Dispute over incorrectly served LEZ notice remitted to First-tier Tribunal by Inner House

About this case:

• Citation:
  [2025] CSIH 2
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

Glasgow City Council sent a penalty charge notice to motorist Allan Hamilton on 11 August 2023, a few months after Glasgow’s LEZ scheme came into force. The appellant argued before the Inner House that Parliament had not intended for a failure to comply with procedural requirements to render a penalty charge no longer payable.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, with Lord Malcolm and Lord Pentland, who delivered the opinion of the court. Crawford KC and Blair, advocate, appeared for the appellant and Welsh, advocate, as an amicus curiae in light of Mr Hamilton’s decision not to take part in the appeal.

Purely technical point

Mr Hamilton did not dispute receiving a penalty charge notice from the appellant via ordinary post. He had responded to it by sending representations to the appellant in the space provided for this purpose on the notice. The appellant did not accept Mr Hamilton’s representations, prompting him to appeal to the First-tier Tribunal.

It was accepted by the appellant that the penalty charge notice served on Mr Hamilton was not validly served and should have been sent to him by registered post or recorded delivery. The same mistake as to delivery method had been made in other cases in the early days of the scheme. The chamber president of the tribunal held that the rules on service were mandatory rather than directory, therefore rendering the notice unenforceable.

In refusing the appellant’s first appeal, the Upper Tribunal held that it was irrelevant that there had been no substantive unfairness to Mr Hamilton. The judge considered that it was the intention of Parliament that charges required to be served in the way laid down in the legislation, seeking to follow the English case of R v Soneji (2006).

For the appellant it was submitted that Parliament could not have intended for a person who had breached the 2021 Regulations governing the implementation of LEZs in Scotland to escape liability on a purely technical point. It could not be said that the protection of public and private interests necessitated an absolute requirement of notice by way of recorded or registered delivery.

In his submissions, the amicus curiae argued that it was open to the Scottish ministers to provide for any method for the issuing of penalty charges. This was a bright line case where they had made a deliberate decision not to allow their service by regular post.

‘Procedural cart before substantive horse’

In the opinion of the court, Lord Pentland began with some general observations: “Over the years the courts have often been called on to consider the consequences of failure to comply with procedural requirements laid down in statutes for the exercise of powers which the statute confers. The issue can arise in the sphere of public law and also in the private law domain. Often the legislation does not provide expressly for what the legal consequences of such a failure are to be. Difficult questions can then arise.”

Considering the case of R v Soneji, he added: “In R v Soneji [2006] the House of Lords held that a failure to comply with a statutory requirement concerning the making of confiscation orders pursuant to the proceeds of crime legislation was not fatal to the validity of the orders. Lord Steyn explained that the dichotomy which had evolved over the preceding 130 years between mandatory and directory requirements (the former requiring strict compliance and the latter generally not) was no longer seen as providing a useful framework for addressing the issue of the consequence of non- compliance.”

Applying the guidance given by the case law, Lord Pentland said: “There is no doubt, as the amicus curiae emphasised, that the PCN has to contain important information and guidance for the person to whom it is sent. Without such information there is no guarantee that the recipient will have been made aware of his alleged liability to pay a penalty, its amount, by when it is due and how and within what timescales he is entitled to challenge it. But again, all this says and implies nothing about the method of service of the PCN and whether it must be served in a particular way in order to be effective.”

On whether Parliament intended for incorrectly served noticed to be unenforceable, he went on to say: “This seems an inherently unlikely interpretation of Parliamentary intention. It would mean that Parliament intended in every case to put the procedural cart before the substantive horse to such an extent that an inconsequential lapse in procedure would inevitably defeat the substantive purpose of the legislation; form would be allowed always to triumph over substance.”

Lord Pentland concluded: “In an abstract sense the submissions of the amicus curiae are correct: the motorist needs to be fairly informed about the alleged contravention, as to his rights to challenge it, and about the penalties and time limits. But in a concrete sense these submissions are beside the point. On the facts of the case there is no live issue about any of these aspects. Mr Hamilton has lost nothing of significance so far as the statutory regime is concerned and the inference is that Parliament intended that service of the PCN should be effective notwithstanding the omission to comply with the prescribed procedure.”

The appeal was therefore allowed, and the case remitted to a differently-constituted First-tier Tribunal to address the case on its merits.