[2025] UKUT 328 (AAC)

On 19 June 2025, the Appellants were given notice that their appeals would be heard at 2 p.m. at Cardiff Civil Justice Centre on 11 August 2025. The notice required the Appellants to confirm by 3 July 2025 that they would attend, or be represented at, the hearing. No confirmation having been received, a reminder letter was sent to the Appellants on 10 July 2025 requesting confirmation of attendance “by return”.

On 6 August 2025 (three working days before the hearing), Kyle Gettings spoke to a member of Upper Tribunal staff on the telephone. Kyle Gettings said that he would attend the hearing and be represented by HPJV Solicitors. Rule 11(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (2008 Rules) provides that, if a party appoints a legal representative, the representative must send or deliver to the Upper Tribunal written notice of the representative’s name and address. The Upper Tribunal has not received written notice from HPJV Solicitors (or, for that matter, any other communication) that they have been appointed as the parties’ legal representative.

Neither Kyle Gettings nor any representative were in attendance at Cardiff Civil Justice Centre at 2 p.m. on 11 August 2025. At 2.15 p.m. the court clerk telephoned Kyle Gettings who informed the clerk that he had sent an email requesting an adjournment because his solicitor was on holiday and would not be able to attend the hearing. The Upper Tribunal had no record of having received such an email but Kyle Gettings informed the clerk that he would “immediately” forward a copy of the email to the clerk’s email address. By 2.30 p.m. no email from Kyle Gettings had been received by the clerk. The judge checked the entries on the Upper Tribunal’s electronic case management system. There was no record of any email as described by Kyle Gettings having been received.

Rule 38 of the 2008 Rules provides as follows:

“If a party fails to attend a hearing, the Upper Tribunal may proceed with the hearing if the Upper Tribunal—

(a)

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b)

considers that it is in the interests of justice to proceed with the hearing.”

The Upper Tribunal refused the Appellants’ request for an adjournment which it considered consistent with the overriding objective of the 2008 Rules of dealing with cases fairly and justly. The Upper Tribunal relied on the following considerations in refusing to adjourn. The Appellants have had nearly two months to prepare their cases for hearing. If they wanted to be legally represented, they should not have waited until three working days before the hearing before contacting a solicitor. No written notice of acting has been received from the legal representative, as required by the 2008 Rules. This email requesting an adjournment, which was supposed to have been forwarded “immediately” on the afternoon of 11 August 2025 was not received. These latter two considerations lead us to doubt whether arrangements have in fact been made for a solicitor to represent the Appellants at a hearing. The claim is also difficult to reconcile with Kyle Gettings’ statement on 6 August 2025 that he had made arrangements to be legally represented at the hearing on 11 August. Finally, the Upper Tribunal took into account the apparent merits of the appeals, which it considered to be low, and which militated against granting an adjournment. In the circumstances, the time and public funds that would be expended by adjourning were not justified.

For the purposes of rule 38 of the 2008 Rules, the Upper Tribunal was satisfied that the parties had been notified of the hearing (Kyle Gettings’ would not have had a conversation with Upper Tribunal staff on 6 August 2025 about the hearing unless he knew that it was listed for 11 August). The Upper Tribunal was also satisfied that it was in the interests of justice to proceed with the hearing, relying here on the same considerations as were taken into account in refusing to adjourn. The hearing proceeded in the absence of the Appellants.

We deal first with the grounds of appeal that are clearly devoid of merit. Ground (2) cannot succeed. Asserted recent, that is after the Traffic Commissioner made his decisions, improvements in compliance cannot cast doubt on the legality of the Commissioner’s decision, nor the reliability of his findings of fact. Ground (3) also says nothing about the legal or factual correctness of the Commissioner’s decisions.

Before considering Ground (1), we note that maintenance shortcomings were but one of numerous adverse compliance findings made by the Traffic Commissioner. None of the other findings are challenged and there is a respectable argument that, even if the maintenance findings are ignored, the Commissioner’s decisions have a sound legal and factual basis. In any event, Ground (1) has no merit. The Appellants identify no flaw in the Commissioner’s reasons, nor do they argue that the Commissioner overlooked relevant evidence. The argument is simply that the Appellants could not provide evidence of six-weekly maintenance inspections because the operator thought it was being over-charged by a one-time maintenance provider. If that is what happened, it is of no consequence so far as the validity of the Commissioner’s decisions are concerned. The operator undertook to retain records of safety inspections for 15 months. That was an unqualified undertaking undiluted by any considerations of cost. The Commissioner was quite right to find that the operator failed to adhere to the promises that it made when it applied for an operator’s licence.

We note that Ground (4) is unsupported by any analysis of the legal concept of proportionality nor is it particularised. However, out of fairness to the Appellants, we shall assume it is argued that (a) the Traffic Commissioner failed to consider proportionality and (b) the decisions taken were disproportionate.

It cannot be said that the Traffic Commissioner failed to have regard to the need for proportionality in making regulatory decisions. Indeed, the Commissioner’s careful questioning about the likely consequences of different degrees of regulatory intervention, towards the end of the public inquiry hearing, may, in our view, properly be considered a model of informed proportionality enquiry.

We are also satisfied that the Traffic Commissioner’s decisions were a proportionate regulatory response to the facts as he found them to be. On those facts, this was clearly a serious case involving deceit (lying to DVSA Examiners and deliberate frustration of DVSA’s legitimate attempts to discharge their regulatory obligations), rank incompetence (failing to ensure that four vehicles were properly taxed for some eight months, and operating a vehicle without a valid MOT), significant ignorance of an operator’s legal obligations (inability to provide evidence of safety inspections, outsourcing work to an unlicensed haulier), cavalier approach to tachograph obligations and what was, on any reasonable view in the light of the MOT failure rate, a very poorly maintained fleet of vehicles being vehicles with the potential to cause catastrophic damage to other road users. The Commissioner’s categorisation of this as a severe case, for the purposes of Senior Traffic Commissioner Statutory Document No.10, was fully justified and his regulatory response to this severe case was, in our view, proportionate.

For the above reasons, these appeals are dismissed.