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

An appellate tribunal's statutory power to remit a matter for rehearing may permit a full rehearing or a rehearing confined to identified issues. It may also direct a rehearing before the same or a different decision-maker.

A different decision-maker is required only where the circumstances make that course necessary and appropriate. Relevant circumstances include bias, an expressed view from which the decision-maker could not fairly depart, or a fundamentally flawed earlier decision. Limited criticism of an insufficiently analytical approach does not itself require recusal.

Where a rehearing is properly a resumption of an advertised inquiry and is confined to the remitted issues, Public Passenger Vehicle Act 1981 section 54 does not require fresh public advertisement.

The appellant operated registered bus services under a public service vehicle operator's licence. Following a public inquiry, the Traffic Commissioner found substantial service irregularities and imposed sanctions. On the first appeal, the Transport Tribunal allowed the appeal, requiring the financial penalty to be quantified and remitting the matter for analysis of the irregularities and the reasons advanced to excuse them.

The same Commissioner reconvened the inquiry, reconsidered the limited issues and adjusted the penalties. The appellant's further appeal to the Transport Tribunal failed. She then appealed to the Court of Appeal, contending that the remittal required a complete hearing de novo before another Commissioner and that the resumed hearing required fresh public advertisement.

1. Appeal dismissed unanimously. Lady Justice Smith delivered the principal judgment, with Lord Justice Jacob agreeing. Lord Justice Judge also agreed and gave additional reasons on the statutory remittal power.

2. Paragraph 9 of Schedule 4 to the Transport Act 1985 conferred a wide power on the Transport Tribunal. Properly construed, it permitted a remission for complete reconsideration or for limited identified purposes. It also permitted the Tribunal to direct a hearing before the same Commissioner or another Commissioner. The appellant's concession that the Tribunal possessed that power was rightly made.

3. The first Tribunal had intended a limited resumption before the same Commissioner. Its order did not direct a different Commissioner, although the Tribunal's usual practice was to say so expressly where that was intended. Its subsequent clarification was consistent with that conclusion.

4. A fresh decision-maker is necessary only where the circumstances require it, such as bias, a concluded view from which the original decision-maker cannot fairly depart, or a fundamentally flawed decision. The earlier criticism was limited: the Commissioner had used too broad an analytical approach to the evidence on reasonable excuse. It did not impugn his fairness or establish fundamental flaw. He was therefore entitled to conduct the resumed hearing. The appellant's refusal to assist him in relating particular excuses to particular irregularities also explained why detailed analysis remained difficult.

5. The resumed hearing was properly a continuation of the original inquiry and was confined to the remitted issues. It therefore required no further advertisement under section 54 of the Public Passenger Vehicle Act 1981.

• Court of Appeal (Civil Division): dismissed the appellant's appeal from the Transport Tribunal.

• Transport Tribunal: on 27 April 2004, dismissed the appellant's appeal from the Commissioner's resumed hearing.

• Traffic Commissioner for the Welsh Traffic Area: in May 2003, reconvened the inquiry on the limited matters remitted and reconsidered the irregularities, excuses and penalty.

• Transport Tribunal: on 29 November 2002, allowed the first appeal, required precise quantification of the penalty and remitted the matter for further consideration.

• Traffic Commissioner for the Welsh Traffic Area: on 19 June 2002, found failures to operate registered services without reasonable excuse and imposed sanctions.