Jones (t/a Shamrock Coaches) v Department of Transport Welsh Traffic Office

LADY JUSTICE SMITH: This is an appeal from a decision of the Transport Tribunal given on 27th April 2004 dismissing the appellant's appeal against a decision of the Traffic Commissioner for the Welsh Traffic Area given on 26th August 2003. The appeal is brought pursuant to section 117(2) and Schedule 4 paragraph 14 of the Transport Act 1985. By reason of those provisions the appeal is a statutory appeal for which permission to appeal to this court is not required.

The appellant, Mrs Alison Jones, has a business trading as Shamrock Coaches which operates bus services in South Wales. She was granted a Public Service Vehicle Operator's Licence under the Public Passenger Vehicle Act 1981 ("the 1981 Act"), and under section 6 of the Transport Act 1985 ("the 1985 Act") she registered the particulars of various services which her business undertook to provide. Having done that, she became subject to a supervisory regime designed to ensure the maintenance of proper standards in those services.

The services provided by bus operators are monitored, and, if grounds for concern arise, the Traffic Commissioner for the area may set up a public inquiry at which he or she will make findings as to any deficiencies in the service. Under section 26 of the 1985 Act, if the Commissioner finds that the operator has failed, without reasonable excuse, to operate a service registered under section 6 of the Act, or has operated it in contravention of that section, the Traffic Commissioner may impose certain sanctions. These may comprise limitations upon the services that the operator is allowed to provide, and may, under section 111, include a financial penalty. An operator aggrieved by the Commissioner's findings, or by the imposition of the sanctions, may appeal to the Transport Tribunal.

In 2001, concerns arose about the services operated by the appellant and, in early 2002, the Traffic Commissioner decided to hold a public inquiry. On 6th February 2002 he issued what is known as a call-up letter, informing the appellant of the nature of the concerns which were to be investigated at the inquiry and advising her of the adverse findings which might be made. In essence the complaint against the appellant was that she was said to be in breach of section 26 of the 1985 Act. The date on which the hearing was to be held was advertised, as required by section 54 of the 1981 Act.

The inquiry took place over three days in April 2002. Various witnesses were called in support of the allegations and complaints. The appellant was represented. She gave evidence and called 20 witnesses, including members of her own staff, representatives of the local authority and the local Chamber of Trade.

On 19th June 2002, the Commissioner issued his decision. He found that the appellant had failed, without reasonable excuse, to operate the local services as required. Out of the 477 journeys monitored, he found that 25 per cent had failed to run at all and 13 per cent had failed to run on time. A journey failed to run on time if it was more than five minutes early or late. Six journeys had operated unregulated. So there was, under his findings, some form of irregularity in 39 per cent of all the journeys monitored. The Traffic Commissioner held that this amounted to a breach of section 26.

He then considered whether there was any reasonable excuse for these irregularities. He listed the excuses advanced and found that they did not amount to a reasonable excuse for the failures, although they mitigated the seriousness of the irregularities to some extent. He imposed various penalties, including a financial penalty, the details of which are not germane to this appeal.

The appellant was dissatisfied and appealed to the Transport Tribunal. Ms Sinclair, who has appeared for the appellant before this court, also represented her before the Tribunal. At the Tribunal Ms Sinclair advanced four main points. The first two related to questions of jurisdiction. The third alleged that the Commissioner ought to have quantified the amount of the financial penalty, rather than expressing it, as he had done, as a percentage of a sum not yet precisely known. Finally, it was submitted, in effect, that the Commissioner's decision was perverse. The expression used was that it was fundamentally flawed. A large number of criticisms were advanced as to the manner in which the Commissioner had approached the evidence. It was said that he had failed to analyse the evidence and to identify what he had accepted and rejected. Complaint was made of his findings on various specific points.

On 29th November 2002 the Transport Tribunal, under the chairmanship of Mrs Frances Burton, allowed the appeal. The terms on which they did so have given rise to a further hearing before the Commissioner, another appeal to the Transport Tribunal and, finally, an appeal to this court.

The Transport Tribunal rejected the first two grounds of appeal relating to jurisdiction. They accepted the third ground, relating to the quantification of the financial penalty, holding that the Commissioner should have quantified the financial penalty precisely before imposing it. With respect to the fourth ground, that of perversity, the Tribunal plainly had some concerns about the way in which the Commissioner had analysed the evidence and reached his conclusions.

One of Ms Sinclair's complaints had been the way in which the Commissioner had reached his finding that 39 per cent of all journeys monitored had been subject to some irregularity. The Tribunal asked her whether her client accepted that any findings of irregularities were justified. The appellant conceded that 16 per cent of journeys were irregular in some way. The Tribunal observed that that was unacceptable and, of itself, amounted to a potential breach of section 26, subject of course to the consideration of the reasonableness of the excuses advanced for the irregularities.

However, the Tribunal accepted the appellant's submission that the Commissioner's approach to the evidence of reasonable excuse had not been satisfactory. He had, the Tribunal said, failed to analyse or evaluate the potential excuses, but had instead dismissed them as "familiar, routine, or otherwise not exceptional". They observed that while it was not necessary for a Commissioner to examine each and every excuse, and that he might properly make a broad judgment as to whether there was a reasonable excuse for the irregularities, the Commissioner in this case had based his judgment on at least one incorrect conclusion.

Unfortunately, it is not clear from the Tribunal's judgment which conclusion that was. Ms Sinclair has not been able to assist us on that point. Mr Lewis, who has appeared for the Department of Transport as intervener, has suggested to us that the incorrect conclusion referred to was the failure to analyse the evidence relating to reasonable excuses. He may be right. If not, the supposedly incorrect conclusion remains a mystery. In any event, the Tribunal said that for two reasons -- namely the failure to quantify the exact amount of the penalty and the shortcomings of the Commissioner's analysis of the evidence -- the Tribunal would:

In so far as relevant to this appeal, the order made by the Tribunal recorded that it had read the decision of the Transport Commissioner for the Welsh Traffic Area, had read the notice of appeal, had heard Ms Sinclair and had ordered that the appeal of Alison Jones be allowed and the matter remitted for further consideration by the Traffic Commissioner.

Some time later the same Traffic Commissioner, Mr David Dixon, wrote to the appellant, informing her that it was his intention to reconvene the hearing and to reconsider the two issues that had been identified by the Transport Tribunal. The appellant's solicitors wrote to him to object, contending that there should be a complete re-hearing. Moreover, the solicitors wrote to the Transport Tribunal, seeking clarification of its order. We have not seen that letter, although the reply has been read to us. From the reply, it seems to me reasonable to infer that the letter sought clarification about the intended scope of the re-hearing and possibly also about the procedure to be followed. It appears that the Tribunal Chairman replied that the case had been remitted for analysis of the irregularities and the reasons for them, and that how the Traffic Commissioner went about doing this was a matter for him.

It seems to me reasonable to infer that the solicitors' letter did not inquire about whether it had been the Tribunal's intention that Traffic Commissioner Mr Dixon should conduct the re-hearing or whether it had been intended that the re-hearing should take place before another Traffic Commissioner. We understand that Mr Dixon is the only Traffic Commissioner for Wales but he has deputies who could sit in his stead if necessary. Still less does it appear from the appellant's solicitors' letter that they had sought to address the Tribunal on the question of whether it was appropriate for Mr Dixon to continue to deal with the case. It is common ground that at the Transport Tribunal, as with other tribunals, the usual practice is that remission of a case will be to the same decision-maker as before, unless the Tribunal expressly states that the case is to be heard by a different person.

At the reconvened inquiry in May 2003, Ms Sinclair submitted to Traffic Commissioner Mr Dixon that the effect of the Tribunal's order was that the whole matter should be heard de novo by another Commissioner. The thrust of her argument was, first, that the appeal had been allowed on the ground of perversity and that if the Tribunal decided to remit the case for a re-hearing, it had to be for a complete re-hearing de novo of all the issues set out in the original call-up letter of February 2002. The Transport Tribunal had had no power to remit the case to the Commissioner for limited purposes. Moreover, she submitted that a limited hearing would be unfair to the appellant. Second, she submitted that the hearing could not lawfully go ahead because the inquiry had not been advertised in accordance with section 54 of the 1985 Act, and indeed it is common ground that the second hearing had not been publicly advertised.

Finally, Ms Sinclair submitted that the new hearing must take place before a different Commissioner. Anything less would be a breach of the appellant's right to a fair trial by an independent and impartial tribunal under Article 6 of the European Convention on Human Rights. Ms Sinclair submitted that Mr Dixon himself could not be expected to make a fresh analysis of the evidence with an open mind, given that he had already reached one set of conclusions by a broad brush approach which had been criticised by the Tribunal.

The Traffic Commissioner rejected these submissions. He considered that the wording of the Tribunal's order was sufficiently clear and that he was bound to comply with it. He referred to the usual practice of the Tribunal of specifying, if it so intended, that a case should be remitted for re-hearing by another Commissioner. That had not been done in this case. He considered that he was obliged to deal with the remitted case himself.

He also said that he did not think that the Tribunal had found his decision to be fundamentally flawed. He compared the language used by the Tribunal with that that he had seen in decisions based on perversity. The language used in this case was quite different. In particular, there was no suggestion that he had treated the appellant unfairly or had been biased. He concluded that he must hear the case himself and confine himself to the issues that the Tribunal had defined for him.

With respect to his failure to advertise the inquiry, he said that it was not necessary if this was a reconvened inquiry as he held it to be. He announced that the hearing would proceed.

Unfortunately, the quality of the tape recording of the proceedings which followed did not allow for a full transcript to be prepared. The discussion about the two main substantive issues, namely the irregularities and the excuses, was not recorded. However, the Commissioner provided a written decision and his account of events at the second hearing does not appear to be much in dispute.

The Commissioner dealt briefly with the issue of quantification of penalty. I need say no more about that. He then turned to the irregularities and the excuses. It was apparent from the Commissioner's opening remarks that he had anticipated that there would be some further submissions from Ms Sinclair and the possibility of further evidence. In the event, not only was there no more evidence from the appellant or her witnesses, there were no submissions on the substantive issues. The appellant declined to give any further evidence. The Commissioner invited Ms Sinclair and the appellant to assist him with the analysis of the irregularities and the reasons advanced to excuse them. For example, he asked the appellant, Mrs Jones, to identify the 16 per cent of the irregularities that she had accepted as correct before the Tribunal out of the 39 per cent that the Traffic Commissioner had identified. This she declined to do, apparently on the basis that the information was already available in the evidence given at the first hearing.

The Commissioner also asked Mrs Jones to identify which of the excuses she had advanced were particularly referable to which bus routes and irregularities. This again she declined to do on the basis that all the information was there and that all the Traffic Commissioner had to do was to analyse it again. Both Mrs Jones and Ms Sinclair refused to say anything further.

Faced with this attitude, the Commissioner had to do his best to re-analyse the evidence and reconsider his previous findings. This he did, and the result was that he remained satisfied that the rate of irregularity was as he had previously found. On reconsideration of the evidence in relation to the reasonable excuses, he reconsidered the evidence and accepted, as he had previously accepted, that they had some validity. However, he felt himself unable to relate specific excuses to specific failures in the service and again he was driven to take a broad brush approach to the extent to which the excuses mitigated the irregularities found. He adjusted the penalties very slightly.

The appellant appealed to the Transport Tribunal. This time the Chairman was Mr Hugh Carlisle QC. Four grounds of appeal were advanced. First, Ms Sinclair submitted that the public inquiry of May 2003 should have been a hearing de novo held before a different Traffic Commissioner. She suggested that that was what the Transport Tribunal had intended to order. She argued that the Tribunal sitting in November 2002 had had no power to remit the case for a resumed hearing on a limited basis. The Traffic Commissioner should have conducted a hearing de novo on all the issues identified in the original call-up letter. Her second submission was that the Traffic Commissioner should have published a notice of the second hearing.

The Transport Tribunal dismissed the appeal. They were quite satisfied that the statutory powers of the Transport Tribunal were sufficiently wide to permit them to remit a case for re-hearing in part as well as in full. They were quite satisfied also that that was what the Transport Tribunal had intended to do at the first appeal in November 2002. They also said that it was open to the Tribunal to direct that the re-hearing should be conducted by a different Commissioner or by the same Commissioner, and confirmed that which Mr Dixon had said, namely that it was the practice of the Transport Tribunal to state expressly if it was their intention to direct that the re-hearing should be held before a different Commissioner. They said that whether that was done had to depend upon the facts of each case and, in the present case, there was, they said, no hint of a need for a hearing before a different Traffic Commissioner. They mentioned the correspondence between the appellant's solicitor and the Transport Tribunal, and drew the inference from that that the presiding Chairman in 2002 had not intended that Mr Dixon should recuse himself from the further hearing. In those circumstances, the Tribunal considered that Mr Dixon had been right to continue hearing the matter himself.

In the course of their decision they expressed their satisfaction with the degree of care with which the Transport Commissioner had reconsidered his earlier findings. They considered that he had fully and properly explained the changes that he had made to his earlier decision and that his findings were justified. It is against that decision that this appeal is brought.

In the notice of appeal and skeleton arguments submitted to this court, Ms Sinclair submitted on the appellant's behalf that the Transport Tribunal had erred in holding that it had the power to remit a case for a partial re-hearing. However, at the start of the hearing this morning, Ms Sinclair conceded, very properly in my view, that that submission could not be sustained. She accepted that the Transport Tribunal does indeed have the power to remit a case for re-hearing, either in whole or in part, either to the same Traffic Commissioner or to a different Traffic Commissioner. That disposes of what appeared to have been the point of principle in this appeal.

This morning, Ms Sinclair took only two points. First, she submitted that the Transport Tribunal had been wrong to hold that the Commissioner had been right to conduct the second hearing himself. Second, she submitted that the second hearing was a public inquiry and should have been advertised in accordance with section 54 of the 1981 Act. However, she accepted that, if the second hearing was only a reconvening of the first inquiry and was properly restricted to a consideration of only a limited range of issues, as directed by the Transport Tribunal, there would be no statutory obligation on the Traffic Commissioner to advertise the second hearing.

Ms Sinclair submitted that Traffic Commissioner Mr Dixon ought not to have conducted the second hearing. He should have refused to do so and should have referred the matter to another Traffic Commissioner for a re-hearing de novo. She submitted that that is what the Transport Tribunal must have intended by their order of 29th November 2002. She cannot of course now challenge, and does not seek to challenge, the decision of the Transport Tribunal on that occasion.

On the question of whether the Transport Tribunal must have intended that the second hearing should be conducted by a different Commissioner, it seems to me that the evidence is clear. They did not. It is common ground that the practice of the Tribunal, if intending to make such a direction, is that it will be explicitly spelled out. The absence of any such direction implies that the second hearing is to be conducted by the same Traffic Commissioner as before. Here matters went further because the appellant's solicitors sought clarification of the Tribunal's order, and the reply certainly does not suggest that the Tribunal had intended that there should be a change of Traffic Commissioner. Indeed, everything points to the conclusion that the Tribunal did indeed intend that Mr Dixon should conduct the second hearing and confine himself to the limited issues that they had identified.

That, however, is not conclusive of the issue as to whether Mr Dixon was right to refuse the appellant's application that he should recuse himself. The appellant submitted that he should have done so on the ground that his decision had been criticised and found fundamentally flawed. She argued before this court, as she had argued before him, that he was no longer in a position to do justice to the appellant's case.

It is well established that there will be cases where a new decision-maker is required on a re-hearing, and when those circumstances arise the re-hearing will of necessity have to be de novo. Whether that is necessary and appropriate depends upon the circumstances of the individual case. Typically those circumstances arise where the decision-maker has shown bias against the losing party or has expressed a view about the case from which it would be difficult or impossible for him or her to depart. It will also be appropriate where the decision is fundamentally flawed.

However, in my view those circumstances did not arise in this case. The Traffic Commissioner observed that he had not been accused of bias and that he did not believe that the Tribunal had found that his decision was fundamentally flawed. He said that the language they used was not that which they usually use when they were making that criticism. The Transport Tribunal on appeal said that there was no hint of a need for a hearing before a different Commissioner.

Although Ms Sinclair submitted with some vigour that the original decision was fundamentally flawed, she has in my view failed to make good her submission. It appears to me that the criticisms made by the Transport Tribunal in November 2002 of the Commissioner's first decision were quite limited and certainly did not include any adverse comment on his fairness. In effect, what they were saying was that he had approached his decision with too broad a brush. He must go back and deal with matters in greater analytical detail. That was all.

In my view this was not a case in which justice required that the matter be transferred to another Commissioner. It is true that the Commissioner's second decision was not very different from his first. He found it difficult to conduct a more detailed analysis and his second decision could also be said to have been reached by the application of a broad brush. In my view that is, to a large extent, inevitable in cases of this kind. If it is not possible to relate specific excuses to specific irregularities it will be difficult for the Commissioner to do other than to apply a broad brush.

I should add that the Commissioner's difficulties at the second hearing were not assisted by Ms Sinclair's refusal, apparently on the specific instructions of her client, not to assist the Commissioner with his analysis.

In my view, the Commissioner's decision to continue with the second hearing was plainly right and the Transport Tribunal was right in upholding that decision. I would therefore reject the first and principal ground of appeal.

As I indicated earlier, the second ground, relating to the duty to advertise the hearing, was dependent upon the first ground. If it is established that the second hearing was conducted, and properly conducted, as a resumption of the first inquiry, then Ms Sinclair has accepted that there was no duty on the Commissioner to advertise the resumed hearing. It follows from what I have said that the second ground of appeal should in my view also fail.

For my part, I would dismiss this appeal.

LORD JUSTICE JACOB: I agree.

LORD JUSTICE JUDGE: I also agree. I shall add a few words of my own by way of emphasis.

Paragraph 9 of Schedule 4 of the Transport Act 1985 provides that the Transport Tribunal:

In my judgment, on its proper construction these provisions are wide enough to allow the Transport Tribunal either to remit the case for full reconsideration generally or for such limited purposes as the Tribunal thinks fit and, if so, to direct either that the hearing should take place before the same or before a differently constituted Tribunal as appropriate. In short, the jurisdiction point was rightly addressed and decided by the Transport Tribunal presided over by Mr Hugh Carlisle QC.

At the hearing of this appeal, Ms Sinclair decided that she should not seek to sustain the submission to the contrary to be found in her skeleton argument. That concession, based on a closer analysis of the statutory provisions than she had been able to address earlier, was in my judgment rightly made and sensibly dealt with.