Douglas Bain & Anor

Fairness in a regulatory inquiry requires a person facing a serious and newly raised allegation to understand the allegation and have a fair opportunity to answer it. Where an allegation emerges for the first time in oral evidence, the decision-maker may investigate it, but must take steps proportionate to its significance. A direct and unambiguous question may be required before an adverse finding is made from an apparent failure to deny the allegation. The decision-maker must also address the evidential basis for the allegation. An unfair finding is material where there is a real possibility that it affected the regulatory outcome. In that event, the decision should be set aside and the matter may be remitted for reconsideration at a fresh inquiry.

Mr Douglas Bain and ABC (Methlick) Ltd appealed against four decisions of the Traffic Commissioner for Scotland dated 6 August 2023. The Commissioner revoked the appellants’ public service vehicle operator’s licences and made five-year disqualification orders against the appellants and Mr Bain as transport manager.

The appeals concerned, among other matters, a finding that maintenance documents had been falsified and that Mr Bain had acted dishonestly. That allegation had not been identified in the call-up material and arose during the oral evidence of a vehicle examiner. The central issue was whether the procedure by which the Commissioner relied on Mr Bain’s answers and inferred dishonesty was fair.

1. Appeal allowed. The four decisions of the Traffic Commissioner were set aside because the finding of dishonesty involved errors of law and procedural unfairness.
2. The allegation that maintenance records had been completed retrospectively was not identified in the call-up letter or the examiner’s written report. It first arose during oral evidence. That did not prevent the Commissioner from considering it, but fairness required account to be taken of the fact that Mr Bain could not have prepared to meet the allegation.
3. The examiner’s evidence was expressed as a suspicion based on a comparison between clean and grubby records. The Tribunal considered it significant that the written report did not articulate the suspicion and that the Commissioner’s reasons did not show that she had independently compared the documents.
4. The Commissioner’s questions did not make it sufficiently clear that Mr Bain was being asked whether he, or someone acting under his instruction, had dated maintenance documents before they were completed. His answers therefore left reasonable doubt as to whether he understood the allegation. Given the stakes, fairness required a direct and unambiguous question before relying on an apparent failure to refute the allegation.
5. The finding that Mr Bain had failed to deny falsification and had acted dishonestly was material. It was one of the matters identified as exemplifying the most serious aspect of the case, and there was a real possibility that, without it, the Commissioner would not have concluded under Bryan Haulage (No. 2) T/2002/217 that the conduct justified putting the operator out of business.
6. The Tribunal did not determine the remaining grounds, including arguments concerning obstructiveness, the balancing exercise and fresh evidence, because the matters might arise again at a fresh inquiry.
7. Under paragraph 17(2) of Schedule 4 to the Transport Act 1985, the matters were remitted for reconsideration at a fresh public inquiry, subject to the Senior Traffic Commissioner’s power to decide that a fresh inquiry was unnecessary or that fresh call-up letters were required.

• Upper Tribunal (Administrative Appeals Chamber): appeals from four decisions of the Traffic Commissioner for Scotland dated 6 August 2023 were allowed. The decisions were set aside and the matters were directed to be reconsidered at a fresh public inquiry, subject to the terms of the disposal order.