Banga (t/a Banga Travel) v Secretary of State for the Transport Department

This appeal concerns the operation by the appellant of bus services in the West Midlands under a licence granted under the Public Passenger Vehicles Act 1981 (“the 1981 Act”). Such licences are known as public service vehicle (“PSV”) operator’s licences.

The appellant had such a licence to operate 15 buses but on 20 November 2006 the Traffic Commissioner for the West Midlands area revoked it, using his powers under section 17 of the 1981 Act, and disqualified the appellant from holding a licence for two years. The appellant appealed to the Transport Tribunal under section 50(4) of the 1981 Act. That appeal to the Transport Tribunal lies both on issues of fact and on issues of law and indeed on how any discretion should be exercised. The Transport Tribunal dismissed the appeal on 20 April 2007.

The appellant now appeals to this court. That right of appeal exists only on a point of law and that is made clear by Schedule 4 paragraph 14(2) of the Transport Act 1985 which says in terms that no appeal lies on a question of fact.

There appears to have been some uncertainty, at least at some point, as to whether permission to appeal is required for an appeal to this court from the Transport Tribunal. Paragraph 14 (3) of Schedule 4 provides that:

The arguments concerning statutory appeals were thoroughly considered by this court in the case of Colley v the Council for Licensed Conveyancers [2001] EWCA Civ 1137 where it was concluded that there was no general requirement for permission to appeal deriving from the CPR or the Practice Direction under part 52, so far as statutory appeals from tribunals were concerned.

That is certainly the approach this court has already taken on at least one occasion in the past where the appeal was from the Transport Tribunal. In Alison Jones t/a Shamrock Coaches v Dept of Transport Welsh Traffic Office [2005] EWCA Civ 58, Smith LJ, with whom the other two members of the court agreed, referred to the relevant provisions of the Transport Act 1985 and simply stated this:

That appears to me to be correct in law. No permission to appeal is required for appeals to this court from the Transport Tribunal and I turn therefore to the basic facts and arguments in this case.

The appellant has held a PSV operator’s licence since 1993 authorising, by the time with which we are concerned, the operation of 15 vehicles. He was also the nominated transport manager of Banga Travel. “Transport manager” is a role specifically provided for in the 1981 Act: see Section 16A(1)(b) and 16A(2). As one might expect, that Act seeks to ensure that buses or coaches used to carry members of the public are maintained in a safe and roadworthy condition. A PSV operator’s licence cannot be granted unless the Traffic Commissioner is satisfied that there will be:

The Traffic Commissioner has both the power and the duty under section 17(1) to revoke the licence if it appears to him at any time that the holder no longer satisfies the requirement as to professional competence, and he has a further power under section 17(2) to revoke or suspend the licence on any of the grounds set out in section 17(3). Those grounds include the fact that a prohibition has been imposed under section 69 of the Road Traffic Act 1988 by a vehicle examiner on the driving of a vehicle owned or operated by the PSV licence holder -- see ground (c).

Those were the powers relied on by the Traffic Commissioner in the present case. Before exercising them he held, as he was required to do under section 17(4) of the 1981 Act, an inquiry, that taking place in September 2006.

That was not the first inquiry held by him to consider the maintenance of the appellant’s fleet. In particular, following the issue of a number of prohibitions in April 2005 there had been a public inquiry, which resulted in a decision to reduce the number of vehicles on the appellant’s licence from 15 to 7. That decision was made on 31 October 2005. On appeal against that decision the Transport Tribunal was persuaded that, in the light of a new maintenance contract with a company called BDS Commercials Ltd, entered into since the Traffic Commissioner’s decision, the reduction in the number of vehicles was too drastic. By its order of April 2006 the Transport Tribunal remitted the matter to the Commissioner for him to consider whether the maintenance system now proposed would be adequate.

Thus the matter came before the Commissioner in September 2006. There was additional evidence by then about further examples of poor maintenance from vehicle examiners. This evidence disclosed a continuing problem of serious defects since the previous hearing. The main vehicle examiner said, according to the eventual decision, that there was:

The appellant himself gave evidence at that inquiry, as did others, as part of his case. On his behalf it was said:

The Traffic Commissioner was not persuaded by that submission. He found, paragraph 43, a failure to fulfil the undertaking to make proper arrangements to ensure that vehicles were kept in a fit and serviceable condition. He took account of the impact of any action on the appellant’s business and he then considered his options. He concluded that the appellant deserved to lose his licence. Realistically, he said, the options were to revoke his licence or:

The appellant appealed to the Transport Tribunal on a number of grounds. None found favour. The tribunal was satisfied that the appellant had not taken adequate steps to remedy the deficiencies in his maintenance system. The tribunal went on to say this at paragraph 7 of its decision:

As I emphasised at the outset of this judgment, the appeal to this court, unlike that to the Transport Tribunal, is on points of law only. Most of the grounds now raised were raised before the tribunal but involved no point of law even though, in form at least, it is still sought to advance them. Thus one finds amongst the grounds the contention that the commissioner “failed to have sufficient regard to the improvements that had latterly been made”.

That ground does not raise a point of law. So long as the Commissioner took account of those improvements the weight he attached to them was a matter for him and subsequently the tribunal. Absent perversity, there is no possible error of law there.

There is also an argument raised about the proportionality of revocation. It is said that it was not proportionate to revoke the licence. Mr Goodwill, on the appellant’s behalf, accepts that the Traffic Commissioner considered proportionality but he argues that the Commissioner and then the Transport Tribunal erred in their decision on proportionality. He says that the tribunal erred in finding the Traffic Commissioner’s decision proportionate. This frankly is, as a point of law, a non-runner. What is proportionate in any given case does not normally give rise to any issue of law. It is a matter for the decision-maker to balance all the various considerations that are involved in a decision on proportionality: see, in a very different context, this court’s decision in Mukarkar v SSHD [2006] EWCA Civ 1045 at paragraph 11. It is only if a decision on proportionality adopts the wrong legal approach or is perverse that there will be an error of law. Mr Goodwill does not shrink from arguing that revocation and disqualification here was so disproportionate as to be perverse; that is to say in the true Wednesbury unreasonable sense that it was a decision to which no reasonable tribunal, properly instructing itself, could on the evidence have come.

Frankly, to my mind, that is a hopeless submission. There plainly were legitimate options open to the Traffic Commissioner on the facts involving revocation and disqualification. The Transport Tribunal from which this appeal is brought is a specialist body. This court will be reluctant to find that it has been perverse in reaching a decision on the merits and certainly there is no basis for us so finding in this case. The safety of the travelling public is not only a legitimate consideration to balance against the business interests of the appellant, it is a matter of great importance and clearly weighed heavily both with the Traffic Commissioner and the Transport Tribunal. There is no possible argument that these decisions were perverse. For my part I can see nothing of merit in these various points which were pursued before the Transport Tribunal.

The main argument advanced this morning is one of procedural irregularity. It is said by Mr Goodwill that the Traffic Commissioner acted unfairly and in breach of natural justice in acting as he did between the September 2006 inquiry and his decision on 20 November 2006. What this argument is based on is largely the correspondence during that period. I have already referred to this briefly when quoting from the Commissioner’s decision but it is now necessary to take it in a little more detail.

After the inquiry at which the Commissioner had explored a great range of options in the course of the evidence being given, a letter dated 20 October 2006 was sent to the appellant’s solicitor on behalf of the Commissioner. That letter to the solicitor was brief. It read as follows:

The enclosed letter, which bears the same date, referred to the September inquiry and then went on as follows:

In a reply dated 3 November 2006, on behalf of the appellant his solicitor said this in the material paragraphs:

Before I come to the contentions now put forward, I do note that an undertaking as sought by the Commissioner is something which has statutory significance under the 1981 Act. It is a matter which can be taken into account when deciding whether or not to grant a licence under section 14 -- see section 14(3A). It is something which is recorded in any licence granted --see Section 14(5) -- and failure to fulfil an undertaking is a ground for revocation or suspension of a licence: section 17(2)(aa). So it is a formal matter recognised by the Act and its importance is something of which, one suspects, those with experience in the industry and those advising them would be very well aware.

On behalf of the appellant it is submitted that the Commissioner should have reconvened the public inquiry to explain why he sought this undertaking and to warn of the consequences if it was not given. Mr Goodwill argues that the Traffic Commissioner had not expressly raised this possibility at the hearing itself. Mr Goodwill has taken us to parts of the evidence where the various options were explored by the Traffic Commissioner. It is said that it was not clear in the letter of 20 October 2006 that the absence of such an undertaking would be so important in the ultimate decision. Consequently the submission is that the procedure adopted by the Traffic Commissioner was unfair and in breach of natural justice.

There is, it seems to me, a considerable initial problem about this line of argument. The appellant is seeking to persuade us that the Transport Tribunal erred in law in its decision, yet this point, as Mr Goodwill ultimately acknowledged, was never taken before the Transport Tribunal and consequently it has made no decision about it. If one looks at the tribunal’s decision, one finds indeed that before the tribunal it was being emphasised that the appellant wanted to retain control as Transport Manager (See paragraph 5 of the tribunal decision). There was never any suggestion in the grounds of appeal nor so it seems at the hearing before the tribunal that, given a further opportunity, the appellant would have agreed to stand down from that role.

The problem is that, if the tribunal never made the decision on the point that is now being put forward and was never asked to make a decision to that effect, how can it be said to have made an error of law? Mr Goodwill argues that there was an error by the Transport Tribunal in upholding a procedure which was unfair. But the fact remains that the tribunal did not pronounce upon the procedure because they were never asked to; the point was not raised. Now it may be that there could be extreme procedural regularities, ones so glaring that the appeal tribunal errs in law if it does not of its own volition identify it and deal with it. I for my part would not rule that out as a possibility. But even if there is that possibility, this case falls miles short of being such a case. The appellant therefore seems to me to fail at this initial hurdle.

But in any event the point seems to me to be bad on its merits. The undertaking sought by the Commissioner was clear in its terms; it required the appellant to appoint someone as Transport Manager “in place of himself”. Indeed it cannot be suggested that it was not clear and that the appellant did not understand it because, in the response sent on his behalf, the point is expressly made that he is not willing to appoint a new Transport Manager “in place of himself”, but that he intended to appoint his son as a joint Transport Manager. The distinction, in other words, was one appreciated by the appellant and those advising him. It is said, as I have indicated, that the importance of this particular undertaking sought should have been made clearer. I cannot accept that there is any deficiency in that respect; it must have been very obvious that the undertaking sought was important and obvious why it was sought. This was a formal letter from the Traffic Commissioner’s office seeking a formal undertaking. The request was, it seems, given “careful and serious consideration” by the appellant and yet the undertaking was not given. Patently the Traffic Commissioner was entitled to take that into account; I do not accept that he had to reopen the inquiry or in some way open a discussion with the appellant. Traffic Commissioners are not in the business of negotiating or bargaining. In addition both the letters of 20 October 2006 indicated that further clarification could be sought by or on behalf of the appellant if there was any uncertainty about the undertaking sought. No such clarification was sought for the reason which is apparent, namely that the terms of the undertaking were fully appreciated by the appellant.

I am not persuaded at all that the Traffic Commissioner erred in any way in the course of action which he adopted. There was no procedural irregularity or unfairness on his part. It follows that even if this point had been taken before the tribunal on appeal and had been rejected by that body, I would have found no error of law in such a decision by the tribunal. For these reasons I, for my part, am wholly unpersuaded by the arguments now advanced on behalf of the appellant and I would dismiss this appeal.

We have, finally, been asked, if such were our decision, to suspend revocation for a time to allow the appellant’s son to obtain his licence. We are told that he has applied some time ago for such a licence but the procedures are taking some time. I note that the Transport Tribunal itself made an order dismissing the appeal but only with effect from 1 June 2007, which would have been a period of something like 8 weeks after its decision. For my part, in fairness to the appellant, I would be prepared to dismiss this appeal but with effect from 8 weeks from today.

I agree. It may be a great pity that the appellant failed to appreciate the significance of the Traffic Commissioner’s request for an undertaking to surrender his position as Transport Manager and appoint another, the obvious candidate being his son, for that promotion. In my judgment the letter of 20 October very fairly gave the appellant the biggest hint possible of the dire consequences of the failure to step down from control of his business. The appellant could have dealt with this at the hearing before the tribunal but he chose not to do so. Instead his case, as presented to the tribunal, is summarised by the tribunal in paragraph 5 of its decision where it is recorded as follows:

It is a sad aphorism that pride comes before a fall; and for me the only difficult question in this appeal is whether we can properly cushion that fall. Can we do anything to give this business a chance of survival?

Well we certainly cannot allow the appeal because it is utterly hopeless. There is not the beginning of a point of law to be argued. The fact is that the tribunal did not err in any respect whatsoever; consequently the appeal must be dismissed. Then the question is whether we can extend a stay long enough to enable the son to take over the business and pick up the broken pieces. Though naturally sympathetic to the family of the appellant, whose business and whose livelihood is at risk, I do not see how we can do more than give the appellant a further eight weeks before the disqualification bites. That may give his son a chance to convey this observation to those who are adjudicating the son’s application for a licence, and if Mr Goodwill were to lick his pen and begin to write down the following observation, it is intended to be helpful.

The Court of Appeal fully understands the heavy workload of the Commissioners, especially since we are told that several valued members have recently retired and have not yet been replaced. Nonetheless it seems to me that Mr David Dixon would have wished to give the son a chance to take over the business without interruption. I am prepared to permit the appellant’s solicitors to communicate with the Commissioners, present my compliments and say that if the Commissioners could find a way to expedite their decision then this court would appreciate their cooperation, making it plain that this is a polite request and in no sense at all a direction. I hope that that will help this family.

The appeal is to be dismissed.

I would associate myself with my Lord’s remarks.