Pro Drainage Limited & Ors v The Traffic Commissioner for the Western Traffic Area

Incompetent representation may justify setting aside a traffic commissioner’s decision where it causes identifiable unfairness in the inquiry. The incompetence must have a causative effect on the fairness of the process and will generally need to be substantial.

The representative’s role is to conduct the hearing competently. It does not necessarily include giving earlier advice designed to alter the facts before the inquiry. On an appeal against mandatory revocation, the Upper Tribunal reviews the material before the traffic commissioner. Revocation requires consideration of the likelihood of future compliance and whether putting the operator out of business is proportionate.

The appellants appealed against the Traffic Commissioner’s decision of 12 August 2024, which revoked the company’s operator’s licence for loss of good repute and breach of drivers’ hours undertakings and disqualified the appellants for three years.

The sole maintained ground was that their representative at the public inquiry had been incompetent, particularly in relation to drivers’ hours, the emergency exemption, licensing arrangements and the presentation of mitigating factors. The central issue was whether those shortcomings rendered the inquiry unfair and required the decision to be set aside or remitted.

1. Appeal dismissed. The appellants established shortcomings in the representative’s performance, but not an unfair inquiry or any procedural irregularity requiring the Traffic Commissioner’s decision to be set aside.
2. Bolam and Saif Ali concerned professional negligence and did not determine whether the hearing was fair. The relevant question was whether incompetence caused identifiable unfairness. A decision could be set aside on that basis, although the incompetence would ordinarily need to be substantial and causative.
3. The representative was unfamiliar with the drivers’ hours legislation, the emergency exemption, operating centres, self-employed drivers and licence categories. He also failed clearly to address the Priority Freight and Bryan Haulage questions or to identify the available positive factors. Those failures were sufficient to justify examining unfairness.
4. However, earlier advice intended to change the operator’s future conduct was distinct from the representative’s duty to conduct the inquiry. The evidence did not establish that a competent representative could have produced a functioning remedial scheme by the hearing. At most, there would have been a plan and assurances.
5. The Traffic Commissioner correctly explained the emergency exemption. It relaxed only the limits on driving and working-day length. It did not remove the requirements concerning rest during the day, rest between working days, weekly hours or a weekly 24-hour break. The Commissioner’s findings of continuing and dangerous breaches were not challenged.
6. The Commissioner addressed the required future-compliance and proportionality questions. The company had taken effective steps concerning maintenance but had not acted on the fundamental drivers’ hours problem despite repeated warnings. Its continuing dangerous practices, lack of insight and inadequate governance justified the conclusions that future compliance could not be trusted and that revocation was proportionate.
7. The omission of submissions on the Isle of Wight operating centre and the earlier licensing issue caused no unfairness because those matters did not materially ground the decision against the appellants. The self-employed-driver issue likewise caused no unfairness because no missing factual case or different outcome was identified.

The appeal was dismissed.

• Traffic Commissioner for the Western Traffic Area: on 12 August 2024 revoked the company’s operator’s licence and disqualified the appellants for three years.
• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and upheld the decision.