Catch22bus Ltd & Anor v The Secretary of State for Transport

In deciding whether an operator is of good repute, a traffic commissioner must consider all relevant evidence. Conduct need not be unlawful, nor directly connected with road transport. Relevance is a threshold issue and is both context-specific and fact-specific. Its weight is for the commissioner, subject to ordinary public law constraints.

The assessment is prospective. The commissioner asks how likely the operator is to comply with the licensing regime in future and whether the conduct is sufficiently serious and proportionate to require the operator to be put out of business. Conduct directed at a decision-maker because of an adverse regulatory decision may be relevant where it demonstrates hostility to the regulatory system, lack of trustworthiness, or unwillingness to use legitimate routes of redress.

Catch22bus Limited and Philip Higgs appealed to the Court of Appeal from the Upper Tribunal (Administrative Appeals Chamber), which had dismissed their appeal against a deputy traffic commissioner’s decision. The deputy commissioner had found that Mr Higgs’s covert surveillance and publication of a video targeting the Senior Traffic Commissioner caused the company to lose good repute.

The company’s PSV operator’s licence was revoked under section 17(1) of the Public Passenger Vehicles Act 1981, and Mr Higgs was disqualified under section 28(1) of the Transport Act 1985. The central issue was whether the conduct was relevant to good repute and fitness to hold a licence, and whether the resulting evaluative conclusions were irrational or disproportionate.

1. Appeal dismissed. The Court of Appeal’s jurisdiction was confined to a point of law arising from the Upper Tribunal’s decision. Appeals from a specialist tribunal require an appropriate degree of caution. The factual findings were not challenged.
2. Under paragraph 1 of Schedule 3 to the Public Passenger Vehicles Act 1981, the traffic commissioner must have regard to all relevant evidence. Conduct does not have to be unlawful to be relevant. Relevance is a threshold question, while weight and significance remain matters for the commissioner. The inquiry is concrete, context-specific and fact-specific. The conduct need not be directly connected with road transport, but there must be some connection with fitness to hold the licence. Trust between operators and traffic commissioners is an important aspect of that connection.
3. The ultimate assessment is prospective: how likely is the operator to comply with the licensing regime in future? The commissioner must also ask whether the conduct is sufficiently serious to require revocation, including whether putting the operator out of business is proportionate. These were the questions identified in Priority Freight Ltd & Paul Williams 2009/225 and Bryan Haulage (No 2) 2002/217.
4. The deputy commissioner was entitled to treat Mr Higgs’s conduct as relevant. The surveillance and publication campaign was directed at the Senior Traffic Commissioner because of her regulatory function. The findings that it was intrusive, distressing, intimidating, malicious, carried out under a false identity, and accompanied by a lack of remorse or insight were capable of demonstrating animosity towards the regulatory system, a tendency to take the law into his own hands, and a lack of assurance of future compliance.
5. The Upper Tribunal was entitled to conclude that the conduct was a direct attack on the essence of an independent adjudicatory process and went directly to the expectation of trust underlying operator licensing. The finding that the company had lost good repute, the revocation of its licence, and Mr Higgs’s 12-month disqualification were not irrational. The disclosure application was refused because the report had no relevance to the appeal. The court directed that documents relating to that issue should not be publicly disclosed under CPR 5.4C(2).

• Court of Appeal (Civil Division) — The appeal was dismissed. The court upheld the Upper Tribunal’s decision confirming the deputy traffic commissioner’s revocation and disqualification orders: [2019] EWCA Civ 1022.
• Upper Tribunal (Administrative Appeals Chamber) — The appeal from the deputy traffic commissioner was dismissed on 4 December 2017. The Upper Tribunal confirmed the decision that the company had lost good repute and that Mr Higgs should be disqualified.
• Deputy traffic commissioner — Following a rehearing ordered by consent, the company’s PSV operator’s licence was revoked under section 17(1) of the Public Passenger Vehicles Act 1981, and Mr Higgs was disqualified for 12 months under section 28(1) of the Transport Act 1985.