distinction between statutory review and judicial review in this case. |
Court's Reasoning and Analysis
The court began by identifying two main issues: whether the appeal was academic and whether the High Court or County Court had jurisdiction over the statutory review application. It was undisputed that the High Court had jurisdiction over claims alleging breach of the public sector equality duty (section 149 of the 2010 Act). However, a jurisdictional conflict existed regarding claims under section 29 of the 2010 Act, as the RTRA 1984 vested jurisdiction in the High Court for statutory reviews of ETROs, while Part 9 of the 2010 Act provided for County Court jurisdiction over contraventions of the Act.
The court rejected the Appellant's attempts to avoid this conflict by characterizing the statutory review as outside the meaning of "proceedings" under section 113(1) of the 2010 Act or as judicial review under section 113(3). The court emphasized that statutory review under the RTRA 1984 is distinct from judicial review, notably because statutory review proceeds as of right without permission, unlike judicial review.
Applying the doctrine of implied repeal, the court held that the later statute, the 2010 Act, impliedly repealed the conflicting jurisdictional provisions of the earlier RTRA 1984 to the extent necessary. This meant that jurisdiction over alleged breaches of section 29 of the 2010 Act lies with the County Court, not the High Court, and that the ouster clause in Schedule 9 of the RTRA 1984 must be treated as impliedly repealed to allow County Court jurisdiction.
The court noted the practical advantages of this approach, as the County Court is better suited to resolve fact-intensive disputes under section 29 and has power to grant remedies akin to those of the High Court in judicial review claims. The High Court retains jurisdiction over procedural claims under section 149.
Regarding whether the appeal was academic, the court acknowledged that the ETROs had expired, rendering the substantive issues moot. The court exercised its discretion to hear the appeal de bene esse but concluded that the appeal could have been dismissed summarily as academic. The court emphasized caution in entertaining academic appeals, particularly where only costs remain in issue, and noted the absence of evidence of a wider class of similar cases or significant public interest justifying the appeal.
Holding and Implications
The court UPHELD the decision of the lower court, dismissing the appeal on the jurisdiction issue. It held that the County Court, not the High Court, had jurisdiction to consider challenges to ETROs based on alleged contraventions of section 29 of the Equality Act 2010, due to implied repeal of conflicting provisions in the Road Traffic Regulation Act 1984.
The appeal was also deemed academic as the ETROs had expired, and the court exercised caution in allowing such appeals to proceed. The direct effect is that future claims alleging breaches of section 29 must be pursued in the County Court under the 2010 Act’s procedures, while claims relating to the public sector equality duty under section 149 remain within the High Court’s jurisdiction. No new precedent beyond these jurisdictional clarifications was established.