Abbey Coaches (Darwen) Ltd & Anor

This is the appeal of (1) Abbey Coaches (Darwen) Ltd; & (2) Rigby’s Executive Coaches Ltd (“the Appellants”) from a decision of a Deputy Traffic Commissioner (the ‘DTC’), contained in a decision dated 11 September 2023, to revoke each of their standard public service vehicle operator’s licences. The Deputy Traffic Commissioner revoked both the Appellants’ operator’s licences on the basis that he determined that neither operator satisfied the requirements of i) Good Repute, upon breaching undertakings, and ii) Financial standing. The full details are set out in the Deputy Traffic Commissioner’s decision.

The Appellants appealed to the Upper Tribunal in a notice of appeal on 22 September 2023. Their representative subsequently provided four amended grounds of appeal dated 27 October 2023 which were as follows:

On 9 October 2023 the Upper Tribunal granted the Appellants’ application for a stay of the revocation decisions pending the outcome of their appeal.

The hearing of the appeal took place before the Upper Tribunal at Field House on 5 January 2024.

The Appellants were represented by Mr Backhouse of Backhouse Jones solicitors. His oral representations were in addition to his written skeleton argument dated 22 December 2023. We are grateful to him for the clear way in which he presented his case.

Asif Mohammed Din is the sole director of both Abbey Coaches (Darwen) Ltd and Rigby’s Executive Coaches Ltd (hereafter ‘Abbey’ and ‘Rigby’s’) which have held Standard International Public Service vehicle operator’s licences since 2003 and 1996 respectively. Abbey carries out school contract and private hire work. Rigby’s concentrates on rail replacement work and private hire including tours.

Their licences presently authorise 4 and 9 vehicles respectively and run in the curtailed form that was directed following a 2021 Public Inquiry. Curtailment is a shorthand for the Traffic Commissioner’s power to vary the condition on the licence by directing a reduction in the maximum number of vehicles which may be used on it at one time.

In the curtailment decision letter dated 21 September 2021, the TC had stated at paragraph 6, ‘The good repute of each of the three operators is marked as very badly tarnished but not lost.” At paragraph 8 he stated – ‘this is the last chance that any of the three operators before me will be given.’

Both companies subsequently sought upward fleet variations; applications made in early May 2023. In the case of Abbey from 4 vehicles to 10 vehicles, and for Rigby’s from 9 vehicles to 15 vehicles.

On 29 June 2023 the Office of the Traffic Commissioner (‘OTC’) issued calling in letters to the director of both Appellants (Mr Asif Din) for the companies to attend a joint Public Inquiry (PI) in relation to their variation applications and new applications of Harris Travel Ltd and Farid Saad (transport manager). The OTC specifically identified the issues of concerns in relation to both Appellants:

On 16 August 2023 the DTC held a single, joint PI involving both companies on the applications that had arisen since Mr Din became their director.

The shared, nominated transport managers (‘TMs’) for both companies at the time of the Public Inquiry were Farid Saad and Martin Evans. The former attended and gave evidence on his own behalf and that of the Appellants.

Originally, the hearing had also been convened to consider the new application of Harris Travel Ltd for a Standard International Public Service vehicle operator’s licence for 20 vehicles. That application was made on 1 February 2023 but was permitted to be withdrawn on 18 July 2023 (after the calling-in). It is also a company for which the sole director is Asif Din.

The hearing also concerned the new sole trader application of Farid Saad (acting as his own TM) for a Standard International Public Service vehicle operator’s licence for 1 vehicle. This application was made on 22 May 2023.

The DTC made a number of decisions in his written ruling dated 11 September 2023 which followed the PI. The relevant decisions in respect of the Appellants were to revoke the licences on the basis that:

In his ruling the DTC set out the previous history of the operators at [8]-[14] (references in square brackets are to paragraphs of the decision) including stating at [8]-[9]:

The DTC made findings on the financial standing of the Appellants as follows from [31] of the decision:

Evidence of financial standing was requested in advance of the hearing. Neither Abbey nor Rigby’s provided the requested Companies’ House evidence, but I was aware of it, raised it with Mr Din and took account of the following:

I had concerns that some other company, or person was operating vehicles under the licence, or/and that the bank statements (and therefore any calculation made) did not truly reflect the income and expenditure of the entities holding the licences. Subsequently, I raised these matters with the director.

…

I made the following findings on the balance of probabilities, except where stated, the findings relate to both operators:

In the light of the findings set out in paragraph 39, I also find both the companies to be without financial standing.

The DTC made findings on the Appellants’ maintenance arrangements as follows from [26] of the decision:

The calling-in to this Public Inquiry has its roots in the ‘unsatisfactory’ outcomes of Maintenance Investigation Visit Reports (MIVR) prepared by VE Wilson on 6 May 2022. His findings for both operators reflected a series of shortcomings in those businesses which (perhaps unsurprisingly) tended to mirror each other.

They referred to stretching of maintenance frequencies (27% of them in the case of Rigby’s), some driver detectable defects found at PMI, a failure to show rectification of some defects picked up by drivers, that recent evidence of CPD for the TMs was absent, and that the MOT first time pass rate for both was much worse than the national average.

The findings of DVSA were not the subject of material dispute.

The MOT history for Rigby’s showed a failure rate at first presentation of 78%: the national average is 12%. That for Abbey is not relied on, as for reasons that could not be identified, only a single vehicle appeared to have been presented for test in the last 2 years. Neither the director, nor I could believe this was accurate.

The prohibition history of the operators showed:

At [41] of the decision the DTC made findings about the good repute of the Appellant operators:

In making decisions about the good repute of the operators, I have balanced the positives and negatives:

I find that the negatives substantially outweigh the positives so much so that I conclude that good repute has been lost. Trust has been undermined beyond immediate repair.

The DTC made findings on the relevant operating entity of the Appellants as follows from [32] of the decision:

I had concerns that some other company, or person was operating vehicles under the licence, or/and that the bank statements (and therefore any calculation made) did not

On 22 September 2023, the Appellants appealed to the Upper Tribunal against the DTC’s revocation decisions.

The grounds of appeal were subsequently amended on 27 October 2023 and are set out above.

Applications for the grant and variation of Public Service Vehicle (PSV) licences can be only granted by the TC if various conditions are satisfied under section 14ZA of the Public Passenger Vehicles Act 1981 (‘the Act’). If these conditions are no longer satisfied, then the licence must be revoked (mandatory revocation) under section 17(1)(a) of the Act.

Sections 14ZA, 17(1) and 81 of the Act provide relevantly as follows:

The requirements of this section are set out in subsections (2) and (3).

The first requirement is that the traffic commissioner is satisfied that the applicant—

is of good repute (as determined in accordance with paragraph 1 of Schedule 3),

is of good repute (as determined in accordance with paragraph 1 of Schedule 3),

is professionally competent (as determined in accordance with paragraph 6 of Schedule 3), and

in the case of a transport manager designated under Article 4.2 of the 2009 Regulation—

is not prohibited from being so designated by a traffic commissioner, and

For the purposes of this Act—

where regulations under paragraph (a) above do not apply, the operator of a vehicle is—

the driver, if he owns the vehicle; and

Section 14ZA (2) (c) of the Act provides that an applicant for a standard operator’s licence (or a holder of such a licence) must be of appropriate financial standing “as determined in accordance with Article 7 of Regulation 1071/2009”. Article 7(1) of Regulation 1071/2009 (‘the Regulation’) makes it clear that the obligation is a continuing one. The legislative provisions provide a formula by which the amount an operator must show to be available is based upon the number of vehicles used under the relevant licence. If at any time it appears to the TC that the licence holder no longer satisfies this requirement revocation of the licence is mandatory.

Article 7(1)-(3) of the Regulation provide relevantly as follows:

By way of derogation from paragraph 1, the competent authority may agree or require that an undertaking demonstrate its financial standing by means of a certificate such as a bank guarantee or an insurance, including a professional liability insurance from one or more banks or other financial institutions, including insurance companies, providing a joint and several guarantee for the undertaking in respect of the amounts specified in the first subparagraph of paragraph 1.

Statutory Guidance issued by the Senior Traffic Commissioner under section 4C(1) of the Act for the purpose of providing information as to the way in which the Senior Traffic Commissioner believes that TCs should interpret the relevant law relating to the application of the Statutory Documents. The Guidance includes tables setting out what documents would be sufficient to provide evidence of the financial standing requirement for a limited company as follows:

In Thandi Coaches (Red) Ltd [2021] UKUT 198 (AAC) T/2020/66 (‘Thandi’), the Upper Tribunal addressed the apparent inconsistency between the more flexible requirements of the STC’s guidance and the strict requirements of Article 7(1) & (2) as to the form in which evidence of financial standing must be provided. By way of obiter observations, it rejected an argument that the guidance was therefore unlawful as it was irrational, unreasonable and did not correspond to or comply with Article 7:

That brings us on to the other contention contained in Ground 1. It is perhaps the most far reaching one. Again, because we have accepted Ground 1 is made out for other albeit

It is worth pondering on the implications if Mr Backhouse is correct. His approach

We are, of course, as we have already explained, not actually deciding the matter in

The burden of proof during a PI requires the Traffic Commissioner to be satisfied of the grounds for revocation as noted by Rix LJ in Muck It Ltd and Others v. Secretary of State for Transport (2005) EWCA Civ 1124:

“69.

Turning back to sections 26 and 27 of the 1995 Act, I would conclude that for revocation to be possible under the former or mandatory under the latter, it is the commissioner who must be satisfied of the ground of revocation, and not the licence holder who must satisfy him to the contrary. That seems to me to be the natural way to regard both the language of those sections, and the situations contemplated in them. The context is that of a licence holder and the possible revocation of his licence. Revocation can only be done on some specified ground (section 26) or because one or other of the three fundamental requirements is no longer satisfied (section 27). Under section 26(4), the commissioner can only act if “the existence of” a ground comes to his notice. It is counter-intuitive to think of a licence holder being required to negative the existence of a ground raised against him. So with section 27. The commissioner must revoke if “it appears to him” that the licence holder is no longer of good repute or of appropriate financial standing or professionally competent. That seems to me to mean that the commissioner must be satisfied that the requirements are no longer fulfilled. If it had been intended to place the same burden on the licence holder as had been placed on the original applicant, then the same language as that found in section 13 would have been used.”

Paragraph 17 of Schedule 4 to the Transport Act 1985 provides:

to remit the matter to—

Paragraph 17(1) of Schedule 4 to the Transport Act 1985 thus provides that “the Upper Tribunal are to have full jurisdiction to hear anddetermine all matters (whether of law or of fact) for the purposes of the exercise of anyof their functions under an enactment relating to transport”.

Nonetheless, in Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, the Court of Appeal explained that the then Transport Tribunal (now the Upper Tribunal) is not required to re-hear all of the evidence but, instead, has the duty to determine matters of fact and law on the basis of the material which was before the TC but without having the benefit of hearing and seeing from witnesses. The court applied Subesh and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, where Woolf LJ held:

“44….The first instance decision is taken to be correct until the contrary is shown…An Appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one…The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an Appellant assumes is to show that the case falls within this latter category.”

The Court of Appeal therefore explained that an appellant assumes the burden of showing that the decision which is the subject of the appeal is ‘wrong’ (what used to be categorised as ‘plainly wrong’), in order to succeed. An appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which it ought to be concluded that the different view is the right one. Put another way, an appellant, in order to succeed, must show that the process of reasoning and the application of the law requires the Upper Tribunal to take a different view.

The Upper Tribunal, in deciding an appeal such as this, is not permitted to take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal (see paragraph 17(3) of Schedule 4 to the Transport Act 1985). Therefore, we should not have regards to events that post-date the revocation decision of September 2023 in deciding whether the TC’s decision is wrong.

Mr Backhouse made various arguments in support of the Appellants’ four grounds of appeal which are addressed below.

We are satisfied that the Appellants have demonstrated that the DTC’s decision of 11 September 2023 to revoke their operator’s licences was plainly wrong on each of the grounds upon which they rely.

We are satisfied that the DTC did err in deciding that the Appellants did not satisfy the test for financial standing. This is for the reasons that Mr Backhouse submitted in his skeleton argument and as set out below.

The Deputy Traffic Commissioner erred in finding that financial standing was not met in the operating companies, and further was plainly wrong on the evidence to find that the Appellants were at an unfair competitive advantage in view of those financial arrangements.

The test for financial standing is contained in s 14ZA of the Public Passenger Vehicles Act 1981, which itself refers to Article 7 of the retained version of EU Regulation 1071/2009.

Any reading of this Article 7 is difficult to square with the established practice of the Office of the Traffic Commissioner, for non-Audited companies of relying on available cash calculations.

However, it is long established in the jurisdiction that this is how smaller companies can demonstrate financial standing and the Traffic Commissioner’s call-in letter applies this methodology in both cases (see page 81). Note ‘Certified’ accounts are a reference to certification by an auditor and cannot be relied upon (other than as circumstantial evidence – per the UT decision in Thandi Coaches) to meet the statutory test.

In this appeal the deputy Traffic Commissioner accepts at the outset and in his decision that both companies meet the test based on the available cash methodology (see page 3118 penultimate paragraph, and page 19 sixth bullet point).’

The DTC did accept at [31] of the decision (second bullet point for Abbey and third bullet point for Rigby’s) that the Appellants had satisfied the statutory guidance of the Senior Traffic Commissioner in relation to financial standing in that their bank statements met the financial standing requirements.

Therefore, it was wrong to seek to go behind it in the manner that it did in the ninth and tenth bullet points of [39] of the decision. The DTC had insufficient evidence or gave insufficient reasons in finding that the Appellants did not hold the sums that were demonstrated in their bank accounts to be sufficient. Further, there was simply no evidence that the Appellants were at unfair competitive advantage.

We have real sympathy with the DTC as to whether the sums in the Appellants’ bank accounts did represent the true or fair financial standing in relation to the companies. He was entitled to have concerns as to the companies’ true financial standing. However, there was insufficient evidence, in light of the material presented to him, to go behind the documents served at face value when they satisfied the statutory guidance.

Had the DTC wanted to, he could have undertaken a full and thorough investigation as to the true financial picture of the companies and whether they were simply keeping sufficient sums in a discrete bank account while holding liabilities, debts or the like elsewhere which undermined this position or whether the funds were in fact the assets of a different company. The danger of relying on the bank accounts alone is that a misleading picture can be presented as to the true financial standing of a company. That of course might go both to repute as well as financial standing.

However, the DTC specifically did not ask for draft or certified or audited accounts to be presented by the Appellants (and the related third party company) or for all financial information or documentation that might reveal their sources of income and expenditure, the beneficial ownership of assets and liabilities, whether funds were co-mingled or owned by others, and whether the Appellants held other accounts. This highlights further the merit in ground 4 – the DTC never called in the companies on the basis of financial standing and did not give them full notice that this was an issue nor conduct any serious investigation into the Appellants’ and related companies’ finances.

These are exactly the type of issues and concerns that could be addressed at a reconvened PI. We quash the decision on financial standing and order that it be remitted to a different TC to be reconsidered and reheard at a fresh PI. In its calling in letter the TC will need to identify what further financial material he or she wishes to see relating to the Appellants (and the related companies) in addition to the bank statements previously seen. These might include: all bank accounts for the relevant and related companies and relevant financial information over an extended period and draft and / or certified and / or audited company accounts in relation to each.

Notwithstanding the obiter observations in Thandi, there remains an interesting argument as to the lawfulness of the guidance and its compliance with Article 7 of the Regulation. We can see both the legal justification and practical benefit for the statutory guidance on financial standing being more flexible and less exhaustive than that contained in the Regulation. Further, both the DTC and Mr Backhouse relied on the guidance as constituting the requirement to demonstrate financial standing in this case and we see no reason to depart from this. Were the issue to have been determinative of an appeal, and given the significance of the point, procedural fairness would have required us to invite the Secretary of State to intervene and it to be fully argued on notice to all parties.

The appeal succeeds on Ground 1.

We are satisfied that the DTC was wrong to rely on maintenance arrangements in the way that he did to make findings of loss of good repute. This is mostly for the reasons set out by Mr Backhouse in his submissions:

The Deputy Traffic Commissioner erred in deciding that the maintenance arrangements, at the date of the public inquiry were such that the operator must be put out of business.

The MIVR dated May 2022 for both appellants was well over 12 months old at the time of the public inquiry. (page124 et seq. for Rigbys and page 271 et seq. for Abbey) The reports were necessarily looking back at documents over the previous 15 months i.e. towards the beginning of 2021, and still well within the Covid Pandemic period.

In that context it is important to note that neither report was particularly critical. The Rigbys report identifies just three areas on unsatisfactory. Two of these are statistical – historic prohibitions and MoT failure rates, with the remaining one being a small number of stretched frequencies. These are identified on the SIPCAT analysis (see page 138 – 141). The SIPCAT erroneously uses 42 days as the relevant period rather than 56 which is the 8-week period actually used by both Appellants (page 3122 final paragraphs and page 3158).

This does make a difference to the calculations, but in any event by the time of the Public Inquiry there is no evidence in the recent past of any issues with timeliness of inspections as the deputy Traffic Commissioner himself observes (Page 15 paragraph 33 second bullet point).

The MIVR for Abbey is even better with only one area of unsatisfactory – namely test pass rate (page 271 and 276). This should not even have formed the basis of a call to public inquiry.

Both MIVR assessments involved vehicle inspections and of the 6 vehicles looked at from both companies there were no prohibitable defects found (see page 125 - Rigbys and 272 - Abbey) .

As at the date of the Public Inquiry there was simply no evidential basis for a finding that the Appellants respective maintenance systems were so poor that they should be found to not have good repute and the licences should be revoked.

An additional area of analysis by the Traffic Commissioner was the as he describes 10 prohibitions across 4 vehicles attending the Glastonbury event in June 2023. A prohibition is the issue of the document against the vehicle and on one occasion only one will be issued listing all concerning defects per vehicle.

In fact, therefore, there are 4 prohibitions detailing 10 defects, of which only one was determined by the Vehicle Examiner to be indicative of a significant failure in the compliance arrangements, and the Traffic Commissioner correctly identified that this was a criticism of the driver checks that day and not the Appellant’s mechanics or Transport Manager (see pages 13 and 14).

Both Mr Din and Mr Saad (Transport Manager) were challenged on these prohibitions, and well as Mr Taylor the Engineer, all accepted that ultimately it was their collective responsibilities, however they each made the same valid points as regards the particular (Glastonbury) prohibitions, and this is supported by the point made at paragraph 17 above, namely the DVSA Vehicle Examiner was not critical of the Appellants’ systems as regards the specific defects. (See pages 3152 – 3257 (Mr Din) pages 3164 bottom – 3166 (Mr Saad) and 3178 – 3180 (Mr Taylor))

The Traffic Commissioner’s findings in relation to this were therefore simply not supported on the evidence before him:

Additionally, the Traffic Commissioner finds that the Appellants had not responded to the MIVRs. This is a factually incorrect finding, the responses are contained in the traffic Commissioner’s own bundle and appear in the Appeal bundle (see pages 142 (Rigbys) and 289 (Abbey)). This supports the evidence of Mr Din on this point when challenged by the deputy Traffic Commissioner (see page 315) particularly the middle paragraph where Mr Din explains correctly that Mr Saad responded.

Given this position there is simply no evidential basis to support the adverse findings on maintenance compliance, and consequential impact on repute.’

We accept most of the above criticisms of the DTC’s findings at [39] and reasons given for loss of repute at [41] of the decision. Mr Backhouse has identified a number of errors in the DTC’s findings and reasons as set out above. We are satisfied that cumulatively they demonstrate errors which make the revocation decision wrong on the basis of maintenance arrangements / loss of good repute.

However, we do not agree with all the criticisms of the DTC’s findings regarding the poor maintenance arrangements and record of the companies.

For instance, the DTC was plainly right to have very serious concern as to the MOT failure rate of Rigby’s and the failure to present for MOT in the case of Abbey.

The DTC rightly identified that the operators were ‘in the last chance saloon’ having been given a final warning as a result of the PI in 2021.

The DTC was entitled to find serious concern about the lack of involvement of TM Evans.

Although Mr Backhouse was right to identify errors in the way the DTC approached the MIVRs, the fact is that the operators failed on 1-3 categories of roadworthiness and these were the most serious categories. It is only at MOT or roadside encounters that the vehicles are inspected independently rather than the operator ‘marking their own homework’ such as in PMIs.

The DTC was also entitled to have real concern about the gravity of the four prohibitions notices (10 prohibitable defects, specific faults or defects, in 4 prohibition notices) (Footnote: ¹), resulting from the Glastonbury Festival inspections in June 2023. Even if the defects were caused by passengers during travel, could not have been identified by pre-inspection by the drivers and did not disclose a failure to maintain the vehicles by the operator prior to their journeys, they were still concerning as regards the roadworthiness of the vehicles and post-journey inspection regime of the drivers.

However, the DTC did not state that the Glastonbury prohibitions and MOT failures / absences were sufficient to find a loss of repute or breach of undertakings given by the operators. For that reason, we cannot find that it is inevitable that the DTC would have found a loss of repute on these bases alone.

Ground 2 succeeds and the revocation should be quashed on the basis that findings on maintenance arrangements, breach of undertaking and loss of repute were materially mistaken and wrong.

That is not to say that there are not real concerns regarding these issues as set out above. However, the issues should be remitted to a different TC to rehear and reconsider at a reconvened PI. The calling-in letter for that PI should again narrow the issues and determine with clarity what matters are relied upon in this regard. The maintenance, inspection and documentation of vehicles will form a central part of the issue of good repute on the remittal.

Again, there is merit in the Appellants’ challenge to the DTC’s findings on the companies’ structures and method of engagement for their drivers at [39] and [41]. This is for the reasons relied on by Mr Backhouse.

The Deputy Traffic Commissioner erred in determining that the operating entity was not the Appellants in each case (paragraph 39 final bullet point of the decision), and as such this went to the repute of the Appellants.

This ground is based on the fact that the drivers were engaged, normally through employment, by another associated company Coach Travel Solutions Ltd (“CLT”) (page 20 final bullet of paragraph 39).

The deputy Traffic Commissioner errs in only looking at part of the statutory test under Section 81(1) of the Public Passenger Vehicles Act 1981.

The full test in s81(1)(b)(ii) is set out in the decision: “(ii) in any other case, the person for whom the driver works (whether under a contract of employment or any other description of contract personally to do work).”

The second part underlined for ease of reference, requires the Traffic Commissioner to consider on the evidence before him who the ‘user’ is and therefore who requires the operator’s licence.

On the evidence before him it is clear that the drivers were supplied to the operating companies by CLT, and this is perfectly lawful provided the drivers understood they were contractually bound to work for the Appellant company.

This issue was not raised in the Calling In letter but, even so, this has been the situation over a long number of years (see page 3127) based on an established previous course of dealings, the drivers would be personally contractually bound to work for the Appellant companies.

The provision in s81(1)(b)(ii) also supports the lawful use of self-employed drivers. The deputy Traffic Commissioner’s findings of illegality on this point that the Appellants ‘admission’ of sies of self-employed drivers is anti-competitive and unlawful (page 19 fifth bullet point) is simply far too simplistic a stance on the facts as presented here.’

Again, the DTC had insufficient evidence before him and gave insufficient reasons for the findings that there was something unlawful or worthy of a loss of repute in the driver engagement or in the co-mingled, or unclear company structures.

Section 81(1)(b)(ii) of the Act does not necessarily prohibit the use of self-employed drivers being engaged by an operator, albeit that this is harder to regulate and one would expect formal or written documentation that record the legal nature of the driver engagement. Of course, a lack of clarity or care taken in respect of the nature of driver engagement (whether employed, self-employed or otherwise) may reveal something about the repute of a company.

As for the findings that the operating entities were not the Appellants, this appears insufficiently reasoned and without evidential support. It also appears to be founded on the same mistake of law.

Likewise, the company structures and co-mingled use of companies may reveal something going to statutory compliance, financial standing or repute but the evidential position would need full investigation. The DTC was entitled to have concern as expressed:

The DTC was entitled to be able to see a clear model, with transparent paperwork, as to: how each company was operated and run; drivers engaged; and finances allocated. The DTC was entitled to have concern as to whether the Appellants were exercising continuous effective control of vehicles and drivers and whether there was supervision, control and compliance of vehicles and drivers. If borrowing, exchanging or swapping drivers and vehicles was occurring between companies this would need a lawful basis and the transparent and formal documenting of the same.

However, (as Ground 4 addresses) – if the DTC had such concerns, then these needed to be identified in the calling-in letter in advance and procedural fairness would require a full evidential investigation and the Appellants being on notice of the specific issues they needed to address.

Ground 3 succeeds and the decision of the DTC that the Appellants were not the operators is quashed. The issues identified under this ground should be addressed in the calling-in letter, the Appellants required to provide relevant documentation identifying how the relevant and related companies are organised operationally and the drivers engaged so that a full evidential investigation can take place at the remitted PI.

We also agree with Mr Backhouse’s fourth ground of appeal. For the reasons he submits, we are satisfied that the DTC’s decision was based materially on grounds which were not identified in advance to the Appellants. Thus the decision is undermined by procedural unfairness. We are satisfied the decision was wrong for the same reasons:

The final ground is that the Deputy Traffic Commissioner’s decision was procedurally flawed, in that, for the reasons set out in various grounds above (so not repeated here), the Deputy Traffic Commissioner made a significant part of his adverse determinations against both Appellants on issues which were not identified as an issue at all within the calling in letters and documentation. This is a fundamental procedural flaw and particularly significant when the Appellants, as here, were not represented.

Finally, the deputy Traffic Commissioner in large measure relies on the company structure and the driver employment arrangements to establish his adverse view of the Appellants’ (see pages 19 & 20).

It is established law in this jurisdiction that an operator is entitled to proper notice of the issues to be considered at a Public Inquiry and here there was no notice at all. The failure to so provide here is plainly procedurally unfair.

If as appears possible issue such as these are to be central the Appellants (who were representing themselves) should have been given (or at the minimum offered) and adjournment, a letter setting out the allegations, law and evidence relied upon by the Traffic Commissioner. Had this happened the points made in relation to ground three would have been made on their behalf.

In addition, if there was some regularisation to be made by the appellants this could have been in train before the hearing addressing the issues themselves.’

Mr Backhouse conceded, on our questioning during the hearing, that the consequence of each of his grounds of appeal, including that on procedural unfairness, should be that the matter be remitted for a fresh hearing of the PI at which these issues can be highlighted in advance and addressed. He was right to make that concession for the reasons we have explained above.

We are satisfied that the TC’s revocation decisions have been demonstrated to be wrong based on all four grounds of appeal.

Accordingly, the appeal is allowed. The revocation decisions are quashed. The matter is remitted to a different Traffic Commissioner to rehear and determine after issuing clear calling in letters and holding a reconvened Public Inquiry in accordance with the Tribunal’s directions.

On 9 October 2023, the UT granted the Appellants a stay of the revocation decisions pending appeal. That stay must be continued until the outcome of the further PI and the fresh decisions of the TC on whether to revoke the licences / grant the variation applications.