[2024] UKUT 420 (AAC)

This tribunal can only interfere with a decision of a traffic commissioner on appeal if satisfied that the decision was “wrong”, as explained by the Court of Appeal in Bradley Fold Travel Limited v Secretary of State for Transport [2010] EWCA Civ 695. The court adopted what was said by Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:

“…. The first instance decision is taken to be correct until the contrary is shown.… An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one.… The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.”

Mr Jenkins submitted to us that he considered it was unfair that he had lost his operator’s licence in the circumstances we have described. He said that he felt hard done by because, from prison, he was unable to communicate freely with the outside world, and he was unaware of the correspondence from the Commissioner that led to the revocation of the licence. Whilst he accepts that the Commissioner had no financial information about the Appellant company that may have persuaded her that it had sufficient financial resources to ensure the maintenance of the relevant vehicles in a fit and serviceable condition, he said that he would now be able to provide such information if he were asked for it. He emphasised that, to date, no one had asked him for such information.

However, we do not consider that any of this (in which we include everything that Mr Jenkins has put before us) suggests that the Commissioner’s decision to revoke the licence was arguably wrong.

Holding an operator’s licence brings with it obligations, including the obligation to make arrangements to ensure that any communications from the Commissioner are dealt with promptly. Whilst we have some sympathy with Mr Jenkins’s difficulties in communicating from prison, as the sole director and person with control of that part of his business which included transport operations, he ought to have made arrangements for the management and operation of that business whilst he was in prison. Whilst he told us that he did not expect an immediate custodial sentence, that was a clear and obvious risk; and, as the sole director and manager of the licence-holder company, he ought to have taken steps to ensure that the relevant operations were managed and operated in his absence. He was told, in the letter of 12 October 2023, that he needed to take urgent action in respect of showing that the company had the required financial resources, otherwise the licence would be revoked. He did not take that action, and it is not to the point that he did not personally see the letter because he was in prison. The letter was sent to the correct address, i.e. the address which Mr Jenkins had previously given the Commissioner as his postal address. It was up to Mr Jenkins to ensure that, whilst he was in prison, communications sent to that address (and those sent to his email address also given to the Commissioner) were monitored and, if necessary, acted upon in his absence. Although it would now in any event be too late, we also note that, even now, the relevant financial information has not been provided, either to us or, it seems, to Companies House where the application to strike out the company appears still to be pending.