[2025] UKUT 071 (AAC)

Under the 1995 Act as currently in force:

“26.(1) Subject to the following provisions of this section and the provisions of section 29, a traffic commissioner may direct that an operator’s licence be revoked, suspended or curtailed … on any of the following grounds -

(a)

in the case of a heavy goods vehicle licence, that a place in the traffic area to which the licence relates has, at a time when it was not specified in the licence as an operating centre of the licence-holder, been used as an operating centre for heavy goods vehicles authorised to be used under the licence;

(b)

…

(c)

that during the five years ending with the date on which the direction is given there has been –

(i)

a conviction of the licence-holder of an offence such as is mentioned in any of sub-paragraphs (a) to (i) of paragraph 5 of Schedule 2

(ii)

a conviction of a servant or agent of the licence-holder of any such offence, other than an offence such as is mentioned in sub-paragraph (c), (e) or (h) of that paragraph; or

(iii)

a prohibition under section 69 or 70 of the Road Traffic Act 1988 (power to prohibit driving of unfit or overloaded vehicles) of the driving of a vehicle of which the licence-holder was the owner when the prohibition was imposed;

(ca) that during those five years a fixed penalty notice … has been issued … to a servant or agent of the licence-holder in respect of an offence within [paragraph (c)(ii) above]

(d)

…

(e)

that the licence-holder made, or procured to be made, for the purposes of –

(i)

his application for the licence,

(ii)

an application for the variation of the licence, or

(iii)

…

a statement of fact that, whether to his knowledge or not, was false, or a statement of expectation that has not been fulfilled;

(f)

that any undertaking recorded in the licence has not been fulfilled;

…”

“28.(1) Where, under section 26(1) or 27(1), a traffic commissioner directs that an operator’s licence be revoked, the commissioner may order the person who was the holder of the licence to be disqualified (either indefinitely or for such period as the commissioner thinks fit) from holding or obtaining an operator’s licence; …

…

(5)

The powers conferred by subsections (1) and (4) in relation to the person who was the holder of a licence shall be exercisable also –

(a)

where that person was a company, in relation to any director of that company …”

Section 37 of the 1995 Act gives a right of appeal to the Upper Tribunal against, inter alia, any direction under section 26(1) and any order under section 28(1) and (5). Paragraph 5 of Schedule 2 includes offences consisting in the contravention of any provision contained in or having effect under any enactment relating to the maintenance of vehicles in a fit and serviceable condition.

The powers of the Upper Tribunal on an appeal are set out in paragraph 17 of Schedule 4 to the Transport Act 1985, which reads as follows, so far as material:

“17.(1) The First-tier Tribunal and the Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport. In the case of the Upper Tribunal, this is subject to sub-paragraph (3).

(2)

On an appeal from any determination of a traffic commissioner …, the Upper Tribunal is to have power –

(a)

to make such order as it thinks fit; or

(b)

to remit the matter to –

(i)

the traffic commissioner who made the decision against which the appeal is brought; or

(ii)

as the case may be, such other traffic commissioner as may be required by the senior traffic commissioner to deal with the appeal,

for rehearing and determination by the commissioner in any case where the tribunal considers it appropriate;

and any such order is binding on the commissioner.

(3)

The Upper Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal.”

It is well established that the task of the Upper Tribunal when considering an appeal from a decision of a traffic commissioner is to review the material before the traffic commissioner, and the Upper Tribunal will only allow an appeal if the appellant has shown that “the process of reasoning and the application of the relevant law require the tribunal to take a different view”, as explained in Bradley Fold Travel Limited and Peter Wright v. Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R. 13, at paragraphs 30-40. This is sometimes summarised as requiring the Upper Tribunal to conclude that the traffic commissioner was plainly wrong. Mr. Finnegan accepts in his submissions that that is the correct test and further that the burden of showing that the decision is wrong rests on the Appellants, citing Fergal Hughes and Perry McKee Homes Limited v. Department of the Environment in Northern Ireland [2013] UKUT 0618 (AAC).

It is also well established that when considering mandatory revocation of a standard operator’s licence the questions a traffic commissioner will need to consider will include how likely the operator is to operate in compliance with the licensing regime in future and whether the conduct which has taken place is such that the operator should be put out of business. The first of those questions was identified in Priority Freight Limited and Williams 2009/225 and is commonly referred to as “the Priority Freight question” and the second was identified in Bryan Haulage Limited (No. 2) 217/2002 and is commonly referred to as “the Bryan Haulage question”. It is clear from the decision in Bryan Haulage that the question was framed in the light of the need for a relationship of proportionality between the conduct found to have occurred and the sanction necessarily to be imposed. If a positive answer is to be given to the question, it is because revocation is a proportionate response to the relevant conduct. The Priority Freight question is regarded as a preliminary question, to be asked before the Bryan Haulage question is asked, because, as explained in Priority Freight, if the evidence demonstrates that the operator is very likely to be compliant in future, that may indicate that the case is not one in which the operator should be put out of business.

As already mentioned, both the Bryan Haulage and the Priority Freight questions were framed in the context of revocation of a standard licence, in relation to which one of the conditions to be satisfied on application is that the applicant is of good repute: see s.13A(2)(b) of the 1995 Act. That particular condition does not apply to applicants for a restricted licence, who have to satisfy the different “fitness” requirement set out in s.13B. It was decided, however, in Redsky Wholesalers Ltd. T-