Case No. UKUT-00148-(AAC)

? If the evidence demonstrates that it is unlikely then that will, of course, tend to support a conclusion that the operator ought to be put out of business. If the evidence demonstrates that the operator is very likely to be compliant in the future then that conclusion may indicate that it is not a case where the operator ought to be put out of business. We recognise, of course, that promises are easily made, perhaps all the more so in response to the pressures of a Public Inquiry. What matters is whether those promises will be kept. In the present case the Appellant company was entitled to rely on that old saying that ‘actions speak louder than words’.” [Emphasis Added]The Upper Tribunal’s jurisdiction18.Paragraph 17 of Schedule 4 to the Transport Act 1985 provides: (1) The Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport”. (2) On an appeal from any determination of a traffic commissioner other than an excluded determination, the Upper Tribunal is to have power-(a)to make such order as it thinks fit; or(b) to remit the matter to—(i) the traffic commissioner who made the decision against which the appeal is brought; or(ii) as the case may be, such other traffic commissioner as may be required by the senior traffic commissioner to deal with the appeal,for rehearing and determination by the commissioner in any case where the tribunal considers it appropriate;and any such order is binding on the commissioner.(3) The Upper Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal.19.The Upper Tribunal’s jurisdiction was examined by the Court of Appeal in Bradley Fold Travel Ltd and Anor v Secretary of State for Transport [2010] EWCA Civ 695. The court applied Subesh and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, where Woolf LJ held: “44….The first instance decision is taken to be correct until the contrary is shown…