HRA Builders Merchants Ltd

Where an administrative error prevents a party’s postponement request from reaching the decision-maker, the resulting procedural irregularity may require the decision to be set aside. The appellate tribunal should ask whether the decision would inevitably have been the same if the request had been considered and the party had been heard. If postponement would not inevitably have been refused, or the substantive outcome would not inevitably have been unchanged, the irregularity is material. The appropriate remedy may be remission for a fresh hearing before a different decision-maker.

The appellant’s operator’s licence was revoked and the company and its directors were disqualified by a Traffic Commissioner following a public inquiry. The directors were absent because they were abroad, having sent an email requesting postponement. The Office of the Traffic Commissioner accidentally deleted the email, so the Traffic Commissioner proceeded on the basis that their absence was unexplained.

The appellant appealed, arguing that the failure to consider the postponement request denied it a fair opportunity to participate. The central issue was whether the administrative error was material to the decisions.

1. The appeal was allowed. The Traffic Commissioner’s decision of 9 December 2021 was set aside and the matter was remitted to a different Traffic Commissioner for reconsideration, ordinarily by way of a public inquiry.
2. Under section 37 of the Goods Vehicles (Licensing of Operators) Act 1995, the appellant had a right of appeal. The Upper Tribunal’s appellate jurisdiction under paragraph 17 of the Transport Act 1985 extended to matters of law and fact, subject to the principles explained in Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695.
3. The accidental deletion of the postponement email meant that the Traffic Commissioner proceeded in ignorance of a potentially relevant request and of the directors’ circumstances. The Upper Tribunal had to determine whether the irregularity was necessarily immaterial.
4. It could not be said that postponement would inevitably have been refused. Further information might have been sought about the pre-arranged travel and the family wedding, and the directors’ willingness to attend later.
5. Nor could it be said that the outcome would inevitably have been the same had the directors attended a public inquiry. Although there was evidence of serious regulatory concerns and breached undertakings, the possibility of a different decision could not be excluded.

• Traffic Commissioner for the West Midlands Traffic Area: revoked the operator’s licence and disqualified the company and its directors on 9 December 2021.
• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the decision and remitted the case for re-determination by a different Traffic Commissioner.