England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRANSPORT TRIBUNAL
(MS JACQUELINE BEECH)
(MR STUART JAMES)
(MR JOHN ROBINSON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th January 2008

Lord Justice Keene:

1. This appeal concerns the operation by the appellant of bus services in the West     Midlands under a licence granted under the Public Passenger Vehicles Act 1981 ("the 1981 Act"). Such licences are known as public service vehicle ("PSV") operator's licences.
2. The appellant had such a licence to operate 15 buses but on 20 November 2006 the Traffic Commissioner for the West Midlands area revoked it, using his powers under section 17 of the 1981 Act, and disqualified the appellant from holding a licence for two years. The appellant appealed to the Transport Tribunal under section 50(4) of the 1981 Act. That appeal to the Transport Tribunal lies both on issues of fact and on issues of law and indeed on how any discretion should be exercised. The Transport Tribunal dismissed the appeal on 20 April 2007.
3. The appellant now appeals to this court. That right of appeal exists only on a point of law and that is made clear by Schedule 4 paragraph 14(2) of the Transport Act 1985 which says in terms that no appeal lies on a question of fact.
4. There appears to have been some uncertainty, at least at some point, as to whether permission to appeal is required for an appeal to this court from the Transport Tribunal. Paragraph 14 (3) of Schedule 4 provides that:

"An appeal shall not be brought except in conformity with…rules of court"

But the relevant rule in the Civil Procedure Rules is Rule 52.3(1), which only requires permission to appeal where the appeal is from a decision of a judge in a county court or the High Court and makes no reference to statutory appeals from a tribunal. That same provision states that:

"Other enactments may provide that permission is required for particular appeals",

but the fact is that no enactment does so provide in the cases of appeals from the Transport Tribunal.

5. The arguments concerning statutory appeals were thoroughly considered by this court in the case of Colley v the Council for Licensed Conveyancers [2001] EWCA Civ 1137 where it was concluded that there was no general requirement for permission to appeal deriving from the CPR or the Practice Direction under part 52, so far as statutory appeals from tribunals were concerned.
6. That is certainly the approach this court has already taken on at least one occasion in the past where the appeal was from the Transport Tribunal. In Alison Jones t/a Shamrock Coaches v Dept of Transport Welsh Traffic Office [2005] EWCA Civ 58, Smith LJ, with whom the other two members of the court agreed, referred to the relevant provisions of the Transport Act 1985 and simply stated this:

"1…By reason of those provisions the appeal is a statutory appeal for which permission to appeal to this court is not required."

7. That appears to me to be correct in law. No permission to appeal is required for appeals to this court from the Transport Tribunal and I turn therefore to the basic facts and arguments in this case.
8. The appellant has held a PSV operator's licence since 1993 authorising, by the time with which we are concerned, the operation of 15 vehicles. He was also the nominated transport manager of Banga Travel. "Transport manager" is a role specifically provided for in the 1981 Act: see Section 16A(1)(b) and 16A(2). As one might expect, that Act seeks to ensure that buses or coaches used to carry members of the public are maintained in a safe and roadworthy condition. A PSV operator's licence cannot be granted unless the Traffic Commissioner is satisfied that there will be:

"…adequate facilities or arrangements for maintaining in a fit and serviceable condition the vehicles proposed to be used…": section 14(3)(a)

9. The Traffic Commissioner has both the power and the duty under section 17(1) to revoke the licence if it appears to him at any time that the holder no longer satisfies the requirement as to professional competence, and he has a further power under section 17(2) to revoke or suspend the licence on any of the grounds set out in section 17(3). Those grounds include the fact that a prohibition has been imposed under section 69 of the Road Traffic Act 1988 by a vehicle examiner on the driving of a vehicle owned or operated by the PSV licence holder -- see ground (c).
10. Those were the powers relied on by the Traffic Commissioner in the present case. Before exercising them he held, as he was required to do under section 17(4) of the 1981 Act, an inquiry, that taking place in September 2006.
11. That was not the first inquiry held by him to consider the maintenance of the appellant's fleet. In particular, following the issue of a number of prohibitions in April 2005 there had been a public inquiry, which resulted in a decision to reduce the number of vehicles on the appellant's licence from 15 to 7. That decision was made on 31 October 2005. On appeal against that decision the Transport Tribunal was persuaded that, in the light of a new maintenance contract with a company called BDS Commercials Ltd, entered into since the Traffic Commissioner's decision, the reduction in the number of vehicles was too drastic. By its order of April 2006 the Transport Tribunal remitted the matter to the Commissioner for him to consider whether the maintenance system now proposed would be adequate.
12. Thus the matter came before the Commissioner in September 2006. There was additional evidence by then about further examples of poor maintenance from vehicle examiners. This evidence disclosed a continuing problem of serious defects since the previous hearing. The main vehicle examiner said, according to the eventual decision, that there was:

"'a clear shortfall in respect of the maintenance systems required to operate PSVs….previous advice and guidance….appears to have been disregarded, as shortcomings found during this investigation mirror previous investigations….there is a clear lack of management, quality control….thus allowing vehicles to be operated in a significantly unroadworthy condition'."

At paragraph 13 of the decision, the Commissioner recorded the evidence of a vehicle examiner that:

"Although there was some improvement between December and June, there were still 'fundamental failings' of the operator."

13. The appellant himself gave evidence at that inquiry, as did others, as part of his case. On his behalf it was said:

"Mr Banga remained of good repute as transport manager in view of the steps he had taken to put things right, and exercised continuous and effective control as was required. Likewise as a licence holder: he had put right by June 2006 what was wrong in December 2005. At long last he was getting things right. The key issue…was to be able to trust Mr Banga to ensure safety of his vehicles, based on the continuing improvements to systems."

14. The Traffic Commissioner was not persuaded by that submission. He found, paragraph 43, a failure to fulfil the undertaking to make proper arrangements to ensure that vehicles were kept in a fit and serviceable condition. He took account of the impact of any action on the appellant's business and he then considered his options. He concluded that the appellant deserved to lose his licence. Realistically, he said, the options were to revoke his licence or:

"…to suspend it for a period to make him realise how badly he has let things slip and thereafter to allow him to continue with a reduced fleet with a new transport manager, either his son (if he has obtained his Certificate of Professional Competence) or another person to be employed for at least 20 hours a week; together with the undertakings offered at the hearing.

47. Before deciding between these options, I gave Mr Banga 14 days to offer me. if he wished to, an undertaking in respect of transport manager as set out in the last paragraph, to take effect not later than 1 January 2007. In the reply from Mr Arthur on his behalf, dated 3 November, Mr Banga failed to give this undertaking because 'to appoint another person would be very expensive…and he is unlikely to find anyone with the depth of knowledge and experience that he possesses himself.'

48. This confirms my view that the problem is Mr Banga himself, who does not understand that he has failed to run an acceptable operation. It is not his knowledge and experience that matter; it is his lack of managerial competence in running buses safely. It is clear that he deserves to lose his licence; and that he is no longer of good repute as licence holder or transport  manager. The licence is therefore revoked under s17(1) and s17(3). Revocation will take place at 2359 hours on Wednesday 31 January 2007, to allow time for Raj Banga, should he so wish, to apply for a licence and for the processes to be completed".

Raj Banga, it should be pointed out, is the appellant's son.

15. The appellant appealed to the Transport Tribunal on a number of grounds. None found favour. The tribunal was satisfied that the appellant had not taken adequate steps to remedy the deficiencies in his maintenance system. The tribunal went on to say this at paragraph 7 of its decision:

"The Appellant is clearly reluctant to accept advice and guidance or to acknowledge that there is anything wrong with his fleet of vehicles (apart from some minor defects). He is obstructive and aggressive in his dealings with VOSA. The Traffic Commissioner's finding that the Appellant was no longer of good repute nor confident to run a safe and roadworthy fleet of vehicles cannot be criticised. The problem with the Appellant's operation is the Appellant himself and when faced with the Appellant's refusal to stand down as Transport Manager, the Traffic Commissioner had no alternative but to find that revocation of his licence was an inevitable consequence of the failings that had been identified. That decision was justified not only in relation to the Traffic Commissioner's findings on good repute and competence but also the breach of undertakings to keep vehicles fit and serviceable."

Its final substantive paragraph, paragraph 9, deals with disqualification. It reads as follows:

"We are satisfied that the Appellant's history of non-compliance and his lack of competence to operate vehicles safely justifies an order for disqualification for two years. The Appellant cannot be trusted with a passenger transport operation and his refusal of the Traffic Commissioner's invitation to stand down as Transport Manager indicates a failure on his part to understand the responsibilities and obligations arising out of the operation of commercial vehicles."

Thus his appeal was dismissed.

16. As I emphasised at the outset of this judgment, the appeal to this court, unlike that to the Transport Tribunal, is on points of law only. Most of the grounds now raised were raised before the tribunal but involved no point of law even though, in form at least, it is still sought to advance them. Thus one finds amongst the grounds the contention that the commissioner "failed to have sufficient regard to the improvements that had latterly been made".
17. That ground does not raise a point of law. So long as the Commissioner took account of those improvements the weight he attached to them was a matter for him and subsequently the tribunal. Absent perversity, there is no possible error of law there.
18. There is also an argument raised about the proportionality of revocation. It is said that it was not proportionate to revoke the licence. Mr Goodwill, on the appellant's behalf, accepts that the Traffic Commissioner considered proportionality but he argues that the Commissioner and then the Transport Tribunal erred in their decision on proportionality. He says that the tribunal erred in finding the Traffic Commissioner's decision proportionate. This frankly is, as a point of law, a non-runner. What is proportionate in any given case does not normally give rise to any issue of law. It is a matter for the decision-maker to balance all the various considerations that are involved in a decision on proportionality: see, in a very different context, this court's decision in Mukarkar v SSHD [2006] EWCA Civ 1045 at paragraph 11. It is only if a decision on proportionality adopts the wrong legal approach or is perverse that there will be an error of law. Mr Goodwill does not shrink from arguing that revocation and disqualification here was so disproportionate as to be perverse; that is to say in the true Wednesbury unreasonable sense that it was a decision to which no reasonable tribunal, properly instructing itself, could on the evidence have come.
19. Frankly, to my mind, that is a hopeless submission. There plainly were legitimate options open to the Traffic Commissioner on the facts involving revocation and disqualification. The Transport Tribunal from which this appeal is brought is a specialist body. This court will be reluctant to find that it has been perverse in reaching a decision on the merits and certainly there is no basis for us so finding in this case. The safety of the travelling public is not only a legitimate consideration to balance against the business interests of the appellant, it is a matter of great importance and clearly weighed heavily both with the Traffic Commissioner and the Transport Tribunal. There is no possible argument that these decisions were perverse. For my part I can see nothing of merit in these various points which were pursued before the Transport Tribunal.
20. The main argument advanced this morning is one of procedural irregularity. It is said by Mr Goodwill that the Traffic Commissioner acted unfairly and in breach of natural justice in acting as he did between the September 2006 inquiry and his decision on 20 November 2006. What this argument is based on is largely the correspondence during that period. I have already referred to this briefly when quoting from the Commissioner's decision but it is now necessary to take it in a little more detail.
21. After the inquiry at which the Commissioner had explored a great range of options in the course of the evidence being given, a letter dated 20 October 2006 was sent to the appellant's solicitor on behalf of the Commissioner. That letter to the solicitor was brief. It read as follows:

"Please find enclosed a letter sent to your client today.

If I can be of any further assistance please do not hesitate to contact me."

I quote that merely because of the second sentence.

22. The enclosed letter, which bears the same date, referred to the September inquiry and then went on as follows:

"The Traffic Commissioner has asked me to write to you and ask whether you would be willing to give the following undertaking:-

'That you will appoint a new Transport Manager on the licence in place of yourself, to take on this responsibility no later than 1 January 2007. If this were to be someone not currently working for the business, this person would be employed for at least 20 hours a week. If it were someone currently involved with the business, this person would be employed full-time'.

Please reply to this letter no later than 3 November 2006.

In the absence of a response the Traffic Commissioner will assume that you are unwilling to give this undertaking.

If I can be of any further assistance please do not hesitate to contact me."

23. In a reply dated 3 November 2006, on behalf of the appellant his solicitor said this in the material paragraphs:

"My client has given careful and serious consideration to the question of whether he will be willing to appoint a new transport manager in place of himself no later than 1 January 2007. The position is that his son, Raj Banga, has taken his CPC examination and expects to receive the results in the week beginning 13 November 2006. If he is wholly successful he will be eligible to be appointed as transport manager but if not he will have to re sit any papers that he fails. The re sits will be during December 2006 with the results being announced some weeks later.

My client does definitely intend to appoint his son as a joint transport manager as soon as he passes his CPC examination and would willingly give an undertaking to that effect. He is reluctant to appoint another person in the interim to work as transport manager for 20 hours per week because it would be very expensive to do so and he is not likely to find anyone with the depth of knowledge and experience that he himself possesses. When he retires from the business he will leave his son as sole transport manager." (Emphasis added)

I need not read the remaining parts of that letter. It went on to stress the appellant's qualifications and his "wealth of practical experience".

24. Before I come to the contentions now put forward, I do note that an undertaking as sought by the Commissioner is something which has statutory significance under the 1981 Act. It is a matter which can be taken into account when deciding whether or not to grant a licence under section 14 -- see section 14(3A). It is something which is recorded in any licence granted --see Section 14(5) -- and failure to fulfil an undertaking is a ground for revocation or suspension of a licence: section 17(2)(aa). So it is a formal matter recognised by the Act and its importance is something of which, one suspects, those with experience in the industry and those advising them would be very well aware.
25. On behalf of the appellant it is submitted that the Commissioner should have reconvened the public inquiry to explain why he sought this undertaking and to warn of the consequences if it was not given. Mr Goodwill argues that the Traffic Commissioner had not expressly raised this possibility at the hearing itself. Mr Goodwill has taken us to parts of the evidence where the various options were explored by the Traffic Commissioner. It is said that it was not clear in the letter of 20 October 2006 that the absence of such an undertaking would be so important in the ultimate decision. Consequently the submission is that the procedure adopted by the Traffic Commissioner was unfair and in breach of natural justice.
26. There is, it seems to me, a considerable initial problem about this line of argument. The appellant is seeking to persuade us that the Transport Tribunal erred in law in its decision, yet this point, as Mr Goodwill ultimately acknowledged, was never taken before the Transport Tribunal and consequently it has made no decision about it. If one looks at the tribunal's decision, one finds indeed that before the tribunal it was being emphasised that the appellant wanted to retain control as Transport Manager (See paragraph 5 of the tribunal decision). There was never any suggestion in the grounds of appeal nor so it seems at the hearing before the tribunal that, given a further opportunity, the appellant would have agreed to stand down from that role.
27. The problem is that, if the tribunal never made the decision on the point that is now being put forward and was never asked to make a decision to that effect, how can it be said to have made an error of law? Mr Goodwill argues that there was an error by the Transport Tribunal in upholding a procedure which was unfair. But the fact remains that the tribunal did not pronounce upon the procedure because they were never asked to; the point was not raised. Now it may be that there could be extreme procedural regularities, ones so glaring that the appeal tribunal errs in law if it does not of its own volition identify it and deal with it. I for my part would not rule that out as a possibility. But even if there is that possibility, this case falls miles short of being such a case. The appellant therefore seems to me to fail at this initial hurdle.
28. But in any event the point seems to me to be bad on its merits. The undertaking sought by the Commissioner was clear in its terms; it required the appellant to appoint someone as Transport Manager "in place of himself". Indeed it cannot be suggested that it was not clear and that the appellant did not understand it because, in the response sent on his behalf, the point is expressly made that he is not willing to appoint a new Transport Manager "in place of himself", but that he intended to appoint his son as a joint Transport Manager. The distinction, in other words, was one appreciated by the appellant and those advising him. It is said, as I have indicated, that the importance of this particular undertaking sought should have been made clearer. I cannot accept that there is any deficiency in that respect; it must have been very obvious that the undertaking sought was important and obvious why it was sought. This was a formal letter from the Traffic Commissioner's office seeking a formal undertaking. The request was, it seems, given "careful and serious consideration" by the appellant and yet the undertaking was not given. Patently the Traffic Commissioner was entitled to take that into account; I do not accept that he had to reopen the inquiry or in some way open a discussion with the appellant. Traffic Commissioners are not in the business of negotiating or bargaining. In addition both the letters of 20 October 2006 indicated that further clarification could be sought by or on behalf of the appellant if there was any uncertainty about the undertaking sought. No such clarification was sought for the reason which is apparent, namely that the terms of the undertaking were fully appreciated by the appellant.
29. I am not persuaded at all that the Traffic Commissioner erred in any way in the course of action which he adopted. There was no procedural irregularity or unfairness on his part. It follows that even if this point had been taken before the tribunal on appeal and had been rejected by that body, I would have found no error of law in such a decision by the tribunal. For these reasons I, for my part, am wholly unpersuaded by the arguments now advanced on behalf of the appellant and I would dismiss this appeal.
30. We have, finally, been asked, if such were our decision, to suspend revocation for a time to allow the appellant's son to obtain his licence. We are told that he has applied some time ago for such a licence but the procedures are taking some time. I note that the Transport Tribunal itself made an order dismissing the appeal but only with effect from 1 June 2007, which would have been a period of something like 8 weeks after its decision. For my part, in fairness to the appellant, I would be prepared to dismiss this appeal but with effect from 8 weeks from today.

Lord Justice Ward:

31. I agree. It may be a great pity that the appellant failed to appreciate the significance of the Traffic Commissioner's request for an undertaking to surrender his position as Transport Manager and appoint another, the obvious candidate being his son, for that promotion. In my judgment the letter of 20 October very fairly gave the appellant the biggest hint possible of the dire consequences of the failure to step down from control of his business. The appellant could have dealt with this at the hearing before the tribunal but he chose not to do so. Instead his case, as presented to the tribunal, is summarised by the tribunal in paragraph 5 of its decision where it is recorded as follows:

"In relation to the Appellant's refusal to stand down as Transport Manager, Mr Nesbitt [the counsel then appearing for him] submitted that the Appellant was a very proud man who felt strongly about his own capabilities. He wanted to retain control as Transport Manager…"

32. It is a sad aphorism that pride comes before a fall; and for me the only difficult question in this appeal is whether we can properly cushion that fall. Can we do anything to give this business a chance of survival?
33. Well we certainly cannot allow the appeal because it is utterly hopeless. There is not the beginning of a point of law to be argued. The fact is that the tribunal did not err in any respect whatsoever; consequently the appeal must be dismissed. Then the question is whether we can extend a stay long enough to enable the son to take over the business and pick up the broken pieces. Though naturally sympathetic to the family of the appellant, whose business and whose livelihood is at risk, I do not see how we can do more than give the appellant a further eight weeks before the disqualification bites. That may give his son a chance to convey this observation to those who are adjudicating the son's application for a licence, and if Mr Goodwill were to lick his pen and begin to write down the following observation, it is intended to be helpful.
34. The Court of Appeal fully understands the heavy workload of the Commissioners, especially since we are told that several valued members have recently retired and have not yet been replaced. Nonetheless it seems to me that Mr David Dixon would have wished to give the son a chance to take over the business without interruption. I am prepared to permit the appellant's solicitors to communicate with the Commissioners, present my compliments and say that if the Commissioners could find a way to expedite their decision then this court would appreciate their cooperation, making it plain that this is a polite request and in no sense at all a direction. I hope that that will help this family.
35. The appeal is to be dismissed.

Lord Justice Keene:

36. I would associate myself with my Lord's remarks.