Al-Le Logistics Ltd & Ors, R (on the application of)

Judicial review is ordinarily inappropriate where a specialist statutory appeal provides a full review on fact and law. Complaints about evidence, disclosure, procedural fairness and the merits of operator licensing should normally be raised before the Traffic Commissioner and, if necessary, the Upper Tribunal. Judicial review remains available exceptionally where the challenge concerns apparent bias or another fundamental public-law defect which the statutory route cannot suitably determine. A decision-maker who has made robust adverse findings, committed serious procedural and legal errors, and then decides whether related proceedings should continue may give rise to a real possibility of apparent bias.

The claim arose from the revocation of an operator’s licence and related findings against persons connected with the operator after a fatal road accident and convictions of drivers for tachograph offences. The Transport Tribunal allowed the claimants’ appeal, quashed the earlier decisions and remitted the matter for consideration of a rehearing. The Senior Traffic Commissioner then decided that a further public inquiry should be held, although the inquiry itself was to be conducted by a different Commissioner.

The claimants sought judicial review of that decision and also raised challenges concerning disclosure, burden of proof, abuse of process, bias and the conduct of a separate inquiry by the North Western Traffic Commissioner. The central issues were whether the statutory appeal route was an adequate alternative remedy and whether the Senior Traffic Commissioner could lawfully decide that the proceedings should continue after recusing himself from the rehearing.

1. Alternative remedy. The statutory appeal to the Transport Tribunal, now the Upper Tribunal, was a full appeal on fact and law. Following R v Birmingham City Council ex parte Ferrero Ltd and R v Falmouth and Truro Port Health Authority ex parte South West Water Ltd, judicial review should ordinarily be refused where complaints can be dealt with through that specialist process. The principle applied especially strongly in a public-safety licensing regime. Complaints about disclosure, the adequacy of VOSA’s evidence, alleged abuse of process, burden of proof and the merits of the proposed proceedings were therefore unarguable or unsuitable for judicial review.
2. Apparent bias. The applicable test was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias: Porter v McGill. The mere fact that a decision-maker had previously determined an issue or made adverse findings was insufficient. However, the Senior Traffic Commissioner had made strong credibility findings, committed serious procedural and legal errors, failed to recognise the defective formulation of VOSA’s case, and was required to assess a revised and stale evidential case with caution.
3. The decision whether proceedings under sections 26 to 28 of the Goods Vehicles (Licensing of Operators) Act 1995 should continue was closely connected with the decision who should conduct the rehearing. Having accepted that natural justice required the rehearing to be conducted by another Commissioner, the Senior Traffic Commissioner should also have recused himself from deciding whether the proceedings should continue. The circumstances established apparent bias.
4. The alternative remedy was inadequate for this discrete issue. It would have required the specialist tribunal to determine the merits before any effective appeal, and the High Court could resolve the apparent-bias issue without substantial fact-finding. The decision was quashed. The challenges to the North Western Traffic Commissioner and the damages claim were refused.

The judgment states that the Transport Tribunal allowed the claimants’ earlier appeal on 3 November 2008 and remitted the matter for consideration of a rehearing. The present High Court proceedings challenged the subsequent decision to continue the proceedings and call a further public inquiry.