[2024] UKUT 22 (AAC)

At the commencement of the appeal hearing, we heard an application made on behalf of the Secretary of State for Transport to be added as a respondent to the appeals by the first three appellants only. The Secretary of State had no submissions to make in respect of the 4^th appellant.

Following the DTC’s decision, the appellants had intimated their intention to appeal to the OTC and sought a stay of the decision. This was duly granted. The DTC advised the case worker that the decision and the appellants’ intention to appeal should be intimated to the Senior Traffic Commissioner. Notices of Appeal were timeously lodged with the Upper Tribunal and the case was set down for hearing on 12 December 2023.

On 6 December, correspondence was received in the office of the Administrative Appeals Chamber of the Upper Tribunal from the Office of the Advocate General for Scotland stating that an application was being prepared on behalf of the Secretary of State for Transport to be added, albeit late, as a respondent to the appeal. The application, together with a skeleton argument on the merits of the appeals, was received on Friday 8 December.

Paragraph 5 of the Schedule to the Tribunal Procedure (Upper Tribunal) Rules 2008, provides that the appropriate national authority, and any other person to whom the Upper Tribunal has sent a copy of the notice of appeal may apply for a direction under rule 9(2) to be added as a respondent. The application under paragraph 5 must be sent or delivered to the Upper Tribunal so that it is received within 14 days of the date that the Upper Tribunal sent a copy of the notice of appeal to the person making the application (Footnote: ⁸). Paragraph 7 provides that if a person makes an application in accordance with paragraph 5 and 6, then the Upper Tribunal must give a direction under rule 9(2) adding that person as a respondent.

Mr Tosh informed the tribunal that a copy of the notice of appeal had been sent to the Secretary of State for Transport, the “appropriate national authority” in the present case, on 13 June 2023. No application under rule 9(2) had been made within the period provided in paragraph 6. He therefore sought an extension of time to lodge the application under rule 5(3) or, if that was inapt, then waiver under rule 7.

Mr Tosh explained that the Secretary of State for Transport did not ordinarily participate in appeals against decisions of traffic commissioners, unless some issue of principle or of other significance (such as an allegation of bias) was raised. In that event, there was a protocol in place between the offices of the Secretary of State for Transport, and the Office of the Traffic Commissioner, that the latter will notify the former of the significance of the appeal in order that the applicant may apply to be a party to the appeal. In this case, that protocol had not been followed. He explained that there had been recent changes in staff in the OTC and pressure on resources which appear to have caused or contributed to the failure to follow the normal protocol. As a result, the significance of the issues raised by the present appeal were not appreciated until recently.

Regarding the addition of the Secretary of State for Transport as a respondent, Mr Tosh submitted that the tribunal would have had no discretion and would have been required to give a direction under rule 9(2) adding the Secretary of State for Transport as a respondent had the application been made timeously. The appeal makes allegations of bias and unfairness. If sustained, the decision on the appeal might have a wider impact on the conduct of proceedings before TCs generally. In those circumstances, it was appropriate that a contradictor was available to ensure that the issues were fully argued and ventilated before being determined. That would be consistent with the overriding objective in rule 2(1) to enable the tribunal to deal with cases fairly and justly. He submitted that it should be a rare case where the door of the tribunal should be closed to a party with title and interest. Mr. Tosh referred to the case of Melvin Murray t/a Melvin Murray Transport (Footnote: ⁹) in which the Upper Tribunal had exercised its discretion under rule 7(2)(a) to waive the requirement to comply with the time-limit under paragraph 6. Finally, Mr Tosh stated that he did not seek an adjournment if the application were granted.

The application was opposed by Mr Adams. He submitted that the tribunal should only exercise its discretion under rule 7(2)(a) if it was satisfied that it was just in the circumstances to do so. Mr Adams submitted that the DTC had put the caseworker on notice that this case should be intimated to the STC on 17 May 2023, that was a week before the notices of appeal were lodged. Thereafter nothing was done for 6 months. No good reason had been given for the failure. Even in the absence of a contradictor, the appellants still had to persuade the tribunal of the merits of the appeal. To some extent, the tribunal was the contradictor. Therefore, the lack of a contradictor was not a persuasive factor. The late submission of the application and skeleton argument for the Secretary of State for Transport had required additional work to be done by the 1^st to 3^rd appellants’ legal team in the day prior to the hearing. That had caused additional expense.

Mr Adams submitted that the courts often give considerable leeway to public bodies. However, there is authority that public and private litigants should be treated equally. SN v Secretary of State for the Home Department (Footnote: ¹⁰) which considered the principles to be applied when an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order. The case concerned an application for strike out under rule 8 of the 2008 rules following a number of egregious failures by the appellant’s solicitors. Reference was made in that case to the principles set out in the cases of R (Hysaj) v Secretary of State for the Home Department (Footnote: ¹¹) and Mitchell v News Group Newspapers (Footnote: ¹²). The court in R (Hysaj) said all the circumstances of the case should be considered as listed in the Civil Procedure Rules 1998 (“CPR”) rule 3.9 and have regard to the Mitchell principles. The Mitchell principles state:-

The court in SN also referred to Denton v White [2014] EWCA Civ 906, which concerned an application to extend time in the wake of a failure to file a notice of appeal within the time prescribed by CPR 52.4(2). In its judgment the Court stated, at [24]:

Mr Adams referred to Brogan v O’Rourke Ltd (Footnote: ¹³) for an example of the court refusing to exercise the dispensing power in rule 2.1 of the Rules of the Court of Session. In that case, a pursuer’s solicitor had failed to have a summons in a personal injuries action called within three months and a day after the date of signeting. Rule 43.3(23) provides that where the summons is not called within that period then “the instance shall fall”. The court commented that the rules of court were “… designed to serve the interests of justice, by ensuring, inter alia, that cases are dealt with expeditiously, without undue expense, and without undue demands on the resources of the court. The interests of justice are not well served by an approach which too readily excuses failure to comply with those rules.” (Footnote: ¹⁴)