Scottish Court of Session Decisions

Coakley & Ors, Re an order Transport Tribunal [2003] ScotCS 101 (4 April 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood Lord Marnoch Lady Cosgrove

XA43/02 OPINION OF LORD KIRKWOOD in APPEAL to the Court of Session under the Transport Act 1985, Section 117(2) and Schedule 4(14) by (FIRST) EDWARD COAKLEY; (SECOND) COAKLEY BUS COMPANY LTD and (THIRD) CENTRAL BUS COMPANY LIMITED Appellants;   against An Order of the Transport Tribunal, dated and intimated to the Appellants on 6 February 2002 (as amended), upholding a Decision of the Traffic Commissioner, M.W. Betts, dated 12 October 2001 _______

 

Act: Lyndhurst; Russel & Aitken (Appellants)

Alt: McCreadie; H.F. McDiarmid, Solicitor to the Advocate General (Secretary of State for Transport)

Alt: Weir; Maclay Murray & Spens (Traffic Commissioner)

4 April 2003

1. These appeals relate to a decision of the traffic commissioner for the Scottish Traffic Area dated 12 October 2001 in which the commissioner (a) revoked the Public Service Vehicle operator's licence of Coakley Bus Company Limited, (b) refused to grant a PSV licence to Central Bus Company Limited and (c) disqualified both Coakley Bus Company Limited and Edward Coakley for five years from holding a PSV licence. The appellants appealed to the transport tribunal which, on 6 February 2002, ordered that the appeals be dismissed. The appellants have appealed to this court but at the present stage the only matter in relation to which we heard argument, and which we have to determine, is whether the traffic commissioner has a locus to be represented at the hearing of the appeal. We heard submissions on this question from counsel for the appellants, counsel for the Secretary of State for Transport and counsel for the traffic commissioner.
2. At the outset of his submissions, counsel for the Secretary of State set out the statutory framework contained in the Public Passenger Vehicles Act 1981 and the Transport Act 1985, and we do not need to rehearse the various statutory provisions. In general, the Secretary of State is responsible for the proper administration of the statutory provisions and regulations made thereunder.
3. The position of the traffic commissioner in its present form has its origin in the 1981 Act, and counsel referred to sections 3 and 4 of, and Schedule 2 to, the Act. The licensing regime, so far as PSV operators' licences are concerned, is contained in the 1981 Act and, in particular, sections 12 to 21 thereof. The traffic commissioner also exercises functions under the Civic Government (Scotland) Act 1982, the Road Traffic Act 1988 and the Goods Vehicles (Licensing of Operators) Act 1995. In relation to the grant, refusal, revocation or suspension of PSV operators' licences, there is a right of appeal from the traffic commissioner to the transport tribunal. We were referred to the statutory provisions and regulations relating to the transport tribunal. In terms of Schedule 4 to the 1985 Act, which deals with the constitution, powers and proceedings of the transport tribunal, the tribunal can determine all matters whether of law or of fact (paragraph 8), it has power to remit back to the traffic commissioner for rehearing and determination by him (paragraph 9), the Secretary of State is obliged to give to the tribunal such assistance as it may reasonably require (paragraph 12(1)), the Secretary of State is entitled to appear and be heard in any proceedings before the tribunal (paragraph 12(2)) and there is a right of appeal from the transport tribunal to the Court of Session, but only on a question of law (paragraph 14).
4. We were also referred to the Transport Tribunal Rules 2000 (S.I. 2000, No. 3226). Part III of the Rules relates to road transport appeals. Rule 14 is in the following terms:

"(1) The Tribunal may at any stage of an appeal order any person (other than the traffic commissioner) to be added as a party to the appeal.

(2) The parties to an appeal are:

(a) the appellant;

(b) every person who is entitled by rule 13(1)(b), (c) or (d) to receive a copy of the notice of appeal and who replies that he wishes to become a party in accordance with rule 13(2);

(c) every representor who is given permission by the Tribunal to become a party to the appeal; and

(d) every person who is added as a party by order of the Tribunal pursuant to this rule."

5. Accordingly, it was common ground that, if an appeal is taken to the transport tribunal from a decision of the traffic commissioner, the traffic commissioner is not permitted to be a party to the appeal, but the Secretary of State is entitled to appear and be heard.
6. Counsel for the Secretary of State, having referred to the various statutory provisions and regulations, submitted that in appeals from the transport tribunal to the Court of Session which involved decisions in relation to PSV operators' licences which had been taken by the transport commissioner, the commissioner was the proper contradictor, although the Secretary of State also had a locus to appear in the public interest. In an appeal of this nature, the Secretary of State had not been the decision-maker and he did not wish to become involved in the merits of an appeal. Indeed, the view of the Secretary of State was that it was not appropriate that he should intervene in relation to the merits of a decision taken by the traffic commissioner. The Secretary of State is entitled, but not bound, to appear in the Court of Session in order to ensure that important issues of law are placed before the court and are properly argued. This was the approach adopted by the Secretary of State in Thomas Muir (Haulage) Limited v. Secretary of State for the Environment, Transport and the Regions 1999 SC 86 at page 89A-B. It was submitted that, in relation to the merits of a case which involved a decision by the traffic commissioner, it was for the traffic commissioner to defend his own decision. The decisions of the traffic commissioner were taken in the exercise of his separate and independent regulatory functions. It was important to maintain the distinction between the functions of the traffic commissioner and the functions of the Secretary of State. The traffic commissioner represented the public interest but only in relation to his own functions, whereas the Secretary of State has an interest if, for example, there is a challenge to the traffic regulation system as a whole or to the transport tribunal itself, or where human rights issues are raised. The Secretary of State could appear at an appeal in the Court of Session even if he had not appeared before the transport tribunal. It may, in a particular case, be appropriate for the traffic commissioner and the Secretary of State both to appear in the Court of Session for their respective interests, even though an appeal to the Court of Session is only competent on a question of law.
7. Counsel also sought, in support of his contention that the traffic commissioner is the proper contradictor, to rely on the analogy of appeals under the Licensing (Scotland) Act 1976 in relation to the licensing of liquor and betting and gaming. In those cases the licensing board which had made the decision was entitled to appear at the appeal and defend its decision (section 39(2A), even though the sheriff was entitled to remit an application back to the licensing board for reconsideration. The licensing board was also entitled to appear in any subsequent appeal to the Court of Session. That was an example of a decision-making body being permitted to appear at an appeal against its decision, as a proper contradictor may be required in the public interest. The licensing board, like the traffic commissioner, is primarily a licensing body. While it was accepted that the Court of Session had the right to refer a case back to the traffic commissioner for a rehearing, any such rehearing could take place before the deputy traffic commissioner.
8. Counsel further submitted that in two petitions for judicial review relating to the fixing by licensing authorities of scales for taxi fares under section 17 of the Civic Government (Scotland) Act 1982, where there was a right of appeal to the traffic commissioner but no right of appeal from his decision to the Court of Session, the traffic commissioner had been permitted to lodge answers (Hanlon v. Traffic Commissioners 1988 S.L.T. 802 and City of Glasgow District Council v. Traffic Commissioner for the Scottish Traffic Area 1992 S.L.T. 873). Further, in Ribble Motor Services Limited v. Traffic Commissioner for the North Western Traffic Area [2001] RPR 564, which was the first appeal against a decision of the traffic commissioner to come before the Court of Appeal, the traffic commissioner had been represented. On the whole matter it was submitted that the traffic commissioner was the proper contradictor so far as the merits of the appeal were concerned.
9. Counsel for the traffic commissioner adopted the submissions which had been made on behalf of the Secretary of State. He submitted that, in an appeal from the transport tribunal to the Court of Session, the traffic commissioner and the Secretary of State were both entitled to appear, the traffic commissioner being the proper contradictor on the merits of a decision which he had taken within the limit of his jurisdiction, his locus being as an independent regulator. The traffic commissioner also had a certain investigative function. By analogy, in terms of section 9 of the 1985 Act, where an appeal is taken against the decision of the traffic commissioner in relation to inter alia the determination, variation or revocation of any traffic regulation conditions, the appeal is to the Secretary of State and there is a further right of appeal on a point of law to the Court of Session. Section 9(6) provides that the traffic commissioner, whose decision has been appealed against, is one of the persons who may appeal against the determination of the Secretary of State. In the circumstances the traffic commissioner should be permitted to appear at the hearing of the appeal.
10. Counsel for the appellants submitted that, in the case of an appeal from the traffic commissioner to the transport tribunal, the Secretary of State is the proper contradictor. He is also the proper contradictor when an appeal is taken from the transport tribunal to the Court of Session, an appeal which is restricted to questions of law, provided that he had appeared before the transport tribunal. However, if he had not appeared before the transport tribunal then he should not have an automatic right to appear and be heard in the Court of Session, but would be able to seek leave of the court to appear. Further, it was always open to the Court of Session to seek the assistance of the Secretary of State, as was done in Thomas Muir (Haulage) Limited, supra. While it had been indicated on behalf of the Secretary of State that he might wish to appear in the Court of Session to argue human rights issues, it was unlikely that he could do that without taking up a position on the merits. The traffic commissioner had originally to deal with the factual aspects of applications, including issues of credibility, and it was clear that difficulties would arise if he had appeared to argue the merits of an appeal and the case had to be remitted back to him for a rehearing, as the Court of Session admittedly had power to do. Further, the Court of Session has before it a transcript of the proceedings before the traffic commissioner and his written reasons for his decision. The Secretary of State therefore has all the material which he needs to enable him to deal with the legal aspects of the merits of the traffic commissioner's decision. It was, it was submitted, unreasonable for an appellant to the Court of Session to be faced with representatives of the Secretary of State and of the traffic commissioner, both dealing only with issues of law, particularly having regard to the potential liability for expenses.

Conclusion

11. When a traffic commissioner issues a decision in relation to an application for a PSV operator's licence, or the revocation or suspension of such a licence, it is common ground that, for the purpose of an appeal, a transcript of the proceedings before the traffic commissioner, and his written reasons for his decision, are available to the parties. In terms of paragraph 8 of schedule 4 to the Transport Act 1985, in the event of an appeal to the transport tribunal, the tribunal has full jurisdiction "to hear and determine all matters whether of law or of fact". In terms of paragraph 14(1) an appeal lies to the Court of Session but in terms of paragraph 14(2) it is provided that no appeal shall lie from the tribunal upon a question of fact or locus standi. Further, in terms of Rule 14 of the Transport Tribunal Rules 2000 it is expressly provided that the traffic commissioner may not be a party to an appeal to the tribunal, although the notice of appeal has to be served on him. It was submitted on behalf of the traffic commissioner and the Secretary of State that the traffic commissioner was the proper contradictor in the Court of Session and that he should be entitled to have an opportunity of defending his decision on the merits. However, when he is, in terms of the Transport Tribunal Rules, not entitled to appear before the tribunal to defend his decision, either on the facts or on an issue of law, it is very difficult to find any justification for giving him a right to appear in the Court of Session in order to deal for the first time with questions of law. A further consideration is that the traffic commissioner may well, in relation to a particular decision, have dealt with disputed questions of fact, which could involve issues of credibility and reliability, and if he appeared to defend his decision on the merits, it would not be appropriate for the case to be remitted back to him for a rehearing, a course which is admittedly open to the Court of Session, although in that connection a remit may be able to be made to a deputy traffic commissioner. We were referred to section 9 of the Transport Act which gives a traffic commissioner, who has determined, varied or revoked any traffic regulation conditions, a right to appeal to the Court of Session on a point of law against the determination of an appeal against his decision by the Secretary of State. However, that right is conferred on the traffic commissioner by statute, and it is perhaps significant that there is no comparable statutory provision in this case which confers on the traffic commissioner a right to appeal to, or appear before, the Court of Session. Similarly, in the case of appeals to the sheriff and to the Court of Session under the Licensing (Scotland) Act 1976, section 39(2A) of the Act expressly provides that a licensing board may be a party to any appeal, and I did not find that references to the position of licensing boards under the 1976 Act provided a relevant or helpful analogy. Further, in relation to the issue which we have to determine, I have not been able to derive any significant assistance from the Scottish cases of Hanlon and City of Glasgow District Council, supra, or the English case of Ribble Motor Services Limited.
12. So far as the Secretary of State is concerned, it is clear that, in terms of paragraph 12 of Schedule 4 to the 1985 Act, he is entitled to appear and be heard in any proceedings before the tribunal and, as I have said, he will have available to him the transcript of the proceedings before the traffic commissioner and the written reasons given by the commissioner for his decision. In the event of an appeal to the Court of Session on a point of law it seems clear that the Secretary of State will have all the information before him to enable legal arguments to be presented on his behalf, including arguments in support of the commissioner's decision and in relation to important points of legal principle or human rights issues. When the appeal to the Court of Session is restricted to points of law, it is difficult to justify a situation where the traffic commissioner and the Secretary of State can both appear to present legal arguments in relation to the appeal, a situation which could clearly have a bearing on expenses. While we were told that the Secretary of State took the view that it would not be appropriate for him to be involved in the merits of an appeal, where he had not been the decision-maker, I do not consider that we were presented with any convincing reason as to why he should not be in a perfectly good position to deal with any issues of law which arise in the course of an appeal. In the circumstances I have reached the conclusion that in an appeal of this nature to the Court of Session the proper contradictor is the Secretary of State and not the traffic commissioner.
13. A matter which has caused me some difficulty is whether the Secretary of State should be entitled, as of right, to appear at the hearing of an appeal from the transport tribunal to the Court of Session when he has not appeared, or been heard, before the tribunal. In Thomas Muir (Haulage) Limited v. Secretary of State for the Environment, Transport and the Regions, supra, the respondent had been represented before the transport tribunal as a result of the tribunal seeking his assistance under paragraph 12(1) of Schedule 4 to the 1985 Act, and he was likewise represented before this court. In the circumstances I have reached the conclusion that, when the Secretary of State has not been represented before the tribunal, he should only be entitled to appear at the hearing of the appeal in the Court of Session if he has sought, and been granted, leave by the court. There is no reason to suppose that in an appropriate case, and particularly if the court considered it advisable that there should be a contradictor, leave would not be granted. In certain circumstances the court might even invite him to fulfil that role.
14. For the foregoing reasons I move your Lordships to hold (1) that in an appeal from the transport tribunal to the Court of Session in relation to a decision of the traffic commissioner taken under the 1985 Act in respect of a PSV operator's licence, the traffic commissioner has no locus to appear in the Court of Session; (2) that in such an appeal, the Secretary of State is entitled to appear in the Court of Session if he had been represented before the tribunal and (3) that, if he had not been represented in the proceedings before the tribunal, he is entitled to appear in the Court of Session at the hearing of the appeal only with the leave, or at the invitation, of the court.



EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Marnoch Lady Cosgrove	XA43/02 OPINION OF LORD MARNOCH in APPEAL under The Transport Act 1985, Section 117(2) and Schedule 4(14) by EDWARD COAKLEY AND OTHERS Appellants;   against An Order of the Transport Tribunal, dated and intimated to the Appellants on 6 February 2002 (as amended), upholding a Decision of the Traffic Commissioner, M.W. Betts, dated 12 October 2001   _______

 

Act: Lyndhurst; Russel & Aitken (Appellants)

Alt: McCreadie; H.F. McDiarmid, Solicitor to the Advocate General (Secretary of State for Transport)

Alt: Weir; Maclay Murray & Spens (Traffic Commissioner)

4 April 2003

15. This is an appeal against an Order of the Transport Tribunal which upheld a series of decisions by the Traffic Commissioner relative to the holding by the respective appellants of a Public Service Vehicle Operators' Licence under section 12 of the Public Passenger Vehicles Act 1981. The right of appeal to this court is conferred by para. 14 of Schedule 4 to the Transport Act 1985 and the preliminary question which has arisen, and with which alone this Opinion is concerned, is whether the Traffic Commissioner is entitled to be heard at the substantive hearing of the appeal. As it happens, the Secretary of State for Transport is already represented in the appeal (having been represented before the Transport Tribunal) but the question which arises is one which requires an answer independently of that consideration.
16. The only substantive submission advanced on behalf of the Traffic Commissioner was that his position could be equiparated to that of a Licensing Board under the Licensing (Scotland) Act 1976. As it happens, the 1976 Act was amended in 1990 so as to make express provision for the Licensing Board to be heard in appeals against its decisions (section 39(2)(A) of the amended Act) but, before then, there had been conflicting decisions regarding the right of appearance in the Sheriff Court. Matters had been resolved by this court in 1981 when the Inner House decided in favour of such a right; vide Joe Coral (Racing) Ltd. v. Hamilton District Council 1981 S.L.T. (Notes) 106. In that case the court emphasised the administrative function of the Licensing Board and approved the reasoning of Sheriff Macvicar in Lightheart v. City of Edinburgh Licensing Board 1978 SLT (Sh. Ct.) 41, at p. 43, where Sheriff Macvicar in turn emphasised that the right of the Licensing Board to be represented was based essentially on its role as "protector of the public interest."
17. In my opinion, however, there are, at least, four reasons why, in the present context, the Traffic Commissioner should be distinguished from the Licensing Board.
18. In the first place, while the Traffic Commissioner can be seen as fulfilling an administrative function, his role, as it seems to me, is essentially quasi judicial. In short, so far as the 1981 Act is concerned, his role is essentially confined to the granting or revocation of licences under the Act. This is to be contrasted with the role of the Licensing Board which is entitled, on occasion, to use its own local knowledge in deciding, for example, that an area is already well enough served by licensed premises.
19. In the second place, it cannot be said of the Traffic Commissioner, as it was by Sheriff Macvicar of the Licensing Board, that he is, or may be, "the only guardian of the public interest." On the contrary, it seems to me that on an overall reading of the 1981 Act and having regard, in particular, to the various prerequisites for the grant of a licence contained in section 14 of the Act and the supervising role of the Secretary of State as focussed in, inter alia, section 55 of the Act, the minister clearly has a locus to represent the public interest in all matters affecting the grant, revocation or suspension of the licences in question. In that connection, we were informed that the Secretary of State's Vehicle Inspectorate not infrequently give evidence at inquiries mounted by the Traffic Commissioner under section 54 of the Act. What is more, it seems to me that para. 12(2) of Schedule 4 to the 1985 Act expressly recognises the locus and interest of the Secretary of State when it provides:-

"(2) The Secretary of State shall place at the disposal of the Tribunal any information in his possession which he considers will be of assistance to the Tribunal in connection with any matter before them, and shall be entitled to appear and be heard in any proceedings before the Tribunal."

For my part, therefore, I reject the submissions made to us on behalf of both the Secretary of State and the Traffic Commissioner to the effect that the Traffic Commissioner, in the performance of his "independent regulatory function", was the natural contradictor on the "merits" of the appeal and that the Secretary of State, both before the Tribunal and before us, should simply offer "assistance" on wider legal issues if and when he, the Secretary of State, thought it appropriate to do so. In my opinion, para. 12(2), referred to above, simply does not carry such a restricted meaning. In any event it seems to me that the concept contended for would be difficult, if not impossible, to implement in practice. In particular, it is seldom, if ever, that "wider legal issues" can be wholly separated from the "merits" of a particular appeal. It also seems highly unsatisfactory that an appellant should suddenly be faced with two contradictors, both of whom purport to represent the public interest on legal matters - because the appeal to this court is, of course, restricted to such matters. As to this branch of the case, counsel for each of the Secretary of State and the Traffic Commissioner sought to rely heavily on what was narrated by the court in Thomas Muir (Haulage) Ltd v. Secretary of State for the Environment 1999 SC 86. In delivering the Opinion of the Court the Lord Justice-Clerk, at p.89, states that senior counsel, on behalf of the Secretary of State, "pointed out that the respondent was not partisan, but sought to ensure that the law was clearly and correctly stated." This, according to counsel, was an example of the Secretary of State providing assistance in the manner suggested. In my opinion, however, it is equally consistent with a Secretary of State who does no more, nor less, than represent the public interest.

20. In the third place, it is, I think, no accident that in terms of rule 14 of the Transport Tribunal Rules (2000 S.I. No. 3226) the one person who cannot be added as a party to an appeal to the Transport Tribunal is the Traffic Commissioner. This strongly suggests that Parliament recognised that it would be invidious for the individual decision maker under the 1981 Act to be himself a party to an appeal from his own decisions. What is more, these provisions are in marked contrast to other statutory provisions which, in different contexts, expressly confer on the Traffic Commissioner a right to be heard; cf. e.g. section 9(6) of the Transport Act 1985 and section 119(2) of the Road Traffic Act 1988. It would be strange, indeed, if, having been barred from appearance before the Transport Tribunal, the Traffic Commissioner were to have a right to be heard for the first time before this court. Of course one consequence of such a right would be that fresh legal submissions could likewise be made for the first time before this court - a situation which is obviously wholly unsatisfactory.
21. In the fourth place, it has to be remembered that there are circumstances in which this court may remit a case back to the tribunal of first instance, be it Licensing Board or Traffic Commissioner. The earlier appeal referred to in Thomas Muir (Haulage) Ltd. v. Secretary of State for the Environment cit. sup. at p. 88 is an example of the latter. In the case of the Licensing Board there is usually no difficulty in ensuring, where necessary, that the Board is differently constituted. In the case of an individual Traffic Commissioner, however, it is clear that the problems of such a remit would be almost insurmountable if the Commissioner had himself been a party to the appeal. In this connection, counsel for each of the Secretary of State and the Traffic Commissioner sought to persuade us that any remit back could be made, so far as Scotland is concerned, to the Deputy Traffic Commissioner. However, it is difficult to see how the Deputy Traffic Commissioner would be perceived as wholly independent of the Traffic Commissioner.
22. For all the foregoing reasons I am clearly of opinion that the Traffic Commissioner has no locus standi in this court. In reaching that conclusion I have not overlooked the fact that in one case in England, Ribble Motor Services Ltd. v. N.W. Traffic Comm. [2001] R.P.R. 564, the Traffic Commissioner appears to have been represented in the Court of Appeal. However, that case involved a different statutory function emanating from provisions in the Transport Act 1985 and no point was taken regarding the competency of the appearance and/or representation.
23. What I have said so far is enough for a decision in the present case. However, in the course of the debate, there was canvassed before us the further question of whether the Secretary of State would be entitled to appear before this court even in a case in which he had not been a party before the Tribunal. As at present advised, I have difficulty in seeing how in that situation the Secretary of State could claim any actual right to appear and be heard. That said, in a case of general importance he could doubtless ask to be heard in the capacity of an amicus curiae and, indeed, the court might well invite him to fulfil that role. Normally, however, the opposing parties who appeared before the Tribunal will also fulfil the role of contradictor before this court. If, of course, there has been no contradictor before the Tribunal, then, likewise, there may be no contradictor on appeal. Again, that appears to have been the position in the earlier appeal referred to in Thomas Muir (Haulage) Ltd. v. Secretary of State for the Environment cit. sup. In such a situation it will nonetheless be up to the appellant to satisfy the court that the Tribunal has erred in point of law.
24. Reverting to the matter immediately in hand, for the reasons given above, - which were substantially the reasons advanced by Mr. Lindhurst, for the appellants, - I am for refusing the Traffic Commissioner's motion to be heard in this appeal.



EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood Lord Marnoch Lady Cosgrove

XA43/02 OPINION OF LADY COSGROVE in APPEAL to the Court of Session under the Transport Act 1985, Section 117(2) and Schedule 4(14) by (FIRST) EDWARD COAKLEY; (SECOND) COAKLEY BUS COMPANY LTD and (THIRD) CENTRAL BUS COMPANY LIMITED Appellants;   against An Order of the Transport Tribunal, dated and intimated to the Appellants on 6 February 2002 (as amended), upholding a Decision of the Traffic Commissioner, M.W. Betts, dated 12 October 2001 _______

 

Act: Lyndhurst; Russel & Aitken (Appellants)

Alt: McCreadie; H.F. McDiarmid, Solicitor to the Advocate General (Secretary of State for Transport)

Alt: Weir; Maclay Murray & Spens (Traffic Commissioner)

4 April 2003

25. I am in agreement with the opinions of your Lordships and am in full agreement with your Lordship in the chair in holding as your Lordship proposes.