[2025] UKUT 021 (AAC)

As we have been unable to reach a unanimous decision, what follows in this sub-section is the reasoning of the majority of the panel (Judge Citron and Ms Pepperell) – which, under regulation 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008, is the decision of the Upper Tribunal. In the following sub-section, the views of the minority (Mr Roantree) are summarised.

The strand of the appellant’s case which the majority has found persuasive is that which points to unfairness in the procedure which culminated in the TC directing revocation because Mr Shilling was not a Schedule 3 compliant transport manager. There are two aspects to the procedure followed by the TC, following the appellant’s nomination of Mr Shilling in mid-November 2023, that appear to the majority of the panel unfair, both linked to the fact that the TC knew that Mr Shilling had a public inquiry on 11 December 2023 at which his good repute was to be considered:

The reason the first aspect above is, in the majority’s view, procedurally unfair is based on the following factual findings, which we make unanimously

In the view of the majority of the panel, the procedural unfairness in the context of the findings above is essentially that the TC’s decision was made on the basis of information that it had, but the appellant did not; and that, had the appellant had the information, it is reasonable to suppose that the outcome would have been different (because the appellant would have nominated a Schedule 3 compliant transport manager by the time limit, or by the time of the holding of a public inquiry).

In the majority’s view, the second aspect of procedural unfairness identified at paragraph 36 above – the TC’s setting the time limit three days before Mr Shilling’s public inquiry – stands in addition to the first. In other words, even if the appellant had, in fact, known, prior to the time limit, about Mr Shilling’s forthcoming public inquiry, it would still have been procedurally unfair to set the time limit at three days prior to that inquiry. This is because, even though, prior to the time limit, the appellant knew about Mr Shilling’s public inquiry, it did not know (and could not possibly have known) its outcome; and the outcome was determinative of the TC’s revocation direction. The procedural unfairness is that the time limit set made it inevitable that the TC would have information before it, when deciding whether to direct revocation, that the appellant did not have (and could not have had) prior to the time limit. To put it in positive terms: given the importance of the outcome of Mr Shilling’s public inquiry to the TC’s decision as to whether to direct revocation, procedural fairness required that the appellant be given chance to react to it (including by one of the steps at paragraph 37c above), prior to the making of any decision by the TC; this could have been achieved by setting a later time limit (to the extent allowed by law) and/or holding a public inquiry.

In that regard, we note the Upper Tribunal’s decision in Atbus Ltd [2019] UKUT 0032 (AAC) where, in a complex factual matrix that engaged the same statutory framework as this case, it was held (at [34]) that “the circumstances and matters of fairness dictated that a PI ought to have been held”.

As to whether the procedural unfairness we have identified engages our jurisdiction, we believe it does: we have jurisdiction to hear an appeal against the TC’s revocation direction; and, in the words of R (Iran) v Secretary of State for Home Dept [2005] EWCA Civ 982 at [9], “committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or fairness of the proceedings” is a legal error; indeed, it is well established in appeals of this kind that breaches of the rules of natural justice in the procedure adopted by the TC render the TC’s decision wrong and susceptible to set-aside. Here, the unfairness (in the view of the majority) in the procedure leading to the revocation direction (and which was material to the making of that direction) means that the direction itself was in error of law.

It follows from the above that the TC’s decision was, in the view of the majority (and therefore of the Upper Tribunal), legally flawed and so wrong, and falls to be set aside.