Two successful appeals in the same week for the transport team at Lincoln House Chambers
The transport team at Lincoln House Chambers have had a busy February and March with public inquiry appearances across the country but also for two appeal decisions being handed down in the same week.
Brendan O’Leary had appeared in the case of Douglas Bain and ABC Methlick Ltd, instructed by Lauren Wilson of Markel Law LLP, at both the first-instance hearing before the Traffic Commissioner for Scotland and then before the Upper Tribunal for the appeal.
The operator, in his own right as a sole trader licence-holder, and a separate limited company of which he was a director had their operator licences revoked and both had been disqualified from holding or applying for an operator’s licence for five years.
Mr O’Leary in his skeleton argument advanced five grounds of appeal. The first ground of appeal concerned a finding by the Traffic Commissioner that the operator had dishonestly altered maintenance paperwork. The Commissioner did not ask the operator a direct question to this effect. Instead, the transcript revealed some questions asked of the operator with the operator replying in a way which suggested he did not fully understand the question.
The Upper Tribunal agreed with Mr O’Leary’s submission that “…fairness required such a direct question because the stakes were so high…” Due to the nature of this error, the decision of the Traffic Commissioner was set aside and a fresh public inquiry directed. A stay of the decision was in place throughout which allows the operators to continue trading until the matter is finally determined.
In Darren Finnegan’s appeal hearing in the case of Hard Concrete Limited & anor, instructed by Georgina Power of Rothera Bray, the decision of the Deputy Traffic Commissioner was set aside and the matter remitted for a fresh public inquiry.
Mr Finnegan in his skeleton argument advanced five grounds of appeal. As with Mr O’Leary’s case, the Upper Tribunal agreed with Mr Finnegan’s first ground of appeal. This concerned a decision of the DTC to refuse to adjourn the public inquiry after the operator had emailed to say that they need more time to engage lawyers. Although this request had been made weeks before the public inquiry date, the DTC said that the operator does not need legal representation and that many operators appear without such representation.
The Upper Tribunal said “while those statements are true in the strict sense, the important question in considering fairness when an adjournment is requested for the purpose of obtaining representation is whether the particular individual or company called to an inquiry will be able adequately to present the case or whether representation is needed if that object is to be achieved.”
This case appears to be the first which deals with adjournment requests in order to obtain legal representation. Proceedings before the Traffic Commissioner are unusual in the sense that very important decisions (such as the effective closure of a company) can be determined at a hearing with as little as 28 days’ notice. This puts enormous pressure on operators who need to find expert legal representation for a complex hearing with remarkably little time to do so. This Upper Tribunal decision emphasises that such an adjournment request must be given detailed consideration by the Traffic Commissioner. The consequences flowing from a refusal to adjourn should also be considered and whether such would amount to substantial unfairness.
To instruct Brendan, Darren or any of our transport barristers, please contact Senior Regulatory Clerk Ty Price.