[2025] UKUT 146 (AAC)

On 27 March 2025, the Appellant’s representatives submitted two statements with supporting annexes; one from Mr Peter Fyvie and one from Ms Beverley Bell, the Appellant’s representative.

Bearing in mind that the Upper Tribunal cannot take into account circumstances which did not obtain at the time of the determination subject to appeal, the principles for allowing fresh evidence to be heard, and which apply to the Upper Tribunal, are laid down in the case of Ladd v. Marshall [1954] 1WLR 1489 where Denning LJ held (at 1491):

“To justify the reception of fresh evidence...three conditions must be fulfilled: first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

We had read the statements in advance of the submission to enable us to decide this issue. Mr Fyvie’s statement narrates that prior to Mr Walton leaving ECL, the operator intended Mr Fyvie to become the designated TM. It relates his interaction with the VOLS system from 12 August 2024, his attempts to complete and upload the TM1 form, the difficulties he experienced in proving his identity online and that he attended a Post Office with his passport to verify his identity. He explained that he had understood from the member of staff at the Poast Office that he would not require to do anything further. Clearly, that was incorrect. Mr Fyvie recalled receiving the email of 2 September 2024, but could not confirm that he had acted upon it. He assumed this was the confirmation email the Post Office staff had told him to expect. He stated that he had not read that carefully enough. He explained that he had become so fixated on his difficulties trying to verify his identity that he forgot about the letter of 27 August 2024 and the further information required. He explained that if the OTC had sent him another email specifically about this or even called him, he would have completed the process. The annexes to his statement are emails to Mr Fyvie from VOLS and one from Gov.UK One Login.

Ms Bell’s statement narrates her qualifications, experience and expertise in transport law and how she was instructed by ECL on 15 October 2024 when the licence was revoked. She is a former Traffic Commissioner for the North West Traffic Area and Senior Traffic Commissioner. She retired from the latter post in 2017 and set up her current consultancy business. Her statement explains that in her experience a TC would normally send a “propose to revoke” letter rather than rely on a letter such as the letter of 27 August 2024. In paragraph 8 of her statement she tells how, on 16 October 2024, she called a senior civil servant at the OTC to query the procedure followed by the DTC. The Annex to her statement is her attendance note of that call. The attendance note, she says, records that she was told new instructions to OTC staff from TCs are that if there is no response to correspondence then staff are specifically prohibited from contacting the operator and are instructed that the case must be referred to the TC to revoke the operator’s licence. The civil servant advised her that this is referred to as the “single request letter process”. As the last letter was sent on 27 August 2024 there was no further contact made by the OTC and the matter was referred to the TC for revocation. The new procedure, she was told, is not in the Senior Traffic Commissioner’s Guidance. The civil servant told her that, as far as he was aware, the new operating instruction had not been issued to the industry. Paragraphs 9 and 10 of Ms Bell’s statement and parts of her attendance note contain legal opinion.

Mr Davies invited the Upper Tribunal to admit the statements in accordance with the test set out in Ladd v Marshall, as applied to the Upper Tribunal’s procedure in Thames Materials 2002/40:

“…

(i)

The fresh evidence must be admissible evidence.

(ii)

It must be evidence which could not have been obtained, with reasonable diligence, for use at the public inquiry.

(iii)

It must be evidence such that, if given, it would probably have had an important influence on the result of the case, though it does not have to be shown that it would have been decisive.

(iv)

It must be evidence which is apparently credible though not necessarily incontrovertible.

We would have thought that the first condition hardly needed to be stated but it is quite apparent from the terms of Mr Clarke’s statement that it needs to be stressed. There are authorities which indicate that condition (ii) is the critical condition.”

Regarding the first condition, Mr Davies submitted that Mr Fyvie’s evidence was admissible. It was factual and it provided the context to the TM application and the difficulties Mr Fyvie experienced with the online platform and trying to add information. Ms Bell’s statement in paragraphs 1-4 was factual. Paragraphs 5-8 narrated her experience of the propose to revoke procedure and her call to the OTC. The annex to her statement recorded the telephone call. He submitted that Ms Bell’s statement, other than paragraph 10, and her attendance note were admissible regarding the new operating instructions to OTC. He did not seek to have paragraph 10 admitted.

Addressing the second condition, Mr Davies noted that in Thames Materials a public inquiry (“PI”) had already taken place whereas in this case there had been no PI. If there had been a PI then this evidence would have come out and it would have been available to the UT. Mr Davies argued that the second condition discloses why the statements should be admitted because they provide the context as to why a PI was not convened and to refuse to admit them would rob the Appellant of the ability to present the Upper Tribunal with the reasons why the licence was revoked by the DTC.

Considering the third and fourth conditions, Mr Davies submitted that the statements are plainly important in providing context and the reason there was no PI and that they provide credible evidence of the factual position that led to no PI being convened and the licence being revoked.

We accept Mr Davies’ submission that the factual evidence provided by Mr Fyvie and Ms Bell is admissible and important, such that it would have been liable to have an important influence on the DTC’s decision. Further, we have no reason to doubt that it is also evidence which may presumably be believed. Considering the second condition referred to in Thames Materials, in this case there was no PI for a combination of reasons, it would seem. Mr. Fyvie tells us that he mistakenly believed he need do nothing further once he had gone to the Post Office to confirm his identity. In addition, he had become so concerned with the identity verification, that it put out of his mind that he had not provided a letter to the OTC setting out how his TM duties would be fulfilled. Also, he failed to notice that he had not received confirmation from the OTC that his nomination had been accepted. As a result, he was in ignorance of the fact that he had not complied with the OTC’s requirements and neither he nor the company directors realised that they should be seeking a period of grace and/or a PI. While not entirely in point, the following passage from Lord Denning’s judgment in Ladd (at p 1492) is instructive:-

“Again, if it was proved that a witness made a mistake on a most important matter and wished to put it right, and the circumstances were so well explained that his fresh evidence was presumably to be believed, then again there would be ground for a new trial: see Richardson v Fisher (Footnote: ⁸).”

While Mr Fyvie did not make a mistake in his evidence, he clearly was in error over what procedure he had to follow and what he had, and had not, completed of the required documentation. While these omissions and this inattention to detail may be criticised, these failures do not appear to have been done in bad faith, or to have been a deliberate attempt to defy the regulatory system or to mislead the OTC. In all the circumstances, we decided to admit the fresh evidence of Mr Fyvie and the factual evidence of Ms Bell. Paragraphs 9 and 10 of her statement and the parts of the attendance note containing legal opinion are not admitted.