Babrah Kufandirori and Anor, Re

A public inquiry must disclose all material evidence which the decision-maker may reasonably consider relevant and provide a fair opportunity to prepare and respond. Non-disclosure is materially unfair where the undisclosed evidence could affect factual findings or the exercise of a statutory discretion. An appellate tribunal may set aside the decision and remit the matter for rehearing where the original decision is materially tainted by procedural unfairness. A discretionary power to revoke a licence must be exercised after taking relevant considerations into account.

Excell Logistics Ltd held an operator’s licence and Miss Kufandirori was its sole director. Following a public inquiry, the Traffic Commissioner revoked the licence and disqualified both appellants for 12 months. The appellants appealed to the Upper Tribunal, alleging procedural unfairness and errors in the assessment of evidence.

Before the public inquiry, the Traffic Commissioner had received two detailed letters from the transport manager alleging deficiencies in Miss Kufandirori’s competence, honesty and compliance. The letters were not disclosed to her and were not included in the inquiry bundle. The central issue was whether the failure to disclose their substance denied her a fair opportunity to prepare and respond, and whether that unfairness materially affected the decision.

1. The appeal was allowed. The Traffic Commissioner’s decision of 17 January 2024 was set aside, and the issues of revocation and disqualification were remitted to a different Traffic Commissioner for rehearing at a public inquiry.
2. The fairness principle stated in OC International Transport Ltd v Dept of Environment Northern Ireland [2014] UKUT 0346 (AAC) applied. An operator called to a public inquiry should, so far as reasonably possible, be told about all material evidence which the decision-maker may reasonably consider relevant and given an appropriate opportunity to consider, prepare and present a response.
3. Miss Kufandirori had not been fairly informed of the contents of the transport manager’s letters. Their detailed allegations concerning her competence, resistance to advice and dishonesty could not reasonably have been anticipated merely from the fact that the inquiry concerned good repute. She was therefore denied a fair opportunity to gather evidence and prepare cross-examination.
4. The unfairness was material. The Traffic Commissioner relied materially on the letters when assessing competence, honesty, deliberate infringement and repute. It was not clear that the same conclusions would have been reached without them.
5. The non-disclosure also affected the decision under s26(1)(f) of the Goods Vehicles (Licensing of Operators) Act 1995. Although the breach of the undertaking not to use more than the authorised number of vehicles could be established independently, the decision to exercise the discretionary power to revoke required consideration of all relevant matters, including competence and honesty.
6. The Upper Tribunal applied the objective appellate approach described in Bradley Fold Travel Ltd & anor v Secretary of State for Transport [2010] EWCA Civ 695. A decision resulting from material procedural unfairness contained a legal error and could not stand. It was unnecessary to determine the appellants’ remaining grounds.
7. The Upper Tribunal could not fairly remake the decision after a half-day appeal focused on whether the original decision was plainly wrong. A rehearing before a new Traffic Commissioner was required to hear oral evidence and make the necessary factual findings. Pending that rehearing, the revocation and disqualifications had no effect.

• Traffic Commissioner for the West Midlands Traffic Area: Following a public inquiry on 11 January 2024, the Traffic Commissioner revoked Excell Logistics Ltd’s operator’s licence and disqualified the company and Miss Kufandirori for 12 months. The decision was dated 17 January 2024.
• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. The Traffic Commissioner’s decision was set aside and the matter was remitted to a different Traffic Commissioner for rehearing and determination at a public inquiry.