[2025] UKUT 146 (AAC)

The following principles (extracted from the Digest of Traffic Commissioner Appeals) as to the proper approach to an appeal in the Upper Tribunal can be found in the decision of the Court of Appeal in the case of Bradley Fold Travel Ltd & Peter Wright –v- Secretary of State for Transport [2010] EWCA Civ. 695:

“(1)

The Tribunal is not required to rehear all the evidence by conducting what would, in effect, be a new first instance hearing. Instead it has the duty to hear and determine matters of both fact and law on the basis of the material before the Traffic Commissioner but without having the benefit of seeing and hearing the witnesses.

(2)

The Appellant ‘assumes the burden’ of showing that the decision appealed from is wrong.

(3)

In order to succeed the Appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which the Tribunal ought to conclude that the different view is the right one. Put another way it is not enough that the Tribunal might prefer a different view; the Appellant must show that the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view.”

The Tribunal sometimes uses the phrase “plainly wrong” as a shorthand description of this test. (NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, paragraph 8).

From the material available to us, we accept that, other than the issue of the replacement of the TM, there were no grounds for the revocation of the operator’s licence. As Mr Davies submitted, and we agree, such a licence is valuable property both in practical terms and for the purposes of Article 1 of the First Protocol. It was essential for the operation of the Appellant’s business. Whilst we acknowledge that if mandatory requirements are not satisfied revocation will be inevitable, revocation of a licence means the loss of a valuable possession. Revocation should be proportionate to the conduct involved (Footnote: ¹³) and the operator should be given a fair opportunity to correct the situation, if able to do so.

In Bryan Haulage, The Upper Tribunal stated(paragraph 11):-

“In applying the Crompton case it seems to us that traffic commissioners and the Tribunal have to reconsider their approach. In cases involving mandatory revocation it has been common for findings to have been made along the lines of ‘I find your conduct to be so serious that I have had to conclude that you have lost your repute: accordingly, I have also to revoke your licence because the statute gives me no discretion’. The effect of the Court of Appeal’s judgment is that this two-stage approach is incorrect and that the sanction has to be considered at the earlier stage. Thus, the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation. Put simply, the question becomes ‘is the conduct such that the operator ought to be put out of business?’. On appeal, the Tribunal must consider not only the details of cases but also the overall result.”

While Mr Fyvie and the company directors were at fault for failing to monitor the TM appointment process and to fully complete it, nevertheless, the company was making a genuine attempt to have a TM appointed. At least one TM and, possibly four, were working for the operator. Accordingly, road safety does not appear to have been at risk during this muddled and bungled attempt to have Mr Fyvie appointed. Their failures were at the modest end of the scale.

In our judgment, in the circumstances that were or ought to have been known to the DTC: that this was an operator with a good track record, which had been in business for a long time, which was attempting to appoint a nominated TM, which had been uploading information onto VOLS after the “single request letter” of 27 August 2024, should have caused the DTC to pause before taking the serious step of revoking the licence and putting the operator out of business. The Bryan Haulage question was not addressed. We agree with Mr Davies’ submissions that in this case, as in Atbus, the circumstances and matters of fairness dictated that a PI ought to have been held. By proceeding directly to revocation without further ado, the DTC was plainly wrong.

Another matter which concerns us is that it is not clear from the appeal bundle and internal memoranda of the OTC whether the DTC had been informed that after the letter of 27 August 2024 and before the revocation, Mr Fyvie had responded to the letter by uploading certain information onto the VOLS system, albeit he had not completed the entire process. The suggestion in the recommendations to the DTC quoted in paragraphs 17 to 19 above is that there had been “no response” from the operator. That is not strictly correct. If the DTC’s decision not to appoint Mr Fyvie and to revoke the licence was partly based on this incorrect and incomplete information then the decision is in error of law. If the DTC was aware that further information had been uploaded onto VOLS after the letter of 27 August 2024, then in our judgment that should have prompted further inquiry and is all the more reason that a PI should have been directed rather than proceeding to revocation. Relevant evidence relating to Mr Fyvie’s application would possibly have emerged at the PI leading to his appointment and avoiding revocation. Or, indeed, the direction for a PI might, itself, have led to matters being rectified in advance of a PI.

We do not consider that it is necessary for the Upper Tribunal to make a ruling that the “single request letter” procedure will lead to unfairness in every case. However, in this case, for the reasons already discussed, we agree with Mr Davies’ submission that its application led to a decision that is plainly wrong.