[2024] UKUT 267 (AAC)

In advance of the public inquiry hearing the Office of the Transport Commissioner (OTC) sent to Mr Mboya copies of all the documentation that would be placed before the Traffic Commissioner. The Commissioner recorded, at paragraph 11 of his reasons, that “Mr Mboya told me that he had more records and he thought that the Vehicle Examiner would have sent them through to me”. We have read the transcript of the public inquiry before the Commissioner. As recorded at pages 2 and 3 of the transcript, Mr Mboya informed the Commissioner that he did have more information about maintenance of his vehicles and a recent SIPCAT report. The Commissioner pointed out that any further documentary evidence should have been sent in by Mr Mboya “two weeks ago”.

When informing Mr Mboya that further documentary evidence should have been supplied two weeks before the day of the inquiry hearing, the Commissioner was referring to the instructions previously given to Mr Mboya by the OTC. The public inquiry ‘call-up’ letter sent to Mr Mboya on 15 September 2023 (p.29 of the OTC bundle) informed Mr Mboya that he should start to collect his own evidence and that “before 18^th October 2023, you must submit any written evidence or representations that you want the Commissioner to see”. Mr Mboya was sent a copy of the documents put before the Commissioner so that it should have been clear to him if a relevant document was missing. On 11 October 2023, the OTC wrote to Mr Mboya to inform him that the Commissioner had granted his postponement request, and that the public inquiry would now be held on 16 January 2024 (p.189 of the OTC bundle). This letter informed Mr Mboya that any further documentation on which he intended to rely should be sent to the OTC “14 days prior to the rescheduled date of 16^th January 2024”.

We are satisfied that Mr Mboya was given a fair opportunity to supply the Traffic Commissioner with his own documentary evidence. If he thought that the regulatory records provided to the Commissioner were incomplete, he should have addressed this well before the date of the public inquiry on 16 January 2024. The Commissioner did not act unfairly by proceeding to decide matters by reference to the documentary evidence before him. In any event, we are satisfied that, even if Mr Mboya had supplied documentary evidence that painted a more positive picture of recent maintenance activity, it would not have made a difference to the outcome. Mr Mboya accepted that his record-keeping fell below what was required, did not dispute that he had failed to abide by the undertakings given at the previous public inquiry nor that various penalty notices had been issued to him personally. And more recent maintenance evidence could not have diluted the severity of what seems to us to have been the key adverse findings made against the operator and Mr Mboya namely falsification of roller brake test print outs. We reject the second ground of appeal.