Central Haulage Limited & Ors

In an appeal from a traffic commissioner, the Upper Tribunal will not rehear the evidence. The appellant must show objective grounds requiring the decision to be regarded as wrong.

Previous involvement by the same adjudicator does not, without more, establish apparent bias. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Witness access to statements and documents does not itself make an inquisitorial public inquiry unfair, provided there is no coaching and the opposing parties can challenge the evidence.

A traffic commissioner may consider conduct before a transport manager’s formal appointment when assessing good repute. A transport manager who knows that a disqualified operator is involved in a fronting arrangement must decline or withdraw from the role. Loss of good repute makes disqualification mandatory.

The appellants appealed against a decision of the Deputy Traffic Commissioner for the Scottish Traffic Area dated 24 April 2023. The operator’s licence had been revoked for loss of good repute. The operator company, its named director, its de facto director and its transport manager had each been disqualified for 12 months.

The first three appellants alleged apparent bias because the Deputy Traffic Commissioner had conducted an earlier public inquiry involving substantially similar issues and witnesses. They also challenged the provision of inquiry materials to James Strathearn and Hana Simpson, who gave evidence as witnesses. The transport manager challenged the findings that he had been involved in the fronting arrangement, had lost good repute and had been proportionately disqualified.

The central issues were whether the proceedings were unfair, whether the findings were plainly wrong, and whether the statutory consequences followed.

1. Outcome. The appeals were dismissed. The Deputy Traffic Commissioner’s decision was confirmed in all respects. The revocation and disqualifications were directed to take effect at 23.59 on 6 March 2024.
2. Appellate approach. Applying Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695, the Upper Tribunal was not conducting a rehearing. The appellants had to show objective grounds demonstrating that the decision was wrong, rather than merely that another view was possible.
3. Apparent bias. The test was whether a fair-minded and informed observer, considering all relevant circumstances, would conclude that there was a real possibility of bias. The Deputy Traffic Commissioner was a professional adjudicator presumed to approach the second inquiry with an open mind. His earlier findings had accepted the first three appellants’ evidence and were not hostile or extreme. The second inquiry involved materially different evidence, including evidence from Hana Simpson, and produced a different conclusion. There was therefore no real possibility of apparent or confirmation bias.
4. Witness materials and fairness. The provision of statements and documents to witnesses did not itself breach natural justice or article 6(1) of the ECHR. What was prohibited was coaching intended to influence or alter evidence. The appellants knew of the witnesses’ access to the materials, had opportunities to cross-examine them and could invite the Deputy Traffic Commissioner to reject their evidence as tailored. No unfairness was established.
5. Transport manager and good repute. The civil standard remained the balance of probabilities. Cogent and cohesive evidence could establish serious misconduct on that standard. In assessing a transport manager’s good repute, the traffic commissioner could take account of conduct before formal appointment where it demonstrated deceit or untrustworthiness. Once the transport manager’s role coincided with knowledge that a disqualified operator was involved in management, he had a duty not to become involved or to withdraw. Continuing in post facilitated the fronting operation.
6. Fronting was a form of deceit undermining the trust and fair competition underpinning operator licensing. The finding that the transport manager had lost good repute was not disproportionate. Disqualification under paragraph 16(2) of Schedule 3 to the Goods Vehicles (Licensing of Operators) Act 1995 was mandatory, and the 12-month period was proportionate.

• Upper Tribunal (Administrative Appeals Chamber): appeals against the Deputy Traffic Commissioner’s decision dated 24 April 2023 dismissed; decision confirmed in all respects.