Case No. UKUT-00320-(AAC)

28.An appeal was lodged within time. The brief written grounds were as follows: “1.The Traffic Commissioner made erroneous findings of facts such that his decisions are thereby tainted with errors. 2.The Traffic Commissioner took into consideration matters which were not relevant to his decision-making exercise.3.The decisions of the Traffic Commissioner unfairly damaged the reputation of the appellants, the group of companies of which the appellants are a part, and the individuals within that group”. 29.At that stage the appeal was directed not only to the TC’s decision to refuse a licence to the appellant company but also with respect to his decision to issue a formal warning to REL Storage and Logistics Limited. Thus, initially, there were two appellants albeit that they had the same representation.30.On 6 March 2022 Upper Tribunal Judge Hemingway observed, in case management directions, that it did not appear that REL Storage and Logistics Limited had a right of appeal against the decision to issue it with a formal warning. Accordingly, Notice of intention, subject to written representations, to strike out the appeal of that company for want of jurisdiction, was sent. That company did not take issue with the preliminary view taken by the Upper Tribunal to the effect that there was no right of appeal and so, on 30 March 2022, the appeal against the warning was struck out. That left only the appeal of the appellant company. There followed an application made on behalf of REL Investment Management Limited, Mr Scott, and Mr Lewis, for them all to be joined as parties to the proceedings. In directions of 1 June 2022, the possibility of them providing evidence as witnesses rather than seeking joinder was raised. However, it was pointed out that to be admitted any such fresh evidence would have to meet the criteria set out in Ladd v Marshall [1954] EWCA Civ 1. Clarification as to the intentions of the appellant and other parties or potential parties was sought from the appellant company’s legal representatives. That resulted in its being indicated that there was no longer a proposal to join additional parties but that, instead, an application for admission of fresh evidence was to be made. That application was in respect of information contained in draft witness statements provided by Mr Scott and Mr Lewis and documentation relating to their business activities and relating to companies they had had involvement with. The point of the application was to seek to refute the adverse findings and the adverse comments made by the TC concerning Mr Scott and Mr Lewis.31.Following a hearing of 4 October 2022, which took place before a panel identically constituted to that which has heard and determined this appeal, it was decided to admit the fresh evidence. We considered the Ladd v Marshall criteria, having first reminded ourselves of the valuable guidance as to how such is to be applied in the context of this jurisdiction as contained in T/2015/36 W. Martin Oliver Partnership with which we respectfully agree.32.In deciding to admit the fresh evidence we reminded ourselves of the absolute prohibition upon us from taking into consideration any circumstances which did not exist at the time of the determination which was the subject of the appeal. However, the application was not in respect of evidence as to new circumstances. As to the Ladd v Marshall criteria, we hesitated over whether it could properly be said that the fresh evidence could not have been obtained, with reasonable diligence, for use at the PI. As to that, we considered that the call up letter had, if obliquely, raised some issues regarding the fitness of the company and the question of control but accepted, on balance, the concerns which had subsequently and quite obviously played a role in the TC’s adverse conclusion with respect to the appellant company’s repute (and the general repute of Mr Lewis and Mr Scott) had not been stated with sufficient specificity to adequately signal a need for the evidence now offered to us to be provided then. We hesitated over whether the evidence, had it been given at the PI, would probably have an important influence on the result of the case. But, given the way in which the TC had reasoned out his decision, we thought, having reminded ourselves that it would not be necessary to show that the fresh evidence if given at the earlier stage would have been decisive, that that part of the test was narrowly met. So, the fresh evidence was admitted. We shall say more about its significance, in the context of this appeal, below.