Elaine Hanley v The Road Safety Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 22 November 2021
• Neutral Citation: [2021] IEHC 730
• Docket Number: RECORD NO. 2020/1023JR
• Year: 2021
• Court: High Court

Between

Elaine Hanley

Applicant

and

The Road Safety Authority

Respondent

[2021] IEHC 730

RECORD NO. 2020/1023JR

THE HIGH COURT

JUDGMENT of Ms. Justice Niamh Hyland delivered on 22 November 2021

Introduction

1 This case turns on a very net point – whether a fine and penalty points imposed following the acceptance by the applicant of liability under two fixed penalty notices should be quashed, where her acceptance was premised upon an email from the respondent that the applicant says wrongly identified the number of penalty points on her licence. The applicant relies on the doctrine of legitimate expectations to assert that the respondent is estopped from withdrawing her licence in those circumstances and seeks an order of certiorari quashing the disqualification imposed by the respondent and communicated on 23 November 2020, disqualifying the applicant from driving for a period of six months. That decision was stayed when leave for judicial review was sought and obtained on 21 December 2020.

Facts

2 The applicant is a probation officer and on 13 November 2020 was a novice driver. In early 2019 she received three penalty points for driving a vehicle while holding a mobile phone. She was sent a notification of endorsement of penalty points on 14 January 2019 which clearly stated that those points would remain on her record for a period of three years from 11 February 2019. Then, on 27 October 2020 she received a fixed penalty notice from the respondent for the offence of holding a mobile phone while driving. On 2 November 2020 she received a further fixed penalty notice from the respondent in respect of an offence of non-display of N plates while driving a vehicle.

3 On 2 November 2020 she emailed the National Drivers Licence Service (“the NDLS”), the body that maintains the record in respect of penalty points, in the following terms

“Hi, I was stopped by garda this am and not sure if I have received penalty points, I received points last week and I'm worried I might have the 12 points. I know I will receive it in post and just very anxious to know

Can this be confirmed if possible

Thanks”

4 On 4 November 2020, she emailed the NDLS again asking how many penalty points she had. On 6 November 2020 she was asked to confirm her name and date of birth and she did so on the same day.

5 On 13 November 2020 she received an email in the following terms from the NDLS;

“Dear Elaine

Driver Number 131032703

Thank you for your email.

You currently have 3 penalty points on this record.

3 Penalty Points began 11-Feb-2019 and are due to expire 10-Feb-2020

If you require information regarding Penalty Points on an official document, you will need to call a member of our customer service team on the telephone number below. You will be required to have your PPSN or driver number to hand at the time of the call

If you have any queries in relation to this communication, please contact our Customer Service Team on +353 (0) 761 087 880 and quote your case reference number, or visit the National Driver Licence Service website www. ndls.ie

Yours sincerely…”

6 On an unidentified date the applicant paid the amounts due pursuant to the fixed penalty notices.

7 By letter of 23 November 2020, the applicant received a notification of endorsement of penalty points in respect of the alleged offence of 27 October 2020 bringing her total penalty points to six. On 23 November 2020 she received a letter noting that two further penalty points had been endorsed in respect of the alleged offence on 2 November 2020, and that the total penalty points on her record was eight with the result that she had reached or exceeded the maximum number of penalty points allowed and as a result she was disqualified from driving for a period of sixth months commencing on 21 December 2020.

8 On 30 November 2020 a letter was sent by Sarah Ryan Solicitors on behalf of the applicant where reference was made to the email of 13 November 2020 and it was stated as follows;

“My client paid the 2 recent fixed charge penalty notices in the belief that this would result in her licensing record having 5 penalty points and thus within the limit to prevent a disqualification. My client was shocked to receive the letter informing her of the disqualification. The disqualification has the potential to lead to my client not being able to maintain her employment. My client would not have paid the fixed charge penalty notices had she known that the payment would have led to her disqualification. In this regard my client relied on the information in the letter of the 13th of November last”.

9 On 18 December 2020 a response was provided to the applicant's solicitor from the respondent setting out the penalty point record details for the applicant and stating as follows;

“The email received by your client from the National Driver Licensing Service 13 November 2020 contained a clerical error of the end date for the penalty points and for this I apologise. However, Ms Handley received formal notification on 14 January 2019 from the Road Safety Authority (RSA) giving a start date of 11 February 2019 for this set of penalty points. In this notification letter from the RSA to your client it stated “these points will remain on the entry for a period of 3 years from 11 February 2019”.

When Ms Hanley paid the further 2 fixed charge notices your client accepted the offences and this resulted in her current pending penalty.”

Relevance of 5 December 2020

10 The fixed penalty notices received by the applicant on 27 October and 2 November 2020 both noted that no prosecution will issue during the period of fifty six days from the date of the notice of the fixed charge if it is paid within that time period. (If paid after twenty eight days but before the expiry of fifty six days the amount payable is higher). If there is a prosecution, and a person is convicted, they are liable to obtain both a higher fine and a higher number of penalty points. The applicant could therefore have paid the fixed charge after 5 December 2020 without exposing herself to prosecution since that was still less than 56 days from the date of the fixed penalty notices.

11 The significance of 5 December 2020 in this case is that, on that date, the applicant automatically moved from novice to full driver. That meant she could have accumulated less than 12 penalty points without attracting a disqualification, as opposed to the accumulation of less than 8 points for a novice driver. In short, had she paid the fixed penalty notices after 5 December 2020, she would still have accumulated eight points but that would not have had the effect of disqualifying her for six months as she would have benefited from the less onerous regime for a full driver.

Proceedings

12 On 21 December 2020 leave was sought and obtained grounded on an affidavit of Ms. Hanley sworn 17 December 2020. At paragraph six of the affidavit she exhibits the email of 13 November 2020 and refers to, but does not exhibit, the email of 4 November. At paragraph 7, she avers as follows:

“7. As a result of same and in direct reliance of the correspondence aforesaid, I proceeded to immediately and lawfully forward payment in respect of both Fixed Penalty Notices, received on the 27th October and the 2nd November.

…

11. I say that it was on the basis of the information provided to me by the National Driver License Service that I did not seek to challenge either Fixed Penalty Notice, nor did I seek formal legal advice.

12. As a result of the actions of the Respondent herein, my employment is now at risk.”

13 At the leave stage, a stay on the disqualification notice was granted pending the determination of the within proceedings.

14 A statement of opposition was provided on 12 April 2021 and an affidavit of Miriam Scott of the respondent was sworn on the same day. An affidavit of Ms. McAloon of the respondent was also sworn on 12 April 2021 verifying various facts and correspondence.

Arguments of the parties

The Applicant

15 The essence of the applicant's case is that there is a breach of legitimate expectations in circumstances where she relied upon the respondent's email of Friday, 13 November 2020 summarising the position as to her penalty points, and that reliance was to her detriment. Her case is that, based on that email, she decided to pay the penalty amount, thus incurring penalty points. She understood that she would continue to be permitted to drive as she would only have five penalty points on her licence i.e. the newly accrued points, after payment of the penalty. It is argued that an implicit representation was made to her that she would not be disqualified if she paid the fine and accrued the points as she would remain below the disqualification threshold of eight points.

16 In the circumstances she argues that the respondent cannot resile from that position (although she accepts that she did have eight penalty points on her licence at the date upon which the decision was made) and is estopped from withdrawing her licence despite the accrual of eight penalty points. I should note that given the acceptance of the existence of eight penalty points by counsel for the applicant, it is clear that ground E(2) of the statement of grounds is not being pursued, which alleges that the respondent erred in law insofar as it imposed a disqualification pursuant to s.3 of the Road Traffic Act 2002 (“the RTA 2002”) in circumstances where the applicant had less than seven penalty points on her licence.

17 The applicant has also stressed that she took the decision to accept the fixed penalty notice in good faith on the basis that she had no penalty points remaining and that this is demonstrated by the fact that, had she understood the true situation, she had every incentive simply to wait a number of weeks before paying the notice (an option that was open to her)...