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

An appeal from the Transport Tribunal lies to the Court of Appeal on a point of law only. No permission to appeal is required where the statutory scheme contains no such requirement and the Civil Procedure Rules do not impose one. A complaint that the decision-maker gave insufficient weight to evidence raises no error of law, absent perversity. Proportionality is ordinarily a matter for the decision-maker’s evaluative judgment; appellate intervention is justified only where the wrong legal approach was adopted or the conclusion was perverse. A procedural objection not taken before the tribunal will rarely establish an error of law, save possibly in the case of an extreme and glaring irregularity. A Traffic Commissioner may take account of a licence-holder’s refusal to give a clear undertaking to appoint a replacement transport manager without reopening the inquiry.

The appellant operated 15 buses under a PSV operator’s licence granted under the Public Passenger Vehicles Act 1981. The Traffic Commissioner revoked the licence under section 17 of that Act and disqualified the appellant from holding a licence for two years, following continuing serious maintenance deficiencies and the appellant’s refusal to undertake to appoint another transport manager in his place.

The Transport Tribunal dismissed the statutory appeal on fact, law and discretion. The appellant appealed to the Court of Appeal, whose jurisdiction was confined by Schedule 4 paragraph 14(2) of the Transport Act 1985 to questions of law. The central issues were whether permission was required, whether the Commissioner and tribunal had erred on weight and proportionality, and whether the procedure concerning the undertaking was unfair.

1. Appeal dismissed. The appeal was confined to points of law. Under Schedule 4 paragraph 14(2) of the Transport Act 1985, no appeal lay on a question of fact. Applying Colley v the Council for Licensed Conveyancers [2001] EWCA Civ 1137 and Alison Jones t/a Shamrock Coaches v Dept of Transport Welsh Traffic Office [2005] EWCA Civ 58, no permission to appeal was required for a statutory appeal from the Transport Tribunal.
2. The complaint that insufficient weight was given to later improvements in vehicle maintenance disclosed no error of law. Once the Commissioner had taken those improvements into account, the weight assigned to them was for him and the tribunal, subject only to perversity.
3. Proportionality did not ordinarily raise a question of law. The decision-maker had to balance the relevant considerations. An error of law would arise only if the wrong legal approach had been adopted or the result was perverse in the true Wednesbury sense. The safety of the travelling public was a matter of great importance and justified substantial weight. The revocation and disqualification were plainly within the legitimate options available and were not perverse. The specialist nature of the Transport Tribunal reinforced the court’s reluctance to interfere with its assessment of the merits. Mukarkar v SSHD [2006] EWCA Civ 1045, paragraph 11, was cited in this context.
4. The procedural fairness argument had not been raised before the Transport Tribunal. Since the tribunal had not been asked to decide the issue, it could not ordinarily be said to have erred in law in failing to do so.
5. The court left open the possibility that an extreme and glaring procedural irregularity might require an appellate tribunal to intervene of its own motion, but this case fell far short of that threshold.
6. In any event, the proposed undertaking was clear. It required the appellant to appoint a new transport manager in place of himself. The appellant’s response demonstrated that he understood the distinction between replacement and joint appointment. The Commissioner was entitled to treat the refusal as significant. He was not required to reopen the inquiry or negotiate with the appellant, particularly as clarification could have been sought and was not. The appeal was dismissed, but the effect of dismissal was postponed for eight weeks.

• Court of Appeal (Civil Division): [2008] EWCA Civ 188. Appeal from the Transport Tribunal dismissed. The dismissal and consequent revocation and disqualification were postponed for eight weeks.
• Transport Tribunal: Statutory appeal dismissed on 20 April 2007. The tribunal upheld the Traffic Commissioner’s revocation of the PSV operator’s licence and two-year disqualification, with the dismissal originally taking effect from 1 June 2007.
• Traffic Commissioner for the West Midlands: Licence revoked under section 17 of the Public Passenger Vehicles Act 1981 and the appellant disqualified for two years following the September 2006 inquiry.