Walsall Builders and Timber Merchants Ltd and Anor

An adjournment or postponement request made before a regulatory hearing must be considered promptly and the decision communicated where there is sufficient time to do so. Fairness requires this even where the request appears weak and the applicant has contributed to the difficulty. A failure to follow case-management guidance does not automatically invalidate proceedings, but it may cause material unfairness where timely notification could have enabled a renewed application or other meaningful response. The appellate tribunal must assess whether the unfairness could have affected the outcome.

A Traffic Commissioner revoked a restricted goods vehicle operator licence and disqualified the operator and its director for two years following serious vehicle-maintenance, tachograph, drivers’ hours and financial-standing concerns. The public inquiry proceeded in their absence after the director emailed shortly beforehand saying that he was unwell and would attend the next hearing. No postponement decision was communicated before the inquiry.

The appeal challenged the fairness of proceeding in those circumstances. The appellants also sought to adduce a later GP letter. The central issues were whether the fresh evidence should be admitted and whether the failure to determine and communicate the postponement request caused material unfairness.

1. Appeal allowed and case remitted. The Upper Tribunal set aside the Traffic Commissioner’s decision and remitted the case for reconsideration at a public inquiry.

2. Under section 37 of the Goods Vehicles (Licencing of Operators) Act 1995, the Upper Tribunal hears questions of law and fact but does not conduct a new first-instance hearing. Applying Bradley Fold Travel Ltd and Another v Secretary of State for Transport [2010] EWCA Civ 695, an appellant must show that the reasoning process or application of law requires a different view. The Tribunal may remit under paragraph 17 of Schedule 4 to the Transport Act 1985.

3. The later GP letter was inadmissible. The principles in Ladd v Marshall (1954) 1 WLR 1489, applied in traffic cases in Thames Materials Ltd (2002/40) and confirmed as fully applicable in W Martin Oliver Partnership [2016] UKUT 0070 (AAC), required the evidence to be admissible, unavailable with reasonable diligence, potentially influential on the result, and apparently credible. The appellants had made no attempt to obtain medical evidence before the inquiry.

4. The Traffic Commissioner was not required to postpone the inquiry merely because the director said that he felt unfit to attend. Relevant circumstances included the absence of medical evidence, the lateness of the request, the failure to provide required documents, and the appellants’ previous engagement with the regulatory process.

5. Nevertheless, the postponement request had been received in sufficient time for a decision to be made and communicated before the inquiry. The applicable statutory guidance required a decision on an adjournment request and communication of that decision. More fundamentally, fairness required notification. The director might then have attended, renewed the request with fuller reasons or evidence, or obtained urgent legal advice.

6. The unfairness was material. Although the operator’s failings were substantial and the issue was marginal, the Tribunal could not conclude that a renewed application would inevitably have failed or that the outcome would inevitably have been the same. G DEM Ltd 2005/110 provided a relevant comparison. The case was therefore remitted for a fresh public inquiry.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the Traffic Commissioner’s decision was set aside and the case remitted for reconsideration at a public inquiry.
• Traffic Commissioner for the West Midlands: on 17 March 2022, revoked the operator licence and imposed two-year disqualifications on the operator and its director.