[2024] UKUT 398 (AAC)

On this question, it seems clear to us that the TC did rely, materially, on the contents of Mr Saleh’s letters, in reaching conclusions as to competency, honesty, and the “deliberate” nature of Excell Logistics Ltd’s infringement of its licence terms. This can be clearly seen at paragraphs 30-32 of the TC’s written decision (quoted at [5f] above). Mr Saleh’s was not the only evidence as to these matters before the TC, by any means - but it was, at a minimum, importantly corroborative of other evidence; it is by no means clear that the TC would have reached the same conclusions about competence, honesty, “deliberacy”, and repute, absent the contents of Mr Saleh’s letters. The unfairness (in not fairly disclosing Mr Saleh’s letters to OTC, to Miss Kufandirori) did therefore make a difference to the TC’s decision that, under s27, he was required to direct that Excell Logistics Ltd’s licence be revoked.

We note, however, that the TC’s decision also invokes s26(1)(f) as an additional reason for revoking the licence; that provision gives the TC a power to revoke a licence where any undertaking recorded in the licence has not been fulfilled; in this case, it was the undertaking not to use more than the authorised number of vehicles. We note that s26 is a power (or a discretion) to revoke in certain circumstances, in contrast to s27, which imposes a requirement to revoke in certain circumstances. In our view, even though the contents of Mr Saleh’s letters may not have made a difference to the TC’s deciding that Excell Logistics Ltd had breached the undertaking about the number of vehicles it used, they did make a difference to the TC deciding to exercise his discretion under s26 to revoke the licence. This is because, in exercising a discretion, a decision-maker has to take into account all relevant considerations: and there can be no doubt that the considerations about Miss Kufandirori’s competence and honesty, which in turn, as we have already found, materially relied on the contents of Mr Saleh’s letters, were relevant considerations. Thus, in a slightly more indirect way, the content of Mr Saleh’s letters made a difference to the TC’s decision under s26(1)(f), as well as to his decision under s27.