Ribble Motor Services Limited v Traffic Commission for the North Western Traffic Area

A traffic commissioner may assess a bus operator’s timetable compliance globally, rather than service by service, where the monitored journeys form a sufficient and representative sample of the operation. That assessment is ordinarily one of fact and degree.

For Transport Act 1985 section 111, the question is whether there is a reasonable excuse for the operator’s overall multiple failures. Routine operational difficulties may be allowed for through a realistic tolerance window and permitted failure rate. They need not be individually investigated, although genuinely extraordinary events must be considered. Under section 26, frequent non-compliance may itself make a licence condition appropriate.

In the absence of persuasive research, a commissioner may use specialist experience and relevant industry information to adopt a reliability benchmark. The operator bears the burden of establishing a reasonable excuse.

The appellant operated registered local bus services in the North West. A five-day monitoring exercise found that 164 of 1,283 monitored journeys did not run or were at least six minutes late. The Deputy Traffic Commissioner attached a condition under section 26 of the Transport Act 1985 preventing new local-service registrations and made a section 111 determination requiring repayment of approximately £120,000 in fuel-duty rebate.

The Transport Tribunal dismissed the operator’s appeal. The operator then appealed on points of law, challenging the use of journey-level and global sampling, the approach to reasonable excuse and its burden of proof, the 95% reliability benchmark, and the comparison of monitored failures with the monitored sample rather than all operations.

1. Appeal dismissed unanimously. Lord Justice Simon Brown gave the principal judgment. Lord Justice Longmore agreed, and the Master of the Rolls agreed with the reasons and added observations on the global assessment issue.
2. A local service comprises individual journeys. Section 26(1)(b) of the Transport Act 1985 is engaged by a single departure from the registered timetable. The Commissioner could assess performance globally rather than service by service, provided that the monitored journeys were a sufficient and representative sample. That was a factual assessment for the Commissioner and could not be reopened on an appeal limited to law.
3. The Commissioner had not ignored routine explanations for late or missing services. Under section 111, the statutory reference to a reasonable excuse in the singular permits a broad assessment of whether there is a reasonable excuse for the overall failures. Routine operational events may, collectively, be accommodated by a realistic tolerance window and an accepted failure rate. Genuinely extraordinary events must still be excluded. Under section 26, the Commissioner did not need to determine reasonable excuse because the frequency of failures itself made action appropriate.
4. The operator bore the burden of proving a reasonable excuse. The relevant facts were peculiarly within its knowledge, an excuse is an exception which the party relying on it normally establishes on the balance of probabilities, and the Commissioner’s jurisdiction is inquisitorial.
5. In the absence of persuasive research, it was lawful for a specialist commissioner to adopt a 95% benchmark using regulatory experience, previous decisions and information acquired in other inquiries. The operator had sufficient notice of the monitoring results and could choose what evidence to adduce. Later research might require a more sophisticated comparison, but did not invalidate this decision.

The Court made no order as to costs and refused leave to appeal to the House of Lords.

• Court of Appeal (Civil Division): dismissed the operator’s appeal on points of law: [2001] EWCA Civ 267.
• Transport Tribunal: on 11 December 1999, dismissed the operator’s appeal from the Deputy Traffic Commissioner.
• Deputy Traffic Commissioner for the North West Traffic Area: imposed a condition under section 26 and made a section 111 fuel-duty-rebate determination under the Transport Act 1985.