[2025] UKUT 071 (AAC)

It is clear from VST Building & Maintenance that the decision whether or not to grant an adjournment is a discretionary decision and the case itself is a helpful illustration of the factors that are likely to be relevant. The proper approach to adjournments is also discussed in Statutory Document No. 9 on Case Management at paragraphs 26 to 33. In paragraph 26 the following citation from the decision of the Divisional Court in R. v. Hereford Magistrates’ Court (ex parte Rowlands) [1998] Q.B. 110 appears, with minor amendments to make what is said applicable to the present jurisdiction:

“30.

The decision whether to grant an adjournment does not depend upon a mechanical exercise of comparing previous delays in [other] cases with the delay in the instant applications. It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that [traffic commissioners] should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences [to the parties]. Ultimately, they must decide what is fair in the light of all those circumstances.

31.

[The] court will only interfere with the exercise of … discretion … in cases where it is plain that a refusal will cause substantial unfairness to one of the parties.”

We find this a helpful summary of the test to be applied and clearly an approach which is consistent with Mr. Finnegan’s reliance on article 6 of the European Convention on Human Rights.

In order to apply the test, it is of course essential to have in mind what circumstances were, and what circumstances were not, known at the time of the TC’s decision on 22^nd May 2024. The call-up letter offers a useful summary of what was known at 14^th May 2024. In particular we note that Mr. Forshaw’s report dated 26^th June 2023 and the desk-based assessment dated 25^th March 2024 were both available. The April 2024 assessment was not, but it appears to have been sent to the OTC by email on 14^th May 2024 in response to the reminder letter of 2^nd May 2024. The TC did not have Mr. Forshaw’s report of 12^th June 2024 which revealed that two tyres had been below the legal limit at the inspection on 30^th May 2024.

We also note that the standard wording in the call-up letter is not the same as the standard wording in the call-up letter in VST Building & Maintenance. In that case the letter warned of the consequences of failure to attend and then later, having warned the recipient that the traffic commissioner was unlikely to grant an adjournment unless there were exceptional circumstances, gave guidance on making an application for an adjournment. The letter in the present case said, immediately after directing Mr. Dhillon to turn up at least 15 minutes ahead of the start time for the inquiry:

“The traffic commissioner is unlikely to allow a postponement, unless the circumstances are exceptional. If you do not attend, the case will be heard in your absence.”

The statement as to representation which we have quoted in paragraph 18 above appears immediately below that passage. There was no guidance on applying for an adjournment.

In our view it is entirely understandable that Mr. Dhillon should have taken the view that he was not “confident that [he] did not need” competent legal or professional representation. He asked the OTC to “forward PI date” within a week of the call-up letter and more than four weeks before the inquiry was due to be held. He based his request on the cogent reason that he wanted legal advice and gave details of the financial demands which made it very hard to afford such advice in “this time period”. What he did not do, and what any competent adviser would have advised him to do if he had one, was to explain when he hoped the Company would be able to pay for legal advice and for how long he was seeking an adjournment. (We were told at the hearing that he had in fact made inquiries about the cost before sending the email and had been given an estimate of £8,000.) It is clear from paragraph 8 of the decision that the open-ended nature of the request was one of the factors taken into account to his disadvantage.

VST Building & Maintenance identifies as potentially relevant factors the concerns the traffic commissioner may have about road safety, unfair competition and compliance with the regulatory regime which have led to the operator being called to the public inquiry. The email of 22^nd May 2024 which notified the Company of the TC’s decision did not identify any of those concerns or refer to the open-ended nature of the request. The Company was therefore unable to address those concerns or the objection based on the lack of a specified period for the adjournment.

To the extent that the letter did offer reasons, they seem to lie in the statements that the Company did not need to be legally represented and many operators attended without a representative. While those statements are true in the strict sense, the important question in considering fairness when an adjournment is requested for the purpose of obtaining representation is whether the particular individual or company called to an inquiry will be able adequately to present the case or whether representation is needed if that object is to be achieved. In the present case, that question has to be considered against the background that Mr. Dhillon had previously referred to his difficulties with English as a second language and that communications from him in the bundle, including the request for an adjournment, suggested that he might not be well equipped to represent himself and the Company. The material before us does not show that this question was considered.

We should make clear that we do not doubt that the experienced TC would have intended to take Mr. Dhillon to the relevant parts of the inquiry bundle, to ascertain whether he agreed with or disputed the facts and to invite his comments, as indeed the transcript shows that he did. This approach, however, put Mr. Dhillon in the position of reacting to what the TC said. A representative is potentially able to marshal proactive arguments on behalf of the client, although the ability to do so may be limited by the facts of the particular case.

This point is also illustrated by VST Building & Maintenance in paragraph 9, where the point is made that the appellant in that case would have found it difficult, if not impossible, to challenge the prohibitions and the lack of an operating centre, but the production of maintenance records might have avoided a finding that a statement of expectation had not been fulfilled. In the present case, a competent representative could not have challenged the failures to notify matters to the OTC or the existence of prohibitions and fixed penalties, but could have addressed the TC on the importance of the maintenance improvements which had been made, particularly in the light of the major priorities identified in the April 2024 audit, on the plans for future improvements and, crucially, on the appropriate form of regulatory action.

The second reason given in paragraph 8 of the decision for the refusal of an adjournment was simply “the background of the case”. This does not explain which of the three matters identified in VST Building & Maintenance the TC had in mind, or indeed whether he had them all in mind. It may be that the reference is to the matters in paragraphs 1 to 5 of the decision setting out the background against which the Company was called to the public inquiry. If so, while we can well see that the TC was of the opinion that it was time to bring this rather protracted matter to a head, we cannot see that there was a degree of urgency, in the light of the matters known to him on 22^nd May 2024, sufficient to require delay to be “minimised” at the expense of giving Mr. Dhillon a reasonable opportunity to obtain legal advice. It does not appear that there was then any evidence of deterioration from the point of view of safety and indeed there was some, if limited, evidence of improvement. There is nothing to suggest a particular concern about unfair competition. We do not think Mr. Dhillon could fairly be said to be getting away with anything if the enforcement action continued, but at a slightly later date than had been intended.

We agree that, as stated in paragraph 16 of VST Buildings & Maintenance, the TC was under no obligation to put forward a counter-proposal suggesting an adjournment of a limited period, but clearly he could have done so. Alternatively he could have granted an adjournment for a short period. He did not take either of those courses but instead dealt speedily and very briefly with the request. We do not go as far as Mr. Finnegan in saying that the TC appeared to have a policy against adjournments, but, with some hesitation, we have concluded that it does not appear that the TC followed the guidance in the Hereford Magistrates case. In particular, it does not appear that the TC fully examined the consequences for the Company and Mr. Dhillon, given Mr. Dhillon’s particular disadvantages in representing the Company at an inquiry conducted in English.

In all the circumstances, we conclude that the material before the TC was sufficient to establish that the refusal of any adjournment would cause substantial unfairness to the Company and Mr. Dhillon.

Before we turn to the consequences of that conclusion, we consider the other grounds of appeal in so far as they relate to revocation. We are not persuaded that, on the material before him, the TC was plainly wrong in deciding to revoke the existing licences. The overall picture is of an operator which has been subject to a number of investigations and audits over a period of years without achieving the necessary standards in a number of areas. The February 2024 desk-based assessment suggests that in some respects matters had deteriorated. We recognise that the priorities in the April audit appear to have shifted somewhat from maintenance matters, but we find it difficult to detect the “profound improvement” to which Mr. Finnegan refers in his skeleton argument.

Specifically:

We accept that there is more to be said on the question of brake testing than appears in paragraph 13 of the decision, but we note that Mr. Forshaw’s report drew attention in particular the failure by the maintenance provider to carry out temperature checks when using decelerometer testing. The safety concerns which arise from problems with brake testing are not removed if the operator ensures testing is carried out but it is done in a manner which does not meet the requirements.

We agree that the TC seems to have been under a misapprehension about whether the Company had previously been called to a public inquiry. The weight of the fact that it had not is, however, much diminished by the fact that it had nevertheless received three formal warnings and undertakings had been required.

We also accept that the TC did not specifically inquire about the consequences of revocation. The Leonida case to which Mr. Finnegan refers is a case in which the traffic commissioner found that the operator’s repute was severely tarnished and suspended the licence for 21 days. He also directed that a separate licence granted to a company should not come into effect until after the suspension. Mr. Leonida put in a witness statement giving limited evidence that the operator, a partnership, would fail if there was a loss of vehicles on its licence and the company’s new licence was not granted at the same time. At the inquiry he said that if the licence was suspended the business would close. The traffic commissioner’s decision ordering the suspension and the delay before the new licence took effect did not deal specifically with the evidence that the business would fail. The Upper Tribunal said at paragraph 13:

“When preparing for the Public Inquiry it should have been clear to the Leonida brothers and it must have been clear to Mr. Brown [(their legal adviser)] that this was a case which could very easily go either way. It appears to us that their main aim was to avoid a finding of loss of good repute, which would have led, of course, to mandatory revocation. Given the fact that the partnership was ‘staring revocation in the face’ it ought to have been clear to the Leonida brothers and it must have been clear to Mr. Brown that some form of regulatory action was inevitable. The sensible course, in that situation, would have been for the operator and its adviser to work out, in advance, the least damaging form of regulatory action and then to set out, in much greater detail than was done in this case, the consequences of each form of regulatory action and why the business might be able to survive in one case but could not in others. Unfortunately that does not appear to have been done in the present case. Instead it appears to us that a decision was taken to gamble on avoiding any form of regulatory action.”

It is clearly the case that evidence of the consequences of various forms of regulatory action may be relevant to a commissioner’s decision as to the action to be taken. It follows that where an operator is unrepresented it would often be good practice for the commissioner to ask questions with a view to obtaining such evidence. In the present case, however, it is clear from paragraph 18 that, having answered the Priority Freight question adversely to the Company, the TC found that fitness to hold a restricted licence was no longer shown and proceeded on the footing that it was necessary to put the Company out of business as a consequence. That is to say that the TC took the view that putting the Company out of business was both an expected and an appropriate consequence because he could not trust the Company to maintain sufficient compliance in future. It is difficult to see how evidence of the consequences would have assisted the Company and Mr. Dhillon without effective submissions as to the Priority Freight question.

The above reasons, however, derive from a consideration of the TC’s decision on the basis of the material before him. If the Company had been legally represented, it is at least possible that that material would have included:

In relation to the reference to further evidence in paragraphs 92.6 and 92.7, we should make clear that we have not looked at the additional material for the purpose of forming our view on whether the TC’s decision was plainly wrong. Further evidence in the Upper Tribunal is subject to the constraints imposed by Ladd v. Marshall [1954] 1 W.L.R. 1489, one of which is that the party seeking to adduce additional evidence on appeal must show that the evidence could not have been obtained with reasonable diligence for use at the hearing below. The further evidence we have mentioned clearly