[2025] UKUT 071 (AAC)

In support of this ground of appeal Mr. Finnegan relies on VST Building & Maintenance Limited [2014] UKUT 0101 (AAC). The facts of that case were that the appellant was notified by a letter dated 23^rd July 2013 that the traffic commissioner intended to hold a public inquiry on 11^th September 2013. On 29^th August 2013 the appellant’s representative wrote to the OTC stating that he had been instructed to apply for an adjournment and explaining that his client had had a serious motorcycle accident in Albania the previous year, had been told to return to the hospital in Albania where he had been treated and was due to leave the following day. The treatment was said to be vital to the appellant’s recovery and the appellant was likely to be out of the country until mid-December 2013. It was suggested that a new date for the public inquiry should be set from February 2014 onwards and it was further stated that the appellant was the only person who could deal with the provision of requested documents and information. After various exchanges between the appellant’s representative and the traffic commissioner, the adjournment was refused on the grounds, in summary, that (i) in the light of the serious instances of non-compliance, the traffic commissioner could not allow the operator to continue to operate seven vehicles for a further five or six months before a public inquiry was held; (ii) there was the question who was in control of the business while the appellant was away and whether any such person was sufficiently competent to run a safe and compliant operation; and (iii) the traffic commissioner had offered to suspend the licence until the inquiry could be held, but the representative did not have instructions to agree.

The main focus of the appeal in that case was the traffic commissioner’s refusal of an adjournment. The Upper Tribunal accepted that a decision whether or not to adjourn involves a balancing exercise, bearing in mind that the material which justifies calling an operator to a public inquiry will almost always give rise to concern about the safety of the public generally, unfair competition with other operators and undermining enforcement of the regulatory regime by appearing to allow an operator to “get away with it” for a long period. Paragraph 9 continues:

“The weight to be given to [those concerns] will vary according to the circumstances of the individual case and the ease or difficulty which the operator is likely to face in challenging the material.”

Operators are advised in paragraph 10 to apply immediately it becomes apparent that there is a problem with the date of the inquiry. The application in question was, as pointed out in paragraph 12, made late, unsupported by any independent evidence and without any explanation for the delay. It was “a classic example of how not to apply for an adjournment” (paragraph 13) and a request for a lengthy adjournment (paragraphs 14 and 15, in substance). The traffic commissioner was under no obligation to put forward a counter-offer of an adjournment for a short period. Ultimately, having looked at the position carefully, the Upper Tribunal was satisfied that the traffic commissioner conducted an appropriate balancing exercise.

In the light of that decision, Mr. Finnegan submits, first, that the TC ought to have inquired what steps Mr. Dhillon had taken, what steps he intended to take and how long an adjournment was likely. In his oral submissions he drew our attention to what he described as the unsophisticated nature of the application and the inquisitorial nature of the jurisdiction and argued that no balancing exercise had been carried out.

In his skeleton argument Mr. Finnegan also draws attention to article 6 of the European Convention on Human Rights, incorporated into domestic law by the Human Rights Act 1998. Article 6 provides, so far as material, that “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time”. We understand that Mr. Finnegan’s concern is with the fairness of the hearing in the absence of legal representation, although the right to legal representation applies only to those charged with a criminal offence. We think ultimately this point comes back to the need for a balancing exercise before an adjournment is refused.

In this connection Mr. Finnegan draws our attention specifically to the brevity of the TC’s reasoning on the adjournment point, which appears in paragraph 8 of the decision, and the complicated nature of the case the Company through Mr. Dhillon had to deal with. He submits that the email from the OTC notifying the Company of the TC’s decision sent on 22^nd May 2024 (p.323) suggests that a request for an adjournment to obtain legal representation was of a nature not accepted as a basis for adjournment, or that there was a policy against adjournment in such circumstances, and that the only factor the TC considered was his belief that the case was one of urgency.

Mr. Finnegan further submits that legal representation would not necessarily be futile and identifies in his submissions on other grounds of appeal respects in which representation might have been of assistance.