New Court 1 Barnes Wallis Road
Segensworth Fareham Hampshire PO15 5UA
DX 132290 Fareham 5
DDI: + 44 (0) 01489555277
T: + 44 (0) 1489 579990
F: + 44 (0) 01489581106
E:
barry.culshaw@bllaw.co.ukwww.bllaw.co.uk Our Ref:
4 January 2008 Your Ref:
Re: A27 Fixed Penalties
I am writing to you as one of a number of motorists who have been in contact with this office on the issue of fixed penalties imposed for alleged speeding offences on the A27 following the Judgments of District Judge Gillibrand delivered at Portsmouth Magistrates Court on 8 & 11 October 2007 respectively. In my view the Judgments of District Judge Gillibrand have relevance to all fixed penalties imposed in recent years at four camera enforcement sites at A27 Cams Hill, Fareham; A27 Eastern Way, Fareham; A27 Western Way, Fareham and A27 Southampton Road, Titchfield. The Judgments would only have relevance to those motorists alleged to have contravened the 40 mph speed limits at these four enforcement sites.
In all some 31 motorists have lodged questionnaires or otherwise made enquiries of this office on this issue. I have received instructions from twelve motorists with regard to the making of representations to the Safer Roads Partnership in regard to the Partnership's decision not to refund fixed penalties and not to make arrangements for the removal of relevant endorsements. This decision appears to have been based upon advice received from the Crown Prosecution Service and there would appear to be three basic considerations which led to the decision:-
1. The decisions of District Judge Gillibrand applied only to those individual cases on the basis of the evidence that he heard.
2. Legislation required the Partnership to give adequate guidance to motorists of the speed limit. Anyone caught speeding on the A27 would have passed at least two speed limit signs before their speed was checked.
3. The Partnership claim to have acted in the interests of road safety.
Over the past weeks I have been engaged in correspondence with the Safer Roads Partnership. In my view the decision of the Partnership is based upon fundamental errors in law, is unreasonable and that at arriving at the decision irrelevant issues were taken into account and relevant issued disregarded. The thrust of my representations have been along the following lines:-
1. Although it is correct to say that the Judgments of the District Judge bind only those individual cases with which he was dealing and although the Judgments do not constitute a precedent binding any other court the reality of the position is that the Judgments must be of persuasive value to a court determining an allegation of speeding on the A27 which concerns any of the four enforcement sites. The signing in question has effectively remained unchanged over a number of years and still, as far as I am aware, remains in its flawed state to date. The District Judge felt constrained by the provisions of Section 85(4) of the Road Traffic Regulation Act 1984 to the effect that he was prohibited from convicting any motorist for contravening the speed limits as adequate guidance was not given to motorists of the 40 mph speed limits. Evidence was heard by the court throughout the week in October to the effect that the signing regimes at the four enforcement sites had been largely unaltered and, in any event, any change failed to address the flaws in the terminal signing. If it was considered that the District Judge was wrong in law then it was incumbent upon the Crown Prosecution Service to appeal against the Judgments by way of case stated to the High Court. The Crown failed to challenge the Judgments in that way.
2. The decision of the Partnership appeared to suggest that adequate guidance was given to motorists of the applicable speed limits. That observation, of course, runs completely contrary to the Judgments of District Judge Gillibrand. The reference to motorists having passed "at least two speed limit signs before their speed was checked" is a far too simplistic an observation and has no basis in law. The problem with all four enforcement sites is that motorists can gain access to the heart of the enforcement sites without passing at certain junctions any compliant terminal signing. The fact that motorists may have passed at least two repeater signs before the speed check is completely irrelevant. It has to be the law that the signing of a speed limit cannot be rendered lawful by repeater signing where there is not in place initial signing at the commencement of the speed limit.
3. Road safety is not a relevant factor in arriving at the decision and my representations were given even greater force by the fact that it would appear that the Chief Constable suspended enforcement in the area which, of course, implies a perceived problem. Comments have been made by the Safety Camera Partnership to the local press to the effect that enforcement was suspended pending an audit of signs. Assuming, therefore, that there is an ongoing audit of the signing regimes at the enforcement sites I cannot begin to understand how the Safer Roads Partnership can make a reasoned decision to refuse to refund fixed penalties and / or remove endorsements. Indeed, the entrenched position seems to have been adopted based upon monetary considerations and not on the interests of justice.
My correspondence with the Safer Roads Partnership has established that the decision to refuse to rescind fixed penalties and to remove endorsements was made on 15 October 2007. Despite two indications on behalf of the Safer Roads Partnership that my representations would meet with a response from the Constabulary's legal department no such meaningful response has been forthcoming. I have made it clear to the Safer Roads Partnership that I consider the decision to be capable of Judicial Review on application to the High Court. I have today received a letter from the legal department of the Hampshire Constabulary to the effect that they are not prepared to make any comments with regard to my correspondence or the points raised in the correspondence whilst there is a "threat" of judicial proceedings taking place. Accordingly, I would appear to have reached an impasse in my dealings with the Safer Roads Partnership.
The time for making an application to the High Court for a Judicial Review of the decision is running as of 15 October 2007. It follows from this that if any application is to be made for a Judicial Review such application will need to be lodged with the High Court prior to 15 January 2008. Although the High Court does have the power to extend the three month time limit there would have to be exceptional reason for so doing and to avoid the application being time barred it is vital to ensure that the application is lodged within that time scale.
Four of our clients have expressed a preparedness to fund the costs of the litigation but are not prepared to proceed without a much greater support in terms of contribution to costs from the motoring public affected by this situation. Julian Dobson of the litigation department of this office will be dealing with the litigation if we are instructed to take proceedings against the Safer Road Partnership. The estimate at this stage of the costs of Judicial Review proceedings is in the region of £20,000 to £25,000 plus VAT inclusive of Counsel's fees and disbursements. The initial costs of seeking Counsel's advice and initiating the proceedings are estimated in the region of £5,000 plus VAT. If the case is lost the successful party will no doubt seek an order for costs to be payable by the unsuccessful party. Accordingly, the costs for both sides are likely to be in the region of £40,000 to £50,000 plus VAT inclusive of Counsel's fees and disbursements. Any motorists participating in the litigation will be exposed to an application for an order for costs against him / her the liability for which will be joint and several and in event that the High Court finds in favour of the Safer Roads Partnership.
Public funding (legal aid) for Judicial Review proceedings is available from legal professionals and advice agencies which have contracts with the Legal Services Commission as part of the Community Legal Service.
Further information of the type(s) of help available and the criteria for receiving that help may be found in the Legal Services Manual volume III (The Funding Code). This may be found on the Legal Services Commission website at
www.legalservices.gov.uk . A list of contracted firms and advice agencies may be found on the Community Legal Services website at
www.justask.org.uk This firm does not conduct publicly funded work in this field and if this firm is to conduct the proceedings it will be necessary for arrangements to be put in place for the legal fees to be discharged on a private fee paying basis. Funding will have to be in place at the latest by noon on Friday 11 January 2008 otherwise it will be impossible to comply with the three month time limit for issuing the proceedings.
You may wish to check whether or not you have in place legal expenses insurance which could be utilised to fund the litigation.
In certain circumstances, this firm will offer a Conditional Fee Agreement (CFA) sometimes referred to as a "no win no fee" case. However:-
1. This would only be considered by us after we have received an advice by Counsel that there were very good prospects of success.
2. If we were to receive this advice, we would not in practical terms be in a position to complete the necessary paperwork / obtain the necessary consent until well after the time that proceedings need to have been issued and served.
3. A CFA will only cover our costs. It will not protect you from the risk of the case being lost and having to pay the other sides costs. Insurance can be taken out to cover that eventuality but the premium will (typically) be 40% of those likely costs.
4. If after we have issued and served proceedings, and decided that the case does not at this stage justify a CFA, it may be difficult to withdraw from the proceedings without paying at least some costs for the other side (although this should be fairly nominal if it is done early).
If you are interested in contributing to the funding of this litigation could you please contact Julian Dobson at this office as a matter of urgency. This will enable Mr Dobson to gauge the level of interest in becoming involved in civil litigation and will also enable him to budget as to how much each motorist ought to be expected to contribute to the fighting fund.
If you have any queries arising out of this letter please could you liaise direct with Mr Dobson. I wish to emphasise that this letter is directed only to those motorists concerned in regard to fixed penalties. The procedural position is very different in regard to those motorists who faced court proceedings and in that regard I am retaining conduct of any enquiries from motorists in respect of convictions arising out of court proceedings.
Yours sincerely
Barry Culshaw
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It would be one way of protecting their cashflow for the period.
