ADA Haulage Ltd

An appellate tribunal may proceed in an appellant’s absence where written notice of the hearing has been given and it is in the interests of justice to do so. It may refuse an adjournment after balancing fairness, the opportunity already afforded to participate, the nature of the appeal and delay.

On an appeal from a traffic commissioner, the appellant must show objective grounds that the decision was wrong. It is insufficient that another view of the facts was reasonably possible. Revocation of an operator’s licence must be proportionate. The commissioner must assess future compliance before deciding whether the conduct is such that the operator ought to be put out of business.

ADA Haulage Ltd appealed against the Deputy Traffic Commissioner’s decision of 10 August 2021 to revoke its operator’s licence. The decision followed a remote public inquiry and relied on multiple statutory grounds, including use of an unauthorised operating centre, maintenance and roadworthiness failures, breach of licence conditions and undertakings, and changes relevant to the licence.

The appellant did not attend the Upper Tribunal hearing and sought an adjournment after being contacted by the Tribunal. The Tribunal proceeded in its absence. The central issues were whether that course was fair, and whether the Deputy Traffic Commissioner’s findings, proportionality assessment and answers to the Priority Freight and Bryan Haulage questions were wrong.

1. Appeal dismissed. The Tribunal was not satisfied that the Deputy Traffic Commissioner’s revocation decision was wrong. The revocation had already taken effect and no further order was required.

2. The Tribunal could proceed in the appellant’s absence under Rule 38. The appellant had twice received written notification of the correct hearing details, had a reasonable opportunity to make written and oral representations, and had failed to attend. It was also fair to refuse an adjournment under Rule 5(3) and the overriding objective in Rule 2. The appeal was substantially one of law and did not require live oral evidence.

3. Under paragraph 17 of Schedule 4 to the Transport Act 1985, the Tribunal had full jurisdiction on fact and law. However, following Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695 and Subesh and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, the appellant had to demonstrate objective grounds requiring a different conclusion, rather than merely show that a different factual view was possible.

4. The Deputy Traffic Commissioner’s serious factual findings were reasonably open on the evidence, were adequately reasoned, and involved no legal or factual error. The Tribunal rejected the limited challenge to those findings.

5. The Deputy Traffic Commissioner had properly applied the proportionality approach in Bryan Haulage (No.2) and the preliminary future-compliance inquiry in Priority Freight. He considered the improvements claimed by the appellant but was entitled to find that they did not outweigh the repeated serious breaches, operation despite an immediate prohibition, road-safety risks, and lack of reliable evidence of future compliance. Revocation was proportionate.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal against revocation of the operator’s licence: [2023] UKUT 43 (AAC).
• Deputy Traffic Commissioner for the East of England Traffic Area: revoked the appellant’s operator’s licence on 10 August 2021, with effect from 10 September 2021.