In the Matter of James Kilpatrick

On an appeal from a traffic commissioner, the appellant must show objectively that the decision was wrong. It is insufficient that the Upper Tribunal might have reached a different view.

In deciding whether an applicant is of good repute under Public Passenger Vehicles Act 1981, the traffic commissioner must consider all relevant evidence, including the applicant’s regulatory history and recent conduct. The central question is whether the applicant can be trusted to operate compliantly in the future. Findings on credibility and primary fact are entitled to substantial weight on appeal. A decision founded on reliable evidence of dishonest self-certification in a trust-based regulatory scheme will not be disturbed merely because the applicant advances a different account.

The appellant applied for a standard international public service vehicle operator’s licence, naming himself as transport manager. The Traffic Commissioner for the Scottish Traffic Area refused the application on 22 December 2021 after finding that he lacked good repute under Public Passenger Vehicles Act 1981, section 14 ZA(2)(b).

The Commissioner relied on the appellant’s previous operator-licensing history and on findings that he had made a Bounce Back Loan Scheme application for a business which had not existed on 1 March 2020. The appellant appealed. He challenged the absence of a hearing transcript, the Commissioner’s understanding of the loan scheme, the weight given to his past history, and the refusal to reconvene the public inquiry.

The central issue was whether those complaints showed that the Commissioner’s findings or conclusion on good repute were plainly wrong.

1. Appeal dismissed. The Tribunal upheld the Traffic Commissioner’s decision that the appellant did not satisfy the good-repute requirement in section 14 ZA(2)(b) of the Public Passenger Vehicles Act 1981.

2. The Upper Tribunal’s task was not to conduct a fresh first-instance hearing. The appellant bore the burden of demonstrating objective grounds on which the Commissioner’s different conclusion was the right one. A mere preference for another view was insufficient: Bradley Fold Travel Ltd & Peter Wright –v- Secretary of State for Transport [2010] EWCA Civ. 695; Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI NT/2013/52 & 53.

3. The lack of a transcript did not establish error. Decision-makers may decide cases from their notes, memory and the documents. The appellant identified no factual inaccuracy attributable to the missing recording.

4. The Commissioner correctly construed the evidence about the Bounce Back Loan Scheme. The application documentation required a business to have existed on 1 March 2020 and to have been adversely affected by Covid restrictions. The appellant accepted that J Kilpatrick Coach Hire had not existed then. The later bank email did not establish either eligibility or an honest application, because it proceeded on the information in the form.

5. Good repute required consideration of all relevant evidence, including prior regulatory history and recent conduct. The proper practical inquiry was whether the applicant could be trusted to comply with the licensing regime in future. The Commissioner was entitled to regard the false self-certification in a trust-based scheme as highly relevant, and to find that it was consistent with the appellant’s earlier conduct.

6. The Commissioner’s assessment that the appellant was an unreliable and unconvincing witness was entitled to great weight. The Tribunal found no basis for treating her findings of fact or reasoning as unsound. She had also allowed further time for evidence about the loan, so there was no reason to recall the public inquiry. The refusal of the licence therefore stood.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the Traffic Commissioner’s refusal of a standard international public service vehicle operator’s licence.
• Traffic Commissioner for the Scottish Traffic Area: on 22 December 2021 refused the application after finding that the applicant lacked good repute under section 14 ZA(2)(b) of the Public Passenger Vehicles Act 1981.