Al-Le Logistics Ltd & Ors, R (on the application of) v Traffic Commissioner for the South Eastern and Metropolitan Traffic Area & Anor [2010] EWHC 134 (Admin) (02 February 2010)

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England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Al-Le Logistics Ltd & Ors, R (on the application of) v Traffic Commissioner for the South Eastern and Metropolitan Traffic Area & Anor [2010] EWHC 134 (Admin) (02 February 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/134.html
Cite as: [2010] EWHC 134 (Admin)

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		Neutral Citation Number: [2010] EWHC 134 (Admin)
		Case No: CO/7007/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

2nd February 2010

B e f o r e :

David Holgate QC
(Sitting as a Deputy Judge of the High Court
____________________

Between:

	THE QUEEN ON THE APPLICATION OF (1) AL-LE LOGISTICS LIMITED (2) ALAN JOHN BENNETT (3) LEE BENNETT (4) MICHAEL GODDEN	Claimants
	- and -
	(1) TRAFFIC COMMISSIONER FOR THE SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA VEHICLE AND OPERATOR SERVICES AGENCY (2) TRAFFIC COMMISSIONER FOR THE NORTH WESTERN TRAFFIC AREA	Defendants

____________________

Walter Aylen QC and John Upton (instructed by Robert Locke Solicitors) for the Claimants
Sam Grodzinski (instructed by the Treasury Solicitor) for the First and Third Defendants
Gordon Nardell (instructed by the Treasury Solicitor) Second Defendant

Hearing date: 16th December 2009
____________________

HTML VERSION OF JUDGMENT
____________________

David Holgate QC :

Introduction

The Goods Vehicles (Licensing of Operators) Act 1995 ("the 1995 Act") implements the European Community obligations of the UK in relation to the licensing of operators of heavy goods vehicles. Such an operator must hold a licence issued by a Traffic Commissioner who is an independent regulator. A Commissioner has the power subsequently to revoke a licence on specified grounds and may also disqualify the operator or connected persons from holding a licence. This licensing regime serves a vital public interest, namely to protect public safety. The present case arose as a result of a fatal accident which involved a driver employed by the First Claimant, Al-Le Logistics Limited ("ALLL").

The Claimants have applied for permission to seek judicial review of a decision by the First Defendant, the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area ("TC SEMTA"). On 7^th April 2009 he decided to call all four Claimants to a second public inquiry. That decision was communicated by letters dated 11 May (see para 34 of TC SEMTA's witness statement). I heard the application at a rolled-up hearing.

The original inquiry had taken place on 3^rd and 4^th April 2008, after criminal proceedings against a number of ALLL's drivers had been concluded. (However, none of the Claimants have been prosecuted). The inquiry was held by the First Defendant, who is the Senior Traffic Commissioner. He gave his decision on 29^th May 2008. He revoked the First Claimant's operator's licence having concluded that the company had "lost its repute" (see section 27 of the 1995 Act) and had also failed to have proper compliance arrangements in place (see section 26 of the 1995 Act). The First Defendant also made a disqualification order for 12 months under section 28 of the 1995 Act against the Second Claimant, Mr. Alan Bennett, a director of ALLL. He also made a finding of loss of repute against the Fourth Claimant, Mr. Michael Godden who at that stage was the Transport Manager of ALLL. The First, Second and Fourth Claimants then appealed to the Transport Tribunal. On 3^rd November 2008 the Tribunal, presided over by His Honour Judge Brodrick allowed the appeal and remitted the matter for "consideration of a rehearing".

On 11^th May 2009 the First Defendant himself took the decision that the proceedings should continue and that a fresh public inquiry should be held. However, he also directed that the inquiry be held by a Deputy Traffic Commissioner with no previous involvement in this matter. The present claim was issued on 29^th June 2009, initially to challenge that decision to continue with the proceedings and the inquiry. The various grounds alleged against the First Defendant include breach of legitimate expectation, incorrect burden of proof, lack of disclosure, and denial of natural justice. The Third Claimant, Mrs Lee Bennett, is the wife of Mr. Alan Bennett and also a director of the First Claimant. However, none of the decisions of the Traffic Commissioners criticised in the hearing before me were made against her personally.

The Second Defendant, the Vehicle and Operator Services Agency ("VOSA") is an executive agency of the Department for Transport. Its officials include examiners, who monitor operators' compliance with the 1995 Act, conduct investigations, and provide evidence to enable a Traffic Commissioner to decide whether to exercise his or her powers. Other officials serve as management and administrative staff, including some who work in the Office of the Traffic Commissioner (see below). The claim also made a number of broad allegations against VOSA, including abuse of process, involvement in systemic bias and a denial of natural justice.

The Third Defendant is the Traffic Commissioner for the North Western Traffic Area ("TC NWTA"). She dealt with another company, Al-Le Logistics Northern Limited ("Northern"), based in Southport. Following a submission from VOSA, on 11th May 2009 TC NWTA issued a call-up letter requiring Northern to attend a public inquiry on 8th June 2009 which was to consider allegations that the operator was in breach of its licence. Mr. Walter Aylen QC on behalf of the Claimants accepted that there are links between ALLL and Northern. Indeed, it is apparent that certain individuals have been involved in both of those companies.

The public inquiry into Northern took place on 8th June 2009, but the company did not appear and was not represented. However, a consultant, Mr. Marsh, attended in order to keep a watching brief on behalf of ALLL. The Third Defendant issued a decision on the day of the inquiry. She decided to revoke the operator's licence. That decision is not the subject of any challenge before this Court. The Commissioner also considered the position of the nominated transport managers for the operator Northern. One of those managers was said to be Mr. Christopher Bennett. In paragraph 4 of her decision letter the Commissioner said that at that stage she was unable to make any findings in relation to Mr. Bennett because he had been unable to attend the public inquiry, but she would give him one further opportunity to attend before her to make further representations or to give evidence. Having heard nothing further from Mr Bennett, on 27th July 2009 the Third Defendant issued a second decision in which she decided that he had lost his "good repute". The letter also pointed out that while the 1995 Act did not give Mr. Bennett an express right of appeal against her decision, he could nonetheless pursue an appeal to the Transport Tribunal.

To say the least, the papers which the Claimants put before the Court are in a muddle. Indeed, basic information about the case, such as the Claim Form, had to be gleaned from the Defendants' bundle. More importantly, paragraph 13 of the Claimants' Statement of Grounds alleged that the First Defendant's decision to call a second public inquiry involved bias, but no particulars were given. That public inquiry had been listed for hearing on 14^th July 2009. On 7^th July the Claimants made an urgent application for a stay of the inquiry. The matter was considered on the papers by Lord Carlisle of Berriew QC sitting as a Deputy Judge of the High Court. On 8^th July 2009 he granted a stay of the inquiry until the determination of the claim for judicial review, but he adjourned consideration of the permission application. The Deputy Judge also directed that if the Claimants were alleging "the appearance of bias" they should clarify that matter by serving an Addendum with reference to authorities by 29^th July 2009.

On 21^st July 2009 the Claimants' Solicitor then turned to TC NWTA informing her that it was intended to join her as a Defendant in the judicial review claim as a "participant in the actual bias which permeates these proceedings". On 27^th July 2009 particulars of bias were served pursuant to the Deputy Judge's Order. The pleading was signed by Leading and Junior Counsel. Many of the particulars served were directed towards an alleged conspiracy between the two Traffic Commissioners and also the Second Defendant against the interests of the Claimants.

On 29^th July 2009 an application notice was served seeking to add TC NWTA as Third Defendant and further interim relief, namely, a stay of the Third Defendant's decision dated 27^th July 2009 revoking the good repute of Mr. Christopher Bennett pending the determination of the existing claim for judicial review. It is to be noted, however, that Mr. Christopher Bennett has at no stage sought to appeal to the Transport Tribunal against the decision of the Third Defendant dated 27^th July 2009. Indeed, he has not applied to be a party to the present claim for judicial review and that claim does not even seek to challenge the Third Defendant's decision.

The matter was considered on 3^rd August 2009 by Mr. Justice Foskett. He ordered that the TC NWTA be added as a Third Defendant and made directions as to the time for service of acknowledgments of service by the Defendants. He also gave directions for the listing of the application for interim relief. That application was to be heard on 13^th August 2009. On 12^th August 2009 the Treasury Solicitor, acting on behalf of the First and Third Defendants, made an urgent application that the question of the grant of any stay should not be dealt with until after the Court had considered whether to grant permission to apply for judicial review. It was argued that the question of whether a stay should be granted involved the same issue as would have to be decided on the application for permission to apply for judicial review, and yet the Defendants had been allowed until 26^th August to file Acknowledgments of Service and Summary Grounds of Defence.

On 13^th August 2009 the matter came before Mr. Justice Walker. The First Defendant gave an undertaking to the Court not to act upon the decision of the Third Defendant dated 27^th July 2009 until further order in the judicial review proceedings. A consent order was made listing the application for permission for a rolled up hearing.

Grounds of Defence were served in September 2009 on behalf of the First and Third Defendants settled by Mr. Sam Grodzinski. In addition, detailed grounds for contesting the claim were served on behalf of the Second Defendant settled by Mr. Gordon Nardell. Both Counsel appeared on behalf of their respective clients in the hearing before me. In summary the Defendants contend that:-

a) permission should be refused on the basis that the proper forum for all the complaints against each Traffic Commissioner is an appeal to the appropriate Tribunal. They contend that the Tribunal has full power of review on the merits and that it is a misuse of the judicial review procedure to circumvent that appeal process;

b) further or alternatively permission should be refused on the basis that none of the proposed grounds for review meet the threshold of arguability; and

c) if nevertheless permission is granted the claim should be dismissed on the merits.

It is convenient next to summarise the statutory framework.

The statutory framework

Traffic Commissioners are statutory office-holders under the Crown, appointed by the Secretary of State: see section 4 of the Public Passenger Vehicles Act 1981 ("the 1981 Act"). By section 4(4) a Traffic Commissioner is required to act under the general directions of and shall have regard to any guidance given by the Senior Traffic Commissioner. Paragraph 7 of Schedule 2 provides that "…the Secretary of State may appoint such persons to act as officers and servants of a Traffic Commissioner as he considers appropriate". Thus, the Secretary of State has established an Office of the Traffic Commissioner ("OTC") for each traffic area, staffed by civil servants who act for and assist the Commissioners in the exercise of their functions. A Traffic Commissioner was formerly a tribunal under the supervision of the Council on Tribunals (see Tribunal and Inquiries Act 1992). Following the abolition of that body, a Traffic Commissioner is now a "listed tribunal" under the aegis of the Administrative Justice and Tribunals Council (see the Tribunals, Courts and Enforcement Act 2007).

The Traffic Commissioners play a key role in the licensing regime under the 1995 Act. They are responsible for considering whether an intending operator satisfies the basic statutory requirements for the issue or extension of an operator licence (i.e. good repute, appropriate financial standing and professional competence) and whether such requirements thereafter continue to be satisfied.

By section 2 of the 1995 Act no person is to use a goods vehicle on a road for the carriage of goods whether for hire or reward or in connection with any trade or business carried on by that person except with an operator's licence. By section 6 an operator's licence is to specify a maximum number of motor vehicles and/or trailers. Section 7 prohibits an operator from using a place as an operating centre for vehicles authorised to be used under his licence unless that place is specified in the licence. By section 8(1) an application for an operator's licence is to be made to the Traffic Commissioner for each area in which the applicant will have an operating centre or centres. The word "area" refers to the traffic area for which a Traffic Commissioner is responsible (see section 58(1)).

In the case of an application for a standard licence a Traffic Commissioner must consider whether the requirements of section 13(3) and (5) are satisfied (section 13(1)). If the Commissioner decides that any of those requirements are not met, then he is obliged to refuse the application (see section 13(11)). Under section 13(3) the Commissioner must be satisfied that the Applicant for the standard licence is of "good repute", has the appropriate financial standing and is professionally competent. Those concepts are defined in more detail in schedule 3 to the 1995 Act. By section 13(5) the Commissioner must be satisfied of a number of matters, including that there are satisfactory arrangements for securing that Part VI of the Transport Act 1968 dealing with drivers' hours and the applicable European Community rules under that Part are satisfied.

Schedule 3 defines in more detail the requirement for professional competence (paras 7-13). In respect of a company or an individual who is not himself professionally competent, it is necessary to employ a transport manager who is of good repute and professionally competent. ("transport manager" is defined in section 58(1)).

Section 26(1) gives the Traffic Commissioner by whom an operator's licence was issued a power to direct that the licence be revoked, suspended or curtailed on any of the grounds set out in that provision. For the purposes of this case I am told that the relevant grounds are:-

"(b) that the licence-holder has contravened any condition attached to the licence; and

(f) that any undertaking recorded in the licence has not been fulfilled…."

Section 26(4) provides that where the existence of any of the grounds set out in sub-section (1) is "brought to the notice of the Traffic Commissioner" then the commissioner must consider whether or not to give a direction under section 26 in respect of that licence.

Section 27 deals specifically with the revocation of standard licences. By sub-section (1) a Traffic Commissioner must direct that such a licence is revoked if at any time it appears to him that the licence-holder is no longer (a) of good repute or (b) of the appropriate financial standing or (c) professionally competent. Before a Commissioner may give a direction under section 27(1) revoking a standard licence, he is obliged to give the licence-holder notice in writing that he is considering such a direction (section 27(2)). By sub-section (3) the notice must state the grounds upon which the Commissioner is considering giving such a direction and that the licence-holder may make written representations within 21 days. Section 27 has effect subject to the right to be heard at a public inquiry under section 29 (see below).

By section 28(1) where under either sections 26(1) or 27(1) a Traffic Commissioner directs the revocation of an operator's licence, he may also order that the person who was the holder of the licence be disqualified, either indefinitely or for a specified period, from holding or obtaining an operator's licence.

By section 29(1) a Traffic Commissioner must not give a direction under sections 26 or 27 in respect of an operator's licence or make an order of disqualification under section 28 without first holding an inquiry if the holder of the licence or the person concerned requests him to do so. Irrespective of whether a right to be heard arises under section 29, the Commissioner also has a power under section 35 to call a public inquiry if he considers that necessary in order to discharge his functions.

Section 29 does not deal with the position of a transport manager. However under Schedule 3, paragraph 15 a Traffic Commissioner must not make a finding in any proceedings under the 1995 Act that a transport manager is not of good repute or is not professionally competent, unless he satisfies himself that the transport manager has been served with a notice stating (a) that the issue of his good repute and professional competence is an issue in the proceedings, (b) the nature of the allegations against him and (c) his right to make representations within 28 days from that notice being served. Where a transport manager makes representations under schedule 3, the Traffic Commissioner must consider them, firstly in deciding whether or not to exercise his discretion to hold an inquiry under section 35, and secondly in determining whether that transport manager is of good repute or professionally competent.

Detailed provisions on the procedure to be followed at a public inquiry are set out in schedule 4 to the Goods Vehicles (Licensing of Operators) Regulations 1995 ("1995 Regulations"). Paragraph 1 sets out the requirements for the notification of inquiries, including adjourned inquiries. A person who has requested an inquiry under section 29(1) is given a right of appearance (para 3(3)). Where a transport manager has made representations in response to a notice under paragraph 15 of schedule 3 to the 1995 Act and the issue of his good repute or professional competence is to be considered at an inquiry, he is entitled to appear at that inquiry (para 3(4)). Subject to the provisions of schedule 4, the Traffic Commissioner is to determine the procedure followed at an inquiry (see paragraph 5(1)). Paragraph 5(7) defines the circumstances in which a Traffic Commissioner may proceed with an inquiry in the absence of any person entitled to appear. It is also agreed that in conducting such an inquiry a commissioner is under a duty to observe the usual principles of natural justice and procedural fairness. It is well established that when a Commissioner is contemplating acting under sections 26 or 27 of the 1995 Act, the burden lies upon the Commissioner to be satisfied that one of the grounds for (inter alia) revocation is made out. No burden of proof lies upon a licence-holder to satisfy the Commissioner to the contrary. (See Muck It Limited and Others v. Secretary of State for Transport [2005] EWCA Civ 1124, paragraph 69).

A decision of a Commissioner to revoke a licence under section 26 or 27, or a decision to disqualify under section 28 is appealable, formerly to the Transport Tribunal (see section 37(2) and (4) of the 1995 Act). Although the legislation does not give any right of appeal to a transport manager against a finding by a commissioner that he has lost his repute, the Defendants point out that in practice the Tribunal accepts appeals from transport managers and makes formal determinations and orders thereon (see for example paragraph 15 of the Second Defendant's Detailed Grounds). That is accepted by Mr. Aylen QC on behalf of the Claimants. Indeed, that practice is amply evidenced in the present case by the decision of the Transport Tribunal which allowed the appeal by Mr. Godden, the Fourth Claimant.

The Transport Tribunal was established by the Transport Act 1985. On 1^st September 2009 its functions in relation to appeals from Traffic Commissioners were transferred to the Upper Tribunal (Administrative Appeals Chamber - Transport). (See Transfer of Functions (Transport Tribunal and Appeal Panel) Order 2009 SI 1885). By paragraph 8(1) of schedule 4 to the 1985 Act "…the Tribunal shall for the purposes of the exercise of any of their functions have full jurisdiction to hear and determine all matters whether of law or of fact." That provision survives the transfer of the functions of the Transport Tribunal to the Upper Tribunal by virtue of paragraph 17(1) inserted into schedule 4 of the 1985 Act (by SI 2009 No. 1885). By paragraph 17(2), the Upper Tribunal has power (a) to make such order as it thinks fit or (b) to remit the matter to the Traffic Commissioner for rehearing and determination by the Commissioner in any case where the Tribunal considers it appropriate. (The provisions of paragraph 9 of schedule 4 to the 1985 Act prior to that amendment were to similar effect). Thus, it is common ground that an appeal to the Tribunal is a full appeal on the merits.

More detailed provisions governing the procedure of the Transport Tribunal are set out in the Transport Tribunal Rules 2000 (SI 2000 No. 3226). Under rule 12 an appeal to the Tribunal is made by serving a written notice setting out the grounds of appeal. Under rule 13(1) the Secretary to the Tribunal is required to serve a copy of the notice of appeal on the Traffic Commissioner. However, a Traffic Commissioner may not be a party to an appeal (Rule 14(1) and (2)).

Rule 13 of the Transport Tribunal Rules 2000 also requires that the Secretary of State be notified of any appeal to the Tribunal. The Secretary of State has a right to be added as a party to the appeal (see rule 13(2)). In relation to appeals from 1^st September 2009, the same scheme is to be found in paragraphs 2, 5, 7 and 8 of schedule 1 to the Tribunal Procedure (Upper Tier Tribunal) Rules 2008 (SI 2008 No. 2698). Paragraph 49 of the Second Defendant's detailed Grounds states that the Secretary of State does not participate in every appeal to the Transport Tribunal. He might for example be represented in a case in which the grounds of appeal raise an important issue of law or policy. Thus, a significant number of appeals proceed with only the Appellant being represented. That was the case when the Claimants made their appeal to the Tribunal in 2008.

From the former Transport Tribunal an appeal lay to the Court of Appeal, but not upon a question of fact or locus standi (see paragraph 14(1) and (2) of schedule 4 to the 1985 Act for appeals prior to 1^st September 2009). With effect from 1^st September 2009 a decision of the Upper Tribunal is appealable only on a point of law (see section 13 of the Tribunals, Courts and Enforcement Act 2007).

In this Court, there was a suggestion by the Defendants that the Claimants had failed to give the Tribunal a proper picture as to the extent of the disclosure which they had received from VOSA prior to the inquiry in April 2008 and that that had tainted some of the Tribunal's conclusions on that subject. However, Mr. Nardell accepted that any criticisms of that nature could have been dealt with by the Secretary of State appealing to the Court of Appeal, and that opportunity had not been taken. He therefore accepted that this Court could not go behind the conclusions of the Tribunal in its judgment.

Administrative framework

The organisation of the OTC and Traffic Commissioners was helpfully described in unchallenged passages of the witness statement of Stephen Jordan (employed by VOSA as the head of the Office of the Traffic Commissioner and licensing).

VOSA was formed in 2003 as an executive agency of Department for Transport. The 2003 reorganisation created a structure ensuring a greater degree of separation between OTC and those undertaking compliance work, that is investigatory and enforcement work by Traffic Examiners, Vehicle Examiners and the Regional Intelligence Unit ("the RIU"). OTC staff are civil servants employed by VOSA and are bound by the Civil Service Code of Conduct issued on 6^th June 2006. Therefore, although OTC staff depend upon VOSA for payroll and administrative purposes, their sole role is to support the Traffic Commissioners. They are not involved in any other area of VOSA's activities. In particular, they undertake no investigatory or enforcement activity. The services provided by the OTC staff have been formalised in a Service Level Agreement made in August 2008 between the senior Traffic Commissioner and VOSA's Chief Executive.

The OTC is organised into seven separate regions each with its own administrative staff and offices. These regions include South Eastern and Metropolitan and also North Western.

RIU personnel are not involved in either front line investigation or enforcement work. The function of an RIU is to receive information from VOSA examiners and investigations staff, to sift and assess that information and then to prepare a brief. That brief, together with recommendations, is then passed to the OTC. OTC staff treat the brief from the RIU as a draft. Normally OTC prepares its own brief for the relevant Traffic Commissioner which includes all the information proposed to be considered by the Commissioner or at any public inquiry. After receiving the brief, the Traffic Commissioner decides on whether any action should be taken, and if so what. That decision is entirely a matter for the relevant Traffic Commissioner. He or she is not bound by any recommendation or information received from officials of the Department for Transport.

If the Traffic Commissioner should decide to take action which may lead to a public inquiry, a copy of the brief is always sent to the relevant operator. It is open to the operator to submit other documents. The scope of the inquiry or any decision to be made lies in the hands of the Traffic Commissioner. His powers are not limited by the contents of the brief. Some of the material he receives may come from investigation or enforcement officials of VOSA, for example, maintenance reports and reports by Traffic Examiners or Vehicle Examiners. Further information may come from the operators themselves, for example financial information or company records. Other information may be contained in objections from members of the public.

Factual background to the First Defendant's decision of 11^th May 2009

Much of the factual background for the present proceedings can conveniently be taken from the judgment of the Transport Tribunal of 3^rd November 2008.

Events leading to the decisions in May 2008 to revoke and disqualify

ALLL is the holder of a standard national goods vehicle operator's licence authorising 20 vehicles and 20 trailers, with an operating centre at Queenborough, Kent. Mr. Alan Bennett is the managing director of that company and at the material time Mr. Godden was the Transport Manager for the company.

On 3^rd June 2005 a driver employed by ALLL was killed in a traffic accident while driving one of the company's vehicles. The absence of a tachograph chart in the vehicle at the time of the accident triggered an investigation by VOSA into potential infringements concerning tachographs and drivers' hours. On 6^th June 2005 1,438 tachograph charts were seized. They covered the period 1^st December 2004 to 1^st June 2005. Other related records and documents were also seized or obtained from the company and other investigations ensued. As a result numerous offences of the falsification of tachograph records were revealed. Because of the number of offences revealed and the need for other evidence, such as CCTV and timed sightings, the investigation concentrated on an analysis of charts for the period mid-February 2005 to May 2005.

On 12^th May 2006 a verdict of accidental death was recorded at an inquest into the driver's death. Because of other investigations, VOSA were unable to complete their own investigation until the inquest had been concluded and it had become apparent that no further action was to be taken against the company. On 15^th May 2006 ALLL were informed that the investigation by VOSA into drivers' hours would continue. Once it was completed the investigation by VOSA confirmed that there had been large-scale fraudulent use of tachographs involving the majority of the company's drivers. By this stage some 6,000 statements and exhibits had been obtained.

13 drivers of the company were interviewed in the latter part of 2006. It was accepted in evidence that it might have proved difficult to conduct these interviews but for the assistance of Mr. Alan Bennett who was present at each interview. After the conclusion of the interviews the decision was taken to prosecute 12 of the drivers. The drivers were convicted on guilty pleas on various dates between 2^nd April 2007 and 24^th September 2007.

On 8^th February 2008 the First Defendant sent letters to each of the Claimants. In those letters the Commissioner gave notice that he would be considering taking action under sections 26, 27 and 28 and that he would exercise his power under section 35 to hold a public inquiry. That inquiry was to start on 3^rdand 4^th April 2008, less than 2 months later. The letters summarised the grounds for taking action, including breach of an undertaking given by the company in its application for an operator's licence to make proper arrangements to comply with the rules on drivers' hours and tachographs. The letters referred to a report received from VOSA which alleged a failure to comply with that undertaking and summarised the action being considered by the Commissioner. The letters also stated "requests for adjournments will only be granted in exceptional circumstances. Any request for an adjournment should be made in writing and should give supporting reasons."

The Claimants instructed Mr Malcolm (or Jim) Marsh to represent them at the inquiry. He is an independent Transport Consultant who has acted in that capacity since 1996. Before that date he had been a police officer with the Hampshire Constabulary and indeed a traffic officer for some 22 years.

In paragraph 9 of his witness statement, Mr. Marsh explains that after he had considered the documentation supplied with the call up letters by VOSA and having taken instructions from Mr. Alan Bennett, it became apparent to him that considerable further disclosure of material was required from VOSA. By way of example, in a letter to the Traffic Commissioner dated 3^rd March 2008 Mr. Marsh rightly pointed out that it would be necessary for the Commissioner to consider the role of the company in respect of the offences committed by the drivers and it would therefore be essential for the company to produce to the public inquiry all relevant evidence of their compliance systems, their systems for work and driver scheduling and other related documentation. However the relevant documentation had been seized by VOSA officers during the course of their investigation and so far none of that material had been returned to ALLL. Mr. Marsh said that it was essential that as a first step the relevant documentation should be made available to the company, it would then be necessary for the company to assess and analyse that information and to prepare its case.

Mr. Marsh also referred in his letter to a VOSA Examiner, Mr. Ward. It was said that at the date of the fatal road accident the company had been working closely with Mr. Ward with regard to advice on systems for compliance with both drivers' hours rules and the working time directive. Mr. Ward had also made an analysis of a significant number of tachograph charts previously submitted by the company's drivers and prepared a report. It was said that his analysis of those earlier charts had not revealed any infringements similar to those allegations now in issue. It was therefore suggested that Mr. Ward might well be in a position to provide the Commissioner with evidence of the actions that the company had been taking following the previous public inquiry in 2004 and prior to 2005. The Commissioner was asked to consider requiring Mr. Ward to attend the inquiry so that he might give evidence on these matters. Mr. Marsh pointed out that the inquiry was due to take place in only four weeks' time and therefore an adjournment was necessary in order for the Claimants' case to be properly prepared.

That perfectly reasonable request met with a wholly unreasonable response on the following day. The reply from the OTC said that the matter had been referred to the Traffic Commissioner in the western traffic area, acting as a Deputy Traffic Commissioner in the SEMTA. The letter announced that the request for an adjournment had been refused. It was said that the public inquiry could proceed by considering the circumstances surrounding the convictions. However, if during the inquiry it appeared to the Commissioner that wider issues needed to be addressed, then he could adjourn and give appropriate directions at that stage. The findings of Mr. Ward were said to be a matter of record from an earlier inquiry and there was no need for him to be called as a witness. With regard to the request for documents identified by Mr. Marsh the letter merely stated that if Mr. Marsh needed sight of any evidence, then the lawyer acting on behalf of VOSA could be expected to make copies available in a timely fashion. Self-evidently that response failed to deal properly with the requests made by Mr Marsh for documents and for an adjournment. Plainly the documents were relevant and yet no thought was given to the making of directions. The letter failed to address the important issues of the timescale within which that material would be provided and for Mr. Marsh to take instructions and prepare his clients' case.

On 19^th March 2008 Mr. Marsh wrote to the Office of the Traffic Commissioner again. He explained that he had contacted VOSA's solicitor and that arrangements had been made to meet with the Traffic Examiner, Mr. Lynch, on 14^th March 2008. He added that the request for information had been restricted to those documents which were the property of the company and had been removed from their premises and were relevant to the proceedings. Both he and Mr. Lynch had worked on a list of documents. Once the final list of possibly relevant exhibits had been produced, it was found to contain 2300 separate exhibits, comprising more than 4000 individual documents. Mr. Marsh then went on to explain the vast scale of the exercise involved in VOSA obtaining physical copies of these documents. Indeed Mr. Lynch had said that it would take a number of days and that he would telephone on 17^th March to let the Claimants know the anticipated date of production. The letter written on 19^th March stated that Mr. Marsh had received no further communication as at that date from Mr. Lynch and was not receiving any responses to messages left for him.

At that stage the inquiry was barely two weeks away. On this occasion the application for an adjournment was referred to the First Defendant. A letter in reply was sent on 20^th March 2008 stating that he had refused the adjournment request "on the basis that he will be able to make an informed decision based on the evidence which is available to him. If during the public inquiry matters are raised which are a surprise to the operator, then the Traffic Commissioner will consider an adjournment request of the public inquiry." It is obvious that the First Defendant's response failed to give any proper consideration to Mr Marsh's letter or to basic principles of fairness. It failed even to recognise that the Claimants needed sufficient time in which to prepare themselves for a public inquiry which was clearly important to ALLL and those working for it. Mr Marsh was not merely concerned about the operator being taken by surprise at the inquiry. He was asking for the essential raw materials which would enable his clients to prepare their case and time to do so. I would not have expected an experienced and senior tribunal to have made the same sort of elementary errors as had already been committed in the letter of 4^th March 2008. I regret to have to say that the correspondence reveals a lack of fairness and objectivity on the part of the First Defendant in his handling of the Claimant's participation in the process. It should have been plain to the Senior Traffic Commissioner at this stage that the inquiry had to be adjourned.

It appears that copies of the documentation were not made available to the Claimants until the week of 24^th March 2008. Obviously, that was far too late to be of any real use in preparing for the inquiry.

The public inquiry did take place on 3^rd and 4^th April 2008. The First Defendant's written decision was issued on 29^th May 2008. In that decision he decided that ALLL had lost its good repute and therefore the licence should be revoked under section 27. Secondly, because of a failure by the operator to comply with its undertakings to have proper arrangements in place to comply with drivers' hours rules and tachograph regulations the operator's licence was revoked under section 26 of the 1995 Act. Thirdly, on a finding that Mr. Alan Bennett was no longer of good repute, he was disqualified from holding a goods vehicle operator's licence or from being a director or partner in a business holding such a licence for a period of 12 months (pursuant to section 28 of the 1995 Act).

The Commissioner's findings were set out in paragraph 60 of his decision. In summary, he decided that there had been a systematic failure by the drivers to comply with rules on drivers' hours and tachographs. He then went on to reject Mr. Alan Bennett's evidence that he had known nothing of the drivers' activities, because he and Michael Godden should and could easily have discovered the illegal activities of their drivers if "they had bothered to check the tachograph records with the work sheets and other documentation available to the operator". He also found that "the weight of the evidence is such, that Mr. Bennett's assertions that he did know nothing of the activities of his company's drivers stretches credibility to an extent that I am able to give very little weight to his testimony at the Public Inquiry". In his view "the fact that insufficient checks were carried out on drivers' activities, that some of the journeys did not tie up with the documentation, and Mr. Bennett's failure to give a credible explanation for the events which led to the convictions against his company's drivers, lead me to conclude, on balance, that I must consider whether ALLL and Alan John Bennett its managing director have lost their good repute".

The Commissioner then applied the test set out in Transport Tribunal decision 2003 Appeal No. 217, namely "Does this operator deserve to be put out of business?" He decided that "the evidence points to an affirmative answer". "Mr. Bennett's lame assertions and attempts to absolve himself from any responsibility for the activities of the company's drivers, when set against the VOSA evidence, do him little credit." He then went on to find that it would be both proportionate and appropriate, not only to revoke the operator's licence but also to disqualify both the operator and Mr. Bennett from holding a licence for 12 months. In paragraph 62 of his decision the Commissioner "considered how much credit can be afforded to the operator for ensuring compliance in the future, but the evidence of Alan John Bennett in both his assertions and his assurances, are unconvincing given the nature of the evidence before the Public Inquiry and the drivers' hearings."

The hearing before the Transport Tribunal

The Transport Tribunal had the advantage of seeing transcripts of the proceedings before the Traffic Commissioner. They took the view that the central issue which the Commissioner ought to have focussed on was whether the company, and those associated with its management, knew or ought to have known of the drivers' malpractices.

Paragraph 2 summarised some key parts of the 2008 public inquiry:

a) Paragraph 2(xx): "Mr. Lynch said that he did not have any suspicion that Mr. Bennett had anything to hide and he expressly stated that VOSA were not offering any evidence which implicated the Appellant company, together with the drivers, in making false tachograph records. He was asked whether, when he looked at the documentation which the Appellant company had, together with the tachographs he felt that the company should have been aware that the drivers were doing something wrong. He replied that he could only speculate and was told by the Traffic Commissioner that he should not do so."

b) Paragraph 2(xxi): "Mr. Lynch admitted that he had not seen nor had he asked to see the tachograph analysis carried out on behalf of the Appellant company. He accepted that to do the level of analysis performed by VOSA the Appellant company would have needed documents which were not immediately available to it".

c) Paragraph 2(xxviii) dealt with a part of the cross-examination of Mr. Bennett, during which Mr. Thomas the Advocate appearing for VOSA began to ask detailed questions about a particular journey. "Initially Mr. Bennett said that he was not going to comment. Then he explained, in effect, that he did not want to take time while in the witness box to establish the answer. The Traffic Commissioner began to say "if you can't give an answer…" when Mr. Bennett interrupted to make it clear that he could give an answer. He was interrupted in turn, no doubt before he could go on to repeat that he was being asked about documents which he had not seen for nearly four years."

d) Later on in paragraph 2(xxviii) "Mr. Bennett replied that he had been dealing with Patrick Ward and if it was now being suggested that the Appellant company should have had a particular system in place this was something which had never been suggested by Mr. Ward. Mr. Thomas pointed out that Mr. Ward was not there to answer…". That of course refers back to a VOSA examiner whom the Claimants had asked to be called before the Commissioner.

(e) Paragraph 2(xxxii): the Tribunal recorded questions put to Mr. Bennett by the First Defendant. "The Traffic Commissioner then pointed out that for whatever reason the drivers were committing offences and he went on to suggest that there had been a breach of the undertaking because the rules as to drivers' hours had not been observed. The Traffic Commissioner added: "You have an absolute responsibility to ensure that your drivers comply with the law….The minute you have a problem you are one hundred per cent liable.""

In summary the grounds of appeal argued by Counsel on behalf of the Claimants were:-

a) the Claimants were denied a fair hearing because of the failure to adjourn to enable VOSA to disclose all relevant documents and the Claimants to have an adequate opportunity to consider them when preparing their case;

b) they were denied a fair hearing because of the failure to adjourn so as to enable Mr. Ward to be called to give evidence; and

c) the Traffic Commissioner had misdirected himself as to the nature of the undertaking given by the operating company which influenced his adverse assessment of the evidence of Mr. Bennett and Mr. Godden.

In paragraph 5 of its decision, the Tribunal said of Mr. Marsh's request for an adjournment on 3^rd March 2008:-

"In our view this was a sensible and reasonable request which focussed attention on what should have been the central issue in the Public Inquiry, namely: was there documentary evidence which established the culpability of the Appellants and, if not, how was their culpability established? In our view it was a request which could not possibly be refused if justice was to be done. It could and should have alerted the Traffic Commissioner to a serious problem with the way in which VOSA was seeking to present the case against the Appellant. By that stage VOSA had done a great deal of work on the case as a whole. They had assembled a formidable case against the drivers, which relied on material from a range of different sources. But in our view it is quite clear from the conduct of the Public Inquiry that VOSA had overlooked the fact that many of the documents, which prove the case against individual drivers, would not have been available to the Appellants. Instead of reassessing the material, in order to show that proper consideration of the documents available to Mr Bennett and Mr Godden would have led to the conclusion that the drivers were working unlawfully, either because they were being compelled to do so or because (as they had said), they chose to do so, VOSA adopted the "broad brush" approach of saying "the drivers were clearly operating in breach of drivers' hours so the management must have known". It should have been obvious to VOSA from the start that the case against the Appellants had to focus on showing, preferably from the documents, why the management must have known that the drivers were falsifying their tachographs. It should also have been obvious that they had to do that by assembling a different set of documents, i.e. those which were readily available to the management of the Appellant company. In addition they should have set out to demonstrate why a proper consideration of those documents would have led to the conclusion that the management must have known that the drivers were exceeding their permitted hours. Instead they relied on "guilt by association" with the drivers, when they should have concentrated on what would have been apparent from the documents, the way in which the drivers were paid and the other information available to the Appellant."

In paragraph 6 of its decision the Tribunal said that the letter of 4^th March 2008 refusing an adjournment had completely missed the point which had been carefully explained in the letter from Mr. Marsh. The decision to refuse an adjournment was plainly wrong. The Appellants had not seen any of the relevant documents for several years. It was imperative in the interests of fairness that the documents should have been made available to them.

In paragraph 7 of its decision the Tribunal added that the terms in which the adjournment had been refused "imposed a continuing duty on the Traffic Commissioner to keep the need for an adjournment under constant review". They then set out the evidence given at the Public Inquiry in some detail because it clearly demonstrated that there were four occasions on which it should have been apparent to the Traffic Commissioner that it was necessary, at the very least, to offer an adjournment:-

a) Firstly, the Commissioner should have been alerted by Mr. Lynch's evidence, as summarised in paragraph 2(xx) of their decision, to the fact that VOSA's preparation of its case against the Claimants was seriously defective. Indeed, if an adjournment had been offered at that stage the Claimants might have chosen to proceed, because any "proper assessment" of the case against them would have led to the conclusion that the case could not be proved.

b) Secondly, in paragraph 9 of its decision the Tribunal referred back to its earlier paragraph 2(xxi), the evidence recorded by Mr. Lynch and the Traffic Commissioner's intervention at that stage of the inquiry. The Tribunal criticised the Commissioner for not appreciating three points: (1) that VOSA had failed to put forward any satisfactory evidence of the system actually used by the Appellants although the burden of proof fell on them, (2) that it was unreasonable to expect the Appellants to go into any detail when they had been deprived of access to the very documents which were required for a detailed presentation, and (3) that this was a topic upon which Mr. Ward was in a position to give important evidence.

c) In paragraph 10 of its decision the Tribunal then referred to the exchanges summarised in paragraph 2(xxviii). The Tribunal took the view that Mr. Bennett's statement that he was not going to comment in the absence of an opportunity to consider the documents left the Traffic Commissioner with two alternatives. In the interests of fairness, the obvious course would have been to adjourn the inquiry to enable both sides to give proper consideration to the documents. Alternatively if the inquiry was nevertheless to continue, the Traffic Commissioner ought to have concluded that Mr. Bennett would have been able to provide a credible explanation given proper time to consider the documents, in the absence of very compelling evidence to the contrary.

d) The fourth occasion related to the cross-examination conducted by the Solicitor for VOSA (see paragraph 11 of the Tribunal's decision). On this aspect the Tribunal stated "it should have been clear to the Traffic Commissioner that the lack of proper presentation on the part of VOSA and the refusal to give Mr. Bennett time to consider the documents had created an unfair and unsatisfactory situation in which it was impossible for either of them to make their points effectively. Once again the remedy was obvious. Fairness and justice demanded that the Public Inquiry was adjourned to enable both sides to prepare and present their cases properly."

In paragraphs 12 to 14 of its decision the Tribunal examined the refusal to allow an adjournment so as to enable the Traffic Examiner Mr. Ward to be called to give evidence at the public inquiry. The Tribunal was satisfied that in refusing the adjournment on 4^th March 2008 the Deputy Traffic Commissioner had completely misunderstood the purpose of seeking that evidence by wrongly suggesting that it was an attempt to challenge the convictions. It was obvious from Mr. Marsh's letter that that was not the purpose. The Tribunal concluded in paragraph 14:-

"The unfairness, which resulted from this decision, should have been all too apparent once Mr Bennett began to give evidence. He said, ….that he had spent a lot of time setting up systems with which Mr Ward was happy, hence the request that he should give evidence. He repeated the point in cross-examination…Again we have to say that immediately this evidence was given it was incumbent on the Traffic Commissioner to offer to adjourn so that Mr Ward could be called. The only alternative was for the Traffic Commissioner to accept that Mr Bennett was correct when he said that Mr Ward was satisfied with the systems, which the Appellants had put in place."

It is apparent from the passages of the Tribunal's decision to which I have referred, that the First Defendant was criticised by the Tribunal on two alternative bases. It was held that he had acted unfairly to the Claimant on several occasions in failing to grant or offer an adjournment, alternatively that if the inquiry was to proceed, then on certain issues he ought to have drawn inferences which would have been favourable to the Claimants.

In paragraph 15 of its decision the Tribunal dealt with a separate ground of appeal arising from paragraph 2(xxxii) of its decision. The Tribunal held that the Commissioner had misdirected himself as to the undertaking previously given by the operator, in particular by stating that the company had an absolute liability to ensure that the drivers complied with the law. In paragraph 16 the Tribunal said "In our view the expression used in the present case, namely "an absolute liability", coupled with the Traffic Commissioner's approach to credibility on this very issue means that it is impossible to describe this as "more an excess of emphasis than a misdirection". They added "in addition it seems to us that Mr. Bennett was misled by this incorrect description of the legal position" (i.e. by the Traffic Commissioner during the inquiry).

In paragraph 17 of its decision the Tribunal held "We have identified several occasions during the Public Inquiry when, in our view, the Traffic Commissioner was duty bound to offer an adjournment. Having failed to do so he was plainly wrong to approach his assessment of the credibility of Mr. Bennett and Mr. Godden in the way in which he did." The Tribunal therefore held that it was driven to reach the conclusion that all but one of the Traffic Commissioner's findings could not stand. The only finding which could be supported was the very first finding, namely that there had been a systematic failure by the drivers to comply with drivers' hours and tachograph rules. As a result the appeal was allowed and the decision quashed.

There then followed some very important paragraphs in the Tribunal's reasoning which deserve to be quoted fully:

"18. We are extremely conscious of the age of this case and regret the delay in delivering this decision, caused by the volume of material and the pressure of other work. We have carefully considered whether we can properly substitute our own decision having made an assessment of the available material. We are driven to the conclusion that we cannot properly follow this course. The reason is that the way in which the public inquiry was conducted means that the most important material is not available to us. We do not know whether a careful examination of the work given to individual drivers will lead to the conclusion that the work could only be done, in the allotted time, by driving in breach of the regulations. Nor do we know whether a reasonable examination of the documents, which were available to the Appellants after the event, could and should have led to the conclusion that they knew that drivers were working in excess of permitted hours. It feels that we feel compelled to remit this case for a further hearing, but, in doing so, we urge caution and careful consideration in relation to two matters.

19. First, there is, in our view, no point in holding a further public inquiry until VOSA have made a proper assessment of the documents reasonably available to the Appellants at the material time. Any documents recovered from possession of the Appellants would fall within this category, unless they came into the possession of the Appellants after any relevant comparison would have taken place. In relation to documents coming from others it would be for VOSA to show that it would have been reasonable to expect the Appellants to have obtained those documents. The object of the whole exercise should be to demonstrate why it should have been clear, when individual jobs were allocated that they could only be performed by working in excess of permitted hours. Alternatively or in addition the object should be to show how a reasonable examination of the documents after the event should have demonstrated to the Appellants that drivers were working in excess of permitted hours. Unless the documents support one or both of these points we question whether any further public inquiry, so long after the event, could be justified.

20. Second, if there is to be a second public inquiry it is essential that it is conducted by someone who is prepared to abandon all previous findings in relation to the Appellants in connection with the present public inquiry. In particular Mr Bennett and Mr Godden are each entitled to have their credibility assessed afresh and on the basis that all the findings against them in the present proceedings have been invalidated by the unsatisfactory preparation and presentation of the case against them coupled with the unfairness of having to make their case in the absence of the relevant documents."

The Tribunal ordered that the appeals be allowed and "the matter remitted for consideration of a rehearing."

Events after the Tribunal's decision

On 16^th March 2009 Mr. Patrick Ward, a Senior Traffic Examiner, prepared a report to the RIU. In that report he referred once again to the method by which drivers were paid. But he then went on to assess traffic control sheets to see if the allocation of work to drivers could have been carried out within the relevant hours regulations. A sample of four drivers was considered. In response to concerns expressed on behalf of the Claimants by Mr. Aylen QC, Counsel for VOSA confirmed that if the inquiry were now to proceed, the allegations against the Claimants would be confined to this sample of four drivers, on the information currently available to VOSA. Clearly if any wider allegations were in future to be made against any of the Claimants proper notice would have to be given with all relevant supporting information and adequate time to consider the material. The report also referred to driver records in respect of Mr. Darryl Thomas and Mr. Ryan Bennett, suggesting that they had carried out continuous duties of between 9 and 18 days on six occasions and stating that those were matters which should have been observed from the records by the transport manager.

The RIU then prepared a brief dated 23^rd March 2009 for submission to the OTC. The first part of that document still continued to rely upon material which had been used in the much earlier investigation against the drivers. However, the document also summarised the recent report prepared by Mr. Ward. Then the following recommendation was made: "From the report submitted, it is hard to believe that the company had no knowledge of what was going on and I feel that this operator should be re-called before the Traffic Commissioner."

The team leader subsequently made the following recommendation: "The latest STE report on the 2005 driving records [a reference to Mr. Ward's report] has raised doubts on the company's assertion that they had no knowledge of their drivers' illegal activity. The STE has raised a number of questions which only the operator can respond to. My concern is the company will argue that as these alleged breaches took place almost four years ago they cannot now recall the then management processes for ensuring their undertakings were fulfilled. A full new STE check may have been an option to establish if systems are now in place, however, the company applied last July to surrender this licence which was refused under section 16(4) of the 1981 Act." The report concluded by saying that "on balance" a resumed public inquiry was recommended.

That mention of section 16(4) should have referred to the 1995 Act, which allows a Traffic Commissioner to refuse to comply with a request to terminate an operator's licence if he is considering giving a direction in respect of that licence under either section 26 or section 27. In his witness statement Mr. Alan Bennett explains that following the decision of the First Defendant the Claimant company had decided to cease to trade as a haulage company and was operating instead a freight forwarding business. However he has added that the company wishes to be able to retain the ability to recommence operations as a haulier in the future.

On any view, the recommendation made by the team leader, especially after the cogent criticisms by the Transport Tribunal, was somewhat tentative, if not misdirected. It concluded that the information available raised "questions" and did not expressly address the central question as to whether the burden of proof could be discharged by VOSA in accordance with the judgment of the Transport Tribunal. It would appear from paragraph 33 of his witness statement that the First Defendant also had some doubts about the adequacy of the material with which he had been presented. In paragraph 33 he states:

"Before making my decision on whether to call a further public inquiry, I confirmed with the Team Leader at the Eastbourne RIU, Andy Toth, that VOSA had been requested to comply with paragraph 19 of the Transport Tribunal's decision. Andy Toth confirmed to me that all the matters referred to in that paragraph had been considered by VOSA, the result being that VOSA believed that there was sufficient evidence to put before a rehearing of the case at a public inquiry to deal with the matters raised by the Transport Tribunal."

Clearly, on that account nothing of substance was added by VOSA to the reports which the Commissioner had before him when he took his decision to continue proceedings under the 1995 Act.

The First Defendant made his decision to call a further public inquiry on 7^th April 2009 (see para 34 of witness statement). Nevertheless it took over a month, that is to say until 11^th May 2009, for letters to be sent out to the First Claimant and the other persons affected notifying them of the fresh inquiry. Even then, the letters gave just two months' notice that the inquiry would be held on 14^th July 2009. The letter stated that the inquiry would "give the licence-holder the opportunity to make any representation as they may wish as to why the licence should not be revoked, suspended or curtailed." The letter summarised the grounds for action and the steps being considered. The Commissioner stated that he had received a further report from VOSA and "having made reference to paragraph 19 of the Transport Tribunal decision" he directed that "it indicates that the additional matters warrant a further Public Inquiry…." A copy of that report was attached to the letter.

The Ferrero and Falmouth cases

The Defendants submit that the complaints raised by the Claimants can and should only be dealt with through the statutory public inquiry process and if necessary by an appeal to the Upper Tribunal. They cited R v. Falmouth and Truro Port Health Authority ex parte South West Water Ltd [2001] QB 445. There, the Court of Appeal placed particular reliance upon an earlier decision of that Court in R v. Birmingham City Council ex parte Ferrero Ltd [1993] 1 All ER 530, where at page 537 Taylor LJ held:

"These are very strong dicta, both in this Court and in the House of Lords as cited, emphasising that where there is an alternative remedy and especially where Parliament has provided a statutory procedure it is only exceptionally that judicial review should be granted. It is therefore necessary, where the exception is invoked, to look carefully at the suitability of the statutory appeal in the context of the particular case."

Subsequently at pages 538-9 Taylor LJ added that a central question for the Court is what, in the context of the statutory provisions, is the real issue to be determined and whether the alternative statutory remedy is suitable to determine that issue.

In the Falmouth case at p 472 E, Simon Brown LJ stated that in cases like ex parte Ferrero and Falmouth, the need to safeguard the public, even sometimes at the expense of a party, is likely to be the paramount consideration. In particular he held "in deciding whether, exceptionally, to allow an application for judicial review, the Judge should never lose sight of this. Questions of convenience, expedition and effectiveness should be assessed accordingly." Likewise at page 473D Simon Brown LJ stated:

"The lesson to be learnt is, I suggest, this. The critical decision in an alternative remedy case, certainly one which requires a stay, is that taken at the grant of permission stage. If the applicant has a statutory right of appeal, permission should only exceptionally be given; rarer still will permission be appropriate in a case concerning public safety. The judge should, however have regard to all relevant considerations which typically will include, besides any public health consideration, the comparative speed, expense and finality of the alternative processes, the need and scope for fact finding, the desirability of an authoritative ruling on any point of law arising, and (perhaps) the apparent strength of the applicant's substantive challenge."

However, I also note that at page 473A Simon Brown LJ identified two issues, including the wording and validity of the abatement notice, which could properly have been dealt with by proceedings for judicial review, rather than an appeal to the Magistrates' Court.

Similar comments were made by Pill LJ. At page 476F he agreed with Simon Brown LJ's general conclusion that having regard both to public health considerations and the existence of the statutory right of appeal, permission to apply for judicial review should only exceptionally be given. It is noteworthy that the Court of Appeal were particularly concerned in that case by the fact that the initial decision to grant permission to apply for judicial review, combined with a stay of the enforcement proceedings under the Public Health Act of 1936, had effectively determined the dispute in favour of the Applicant for judicial review. Even if in that case the issues had been resolved in the Health Authority's favour ultimately, that would have been of no practical significance on the facts of that case (see [2001] QB 445 at page 476G). If anything, Pill LJ went further than Simon Brown LJ, in that he questioned whether matters of convenience and expedition should be allowed to permit proceedings by way of judicial review the effect of which would be to circumvent or, even subvert, a detailed statutory procedure. He added that if the statutory intention is to provide that any appeal is to be, for example, to a Magistrates' Court, the aim should be to make that remedy effective, rather than to surmise that it is so ineffective that judicial review should be permitted. In his view the remedy of judicial review should not be treated as a default procedure. Consequently he took the view that there is "a very high burden on a party claiming, in the context of public health, that the statutory remedy would be ineffective before he can expect permission to apply to be granted." (See [2001] QB 445 at page 477C-E).

Grounds of challenge to the First Defendant's decision of 11 May 2009 which are unarguable

Before embarking upon the grounds for challenge, I am bound to say that I do agree with the comments by Mr. Grodzinski in paragraph 5 of his skeleton, which referred to the wide variety of complaints advanced by the Claimants, many of which are put in terms which are difficult to understand and/or appear to bear little relationship to any established ground of challenge in public law. Likewise, the numerous witness statements served by the Claimants as recently as November 2009, mainly contain evidence related to the alleged merits of the case to be put forward against the Claimants at a public inquiry. The unclear manner in which the Claimants have put forward their various points has not helped the Court. However, I have been assisted by the detailed Grounds of Defence served by the Defendants in identifying the grounds of complaint. Unfortunately, in several instances the Claimants' skeleton argument did not even condescend to respond to the Defendants' arguments. In this judgment I have focussed upon those challenges which were in fact argued orally at the hearing before me, but I have also endeavoured to address grounds of complaint which have been raised in the Claimants' written material.

Failure to consult prior to May 2009 call-up letter

At paragraph 3.7 of the Claimants' skeleton it was faintly suggested that the First Defendant failed to consult with the Claimants on the material he had received before reaching the decision to hold a further public inquiry. This contention is plainly unarguable. In the Falmouth case the Port Health Authority had served an abatement notice under section 80 of the Environmental Protection Act 1990 alleging a nuisance under the Public Health Act 1936. Prior to service of that notice, the authority had written to the Applicant stating that it had received complaints that the applicant's sewage outfall scheme was prejudicial to health and a public nuisance to users of a watercourse in the vicinity of that outfall. The letter also said that the Authority were investigating the matter and invited the Applicant to provide any observations. In reply the Applicant asked for an opportunity to view any scientific or medical evidence in the Authority's possession. The authority, however, did not answer that letter prior to serving the abatement notice.

The Court of Appeal held that the statutory scheme did not require any prior consultation with a potential recipient of such a notice. The Court then rejected the submission that a legitimate expectation of consultation had been created by the correspondence, holding that only the clearest of assurances could have given rise to such an expectation. The Court also expressed the view that the Health Authority in such cases should be wary of being drawn into any process of consultation prior to taking statutory action, in view of its wider duty to the public at large with respect to the abatement of nuisances and the protection of public health (see [2001] QB 445 at pages 458-459 and 475-476). In the present case the statutory scheme does not impose any obligation upon a Traffic Commissioner to consult with licence-holders or other parties who might be affected by action being considered under sections 26 to 28 of the 1995 Act. Furthermore no expectation of consultation was created by any correspondence or statement made by or on behalf of the First Defendant, or by virtue of anything stated in the judgment of the Transport Tribunal. This ground is plainly unarguable.

Error as to burden of proof

The second complaint related to part of the First Defendant's letter dated 11^th May 2009 in which he stated that he would be holding a public inquiry so as to give the licence-holder "the opportunity to make any representation as they may wish as to why the licence should not be revoked, suspended or curtailed." It is submitted that this indicated a reversal of the burden of proof which would otherwise lie upon VOSA to make good the grounds for taking action against the licence-holder or other relevant persons. Even if I considered that there was any substance at all in this allegation, it is plain that a criticism of this kind falls well within the ambit of the appeal process created by the 1995 Act. Such a complaint ought in the first instance to be made at the public inquiry, if the proceedings were to continue. Even if a Traffic Commissioner should make that error in a final decision, the matter could readily be dealt with by an appeal to the Upper Tribunal. In any event, I see no substance at all in the criticism of that passage of the First Defendant's letter, if the letter is read fairly and properly as a whole. This ground is unarguable.

Disclosure

The third area of challenge relates to the subject of disclosure. At the outset I should deal with a submission made for the Defendants. In paragraph 3.1 of the Detailed Grounds served by the First and Third Defendants, it is said that the Transport Tribunal was given a false impression by the Claimants because of a failure to disclose to the Tribunal the fact that numerous documents were in fact copied by VOSA and supplied to the Claimants in the week of the 24^th March 2008. That of course was the week before the hearing which was due to start on the 3^rd April. In paragraphs 12 and 13 of his skeleton Mr. Grodzinski repeated that point and added that the Claimants had failed to deal with that matter in their skeleton. A similar argument was presented in paragraph 49 of the skeleton for the Second Defendant.

I see no merit in this point at all. If the decision of the Tribunal on 3^rd November 2008 is read fairly and as a whole, there is no basis for thinking that the Tribunal was under the impression that the Claimants had not received substantial disclosure from VOSA. Rather the thrust of the Tribunal's criticisms of the unfair process to which the Claimants had been subjected, was that the disclosure had taken place very late in the day and therefore the Claimants had been substantially prejudiced in their preparation for a public inquiry of great importance to them. (See for example paragraph 2(xxii) and (xxiv) and also paragraphs 3, 9, 10 and 11).

In paragraph 33 of his witness statement the First Defendant says this:

"In deciding whether to call a further public inquiry, I understood from VOSA that the evidence which had been referred to as undisclosed to the Claimants before the public inquiry of the 3^rd to 4^th April 2008 had, in fact, been disclosed."

This sentence is unhappily phrased, particularly if read in conjunction with the detailed grounds of defence served on behalf of the First and Third Defendants. If this passage had been intended to suggest that the Tribunal had been misled by the Claimants so as to undermine the conclusions which the Tribunal had reached, but which were not the subject of any appeal, I would have been concerned, particularly as this was a matter which the First Defendant unequivocally says he took into account when deciding to call for a further public inquiry. However, I am satisfied that when the passage is read in context, the First Defendant was doing no more than to say that the documents which had been disclosed at a very late stage prior to the first inquiry had, by May 2009, been in the possession of the Claimants for some considerable time. Read in that way that part of his witness statement is not open to legal criticism.

I turn to the criticisms made by the Claimants on disclosure. The first relates to the adequacy of the general disclosure which had taken place by the time that the claim for judicial review had been launched. The argument is based upon a number of paragraphs contained in the witness statement of Mr. Marsh (in particular paragraphs 35, 37, 39, 40, 41 and 42). Having seen the report produced by Mr. Ward in March 2009, Mr. Marsh identifies categories of documents which he says would be necessary in order to support the line of argument advanced by VOSA. He says that VOSA has failed to disclose those documents and secondly that no attempt has been made by the agency to determine when any of those relevant documents would have come into the possession of the First Claimant. He therefore argues that there has been no real attempt by VOSA to comply with the approach laid down in the judgment of the Transport Tribunal. Complaint is also made about those parts of Mr. Ward's statement in this Court which describe the disclosure process carried out by VOSA prior to the first inquiry (see in particular paragraphs 32, 34, 37-40 and 45 of his statement and paragraph 4.3 of the Claimants' skeleton). Mr. Ward says that VOSA provided very substantial disclosure in late March 2008. In paragraph 75 of his witness statement Mr. Marsh complains firstly, that material produced by Mr. Ward in March 2009 relies upon documents which had not been disclosed a year earlier and secondly, that even at this stage VOSA had still failed to disclose a significant amount of documentation.

The complaints about disclosure are wholly misconceived and unarguable in these judicial review proceedings. It is plain from the authorities that I have already referred to, that these complaints should be dealt with through the dedicated statutory procedure, initially in front of the Traffic Commissioner appointed to conduct any public inquiry and thereafter on appeal to the Upper Tribunal. In addition, I should record that in paragraph 50 of the detailed grounds served by VOSA, the agency states that it intends to give disclosure, in accordance with paragraph 19 of the Tribunal's decision, of any document which has not already been disclosed and from which VOSA would invite the Traffic Commissioner to draw inferences. The complaints by the Claimants are all matters which can and should be "policed" by the Traffic Commissioner and ultimately by the Upper Tribunal.

Indeed, it is significant that after receiving the First Defendant's letter of 11^th May 2009, Mr. Marsh wrote on 26^th May to the Traffic Commissioner stating that on Counsel's advice there was likely to be an application for further substantial disclosure of material from VOSA. Paragraphs 20 and 21 of the Case Note dated 8^th June from Counsel to the Commissioner stated that further substantial disclosure would be sought. Regrettably, the OTC did not have an opportunity to deal with that. Instead, two days later the Claimants sent a pre-action protocol letter to the Traffic Commissioner. Curiously, in that letter very little is said about problems of disclosure. That matter is only dealt with in paragraph 5.7 in relation to one particular document to which I will shortly come. The Traffic Commissioner responded to the pre-action protocol letter on 16^th June 2009. The Claimants then started the present proceedings for judicial review on 29^th June 2009 rather than pursuing their complaints through the proper procedures before a Traffic Commissioner.

A complaint about specific disclosure is set out in paragraph 3.1 of the Claimants' skeleton. It relates to an RIU brief which was not disclosed to the Claimants in the papers sent to them with the Commissioner's letter of 11^th May 2009. The document in question was first disclosed to the Claimants as exhibit 8 to the witness statement of Mr. Ward on 23^rd September 2009. In paragraph 32 of his witness statement Mr. Brown makes it clear that in deciding whether or not to call a further public inquiry he had before him both the brief from the RIU dated 23^rd March 2009 as well as the earlier report of Mr. Ward. The latter document was enclosed with the First Defendant's letter of 11^th May 2009 but the former was not. On the face of it, the brief received by the First Defendant ought to have been forwarded to the Claimants. I do not see how a distinction could be drawn between the brief referred to in Mr. Jordan's witness statement and the submission document prepared in this instance by the RIU. The problem with the Claimants' challenge is that they are trying to argue that the failure to disclose the RIU document by the time they started their judicial review proceedings is a basis for asking the Court to order that the inquiry should not be held at all. They argue that the inquiry process would have been unfair in the absence of the documentation revealed in the High Court. However, now that the document has been disclosed to the Claimants they are able to make any submissions or to call any evidence as they wish at a public inquiry. In any event, when making their proposed application to the Commissioner for a disclosure order, the Claimants could, and should, have included "briefs from RIU". If necessary, an appeal could have been made to the Upper Tribunal. For these reasons I conclude that all the complaints on disclosure are wholly unarguable.

Adequacy of VOSA's evidence

The fourth area of challenge concerns the adequacy of the material which has been put together by VOSA in order to persuade the Commissioner that a further inquiry is justifiable having regard to paragraphs 18 to 20 of the Tribunal's decision. The complaints are put in a variety of ways. First in paragraph 4.6 of the Claimants' skeleton it is said that the notice of the inquiry indicates that Mr. Lynch will be called as a witness, suggesting that the "old material" which he had presented at the first inquiry will be rehearsed yet again, and implying a failure to acknowledge and deal with the criticisms of VOSA's case at that inquiry. Secondly in paragraph 4.7 of the Claimants' skeleton reliance is placed upon the witness statements, in particular of Mr. Marsh, to show that the material provided by VOSA comes nowhere near establishing that statutory intervention is justified. Similarly, Mr. Aylen QC submitted that from the documents provided by VOSA it can be seen that the Agency has failed to produce any evidence relating to the real issues defined by the Tribunal.

In the pre-action protocol and in the Claimants' Statement of Grounds complaints of this nature were linked to wide ranging submissions that the proposed public inquiry would constitute an abuse of process. I have no hesitation in rejecting all these various complaints. The proper forum for such complaints is an inquiry before a Traffic Commissioner, if the proceedings are to continue. Then, if the Commissioner should decide those matters against the Claimants they have a right of appeal to the Upper Tribunal. It would be entirely wrong for this Court to intervene by way of judicial review in order to deal with issues of this nature, having regard to the principles on alternative remedies. I also accept the submissions made by the Defendants that on this point an analogy may properly be drawn with authorities rejecting the use of judicial review in order to deal with an alleged abuse of process by bringing or continuing criminal proceedings (Sharma v. Brown-Antoine [2007] 1 WLR 780, 788-9 and 795; R (on the application of Securiplan Plc and Others) v. Security Industry Authority [2008] EWHC 1762 (Admin) at paragraphs 23-24). An independent Traffic Commissioner would be fully able to decide the merits of an argument that the action he or she is being invited to take by VOSA would constitute an abuse of process. Of course, that is a separate question from the use of judicial review to deal with bias, whether actual or apparent, on the part of a particular Commissioner, which would debar that person from dealing with decisions to initiate, stop, or continue with, proceedings under the 1995 Act. A decision that a particular Commissioner may not deal with a particular matter on grounds of bias, does not impinge upon the separate question as to whether a particular complaint ought to be dealt with by one of the Traffic Commissioners (with an appeal to the Upper Tribunal), rather than the High Court on judicial review.

I also accept the submission made by the Defendants that the 1995 statute does not set any particular threshold for the making of a decision by a Traffic Commissioner to initiate proceedings against the holder of a licence. The Claimants have made no submissions on that aspect and have not referred to any authority which deals with that matter. Instead they have asserted that, while on the one hand this Court cannot decide issues of fact of the kind revealed by the witness statements, nevertheless the Court is able to resolve what is described as "the evidential issue" by accepting Mr. Marsh's evidence. Although it is plain that a Traffic Commissioner would be better equipped to deal with such matters, and there are no good reasons as to why exceptionally they should be dealt with by judicial review, I should make it clear that, in any event I do not accept that on the material put forward by the Claimants, the "evidential issue" should be resolved in their favour in this Court. The material they rely upon does not establish that it would be irrational for a Commissioner to consider taking action under sections 26 to 28 in reliance upon the material supplied by VOSA in 2009. If the proceedings under the 1995 Act do continue, a public inquiry would be the only proper forum for the evidence to be tested and evaluated. This ground of challenge is unarguable.

Stale evidence

In paragraph 3.10 of the Claimants' skeleton it is submitted that "a particular vice in this case was caused by the RIU's mention of the payments to the drivers by way of percentages". That was a reference to a part of the RIU's report which referred to the scheme for paying drivers by a percentage of the work carried out by the vehicles. The Claimants insist that this was being treated by VOSA as new evidence, whereas it was not a new matter at all. It had been canvassed in the evidence and in the decision of the 2008 planning inquiry. This ground is misconceived and is wholly unarguable. First, this aspect was not treated by the RIU or by the Commissioner as a new matter. Secondly there was no reason as to why the attention of the Commissioner should be confined to new evidence not previously considered at the 2008 public inquiry. The Tribunal did not impose any such limitation on any further action to be taken. Certainly the Tribunal criticised the approach which had been taken to the material used at that inquiry and they set out the approach which ought to be taken. But that does not prevent evidence obtained for the 2008 inquiry from being used at any fresh inquiry if it is used in a manner which accords with the Tribunal's decision. In any event, it should have been obvious to the Claimants that the Tribunal has decided that the method of payment to the drivers remains a relevant consideration. That is plain from the last sentence of paragraph 5 of the Tribunal's judgment in which it was said that VOSA "should have concentrated on what would have been apparent from the documents, the way in which the drivers were paid and the other information available to the Appellants". This complaint should never have been raised.

In relation to all the various complaints set out in paragraphs 73 to 86 above I refuse permission to apply for judicial review for the reasons I have given.

Allegations of bias

As I have indicated, when the claim form was first filed, the Claimants failed to provide any particulars of their allegations of bias. That omission was not rectified until particulars were given in a document dated 22^nd July 2009. The particulars are wide ranging if not extravagant. For example, it was alleged that the provision of administrative staff by VOSA to the OTC undermined the principle of separation of powers so that actual bias on the part of the Traffic Commissioners became inevitable (para 22). Secondly, it was suggested that the First Defendant had shown actual or apparent bias in the way in which he had dealt with the Claimants at the first inquiry and also in his letter of 11^th May 2009 dealing with the second inquiry. Thirdly, it is suggested that the Third Defendant had also displayed actual or apparent bias in her handling of the proceedings relating to Northern. Fourthly, the Claimants attempted to suggest that the First and Third Defendants, together with VOSA, had connived in order to take action under sections 26 and 28 against ALLL and/or Northern and/or related personnel. As Mr. Aylen QC accepted, the last allegation in particular amounted to an accusation of bad faith, or even misfeasance, against a number of public officials including officials acting in a judicial capacity. He recognised that that was a very serious allegation to make, and that although civil cases are determined on a single standard of proof, the balance of probabilities, the nature of that allegation would affect the degree of cogency to be expected in order to discharge the burden of proof on the civil standard (see In re B (Secretary of State for Northern Ireland Intervening) [2008] 1 WLR 1499 page 1499, at pages 1508-9).

After the luncheon adjournment on the first day of this hearing, Mr. Aylen QC told the Court that he was withdrawing allegations of actual bias on the part of Mr. Brown and connivance against all Defendants. However, he insisted that his client would still allege actual or apparent bias on the part of Ms. Bell, the Third Defendant, and also an appearance of bias on the part of the First Defendant when deciding that there should be a further public inquiry to consider action under sections 26 to 28.

I should make it clear, however, that had it been necessary to do so, I would have rejected the contentions of systemic bias based upon staffing arrangements and the process for reporting issues to the Traffic Commissioners, for the reasons set out in paragraphs 57-61 of the Second Defendant's detailed Grounds of Defence. In AM Richardson v. BETR 2000/65 the Transport Tribunal accepted that the Traffic Commissioner is a public authority and thus subject to control by section 6 of the Human Rights Act 1988. The Tribunal also accepted that the nature of proceedings before a Commissioner involves the determination of civil rights and obligations and that a Traffic Commissioner constitutes an independent and impartial tribunal. They also held in the alternative that, even if a contrary view were to be taken on that last point, the requirements of Article 6(1) were still met because of the right of appeal to a tribunal which exercises full jurisdiction as to both facts and law. Mr. Nardell submits that although the Tribunal in Richardson did not consider staffing arrangements, the nature of those arrangements does not result in any breach of Article 6. I agree. In their skeleton the Claimants did not even attempt to argue the contrary.

Whether the First Defendant should not have taken the decision to hold a second inquiry

In paragraph 3.9 of the Claimants' skeleton it is submitted that the First Defendant should have recused himself from taking any part in the process of reconsideration following the decision of the Transport Tribunal on two grounds:

a) That to do so was unfair given his findings on the credibility of both Mr. Bennett and Mr. Godden in his Decision dated 29^th May 2008; and

b) Paragraph 20 of the judgment of the Transport Tribunal.

Mr. Aylen QC made it clear in his oral submissions to the Court that insofar as his argument was based upon bias, he was only relying upon apparent, and not actual, bias. The correct approach to apparent bias is set out in Porter v. McGill [2002] 2 AC 357 (see paragraphs 100 to 103 of the speech of Lord Hope of Craighead at pages 493-4). As a result, the Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the Tribunal was biased. The House of Lords made it clear that earlier suggestions that the test should be one of a "real danger" of bias should no longer be followed and instead the "real possibility" test was confirmed. At paragraph 100 Lord Hope agreed with dicta which had criticised the use of the "real danger" test as placing too much emphasis upon the Court's view of the facts and inadequate emphasis upon the public perception of the matter.

Mr. Grodzinski cites the decision of the Court of Appeal in AMEC Capital Projects Ltd v. Whitefriars City Estates Ltd [2004] EWCA Civ 1418. That case arose from a building contract dispute. An initial adjudication under the Housing Grants, Construction and Regeneration Act 1996 was set aside. A second adjudication was made and subsequently an issue arose as to whether it had been improper for the Adjudicator in the first proceedings to act as the Adjudicator in the second. It was argued that he should not have acted because of apparent bias, given the findings he had made in the first adjudication. In his judgment Lord Justice Dyson said:

"19. The risk of apparent bias may need to be considered where the decision of the Tribunal is allowed on appeal, a rehearing is ordered and a question arises whether the rehearing should be conducted by the same or a different Tribunal. It arose in the rather unusual circumstances of the present case when the RIBA had to consider whether to nominate Mr. Biscoe to decide the same issue as he had purported to decide in the first adjudication, namely whether AMEC was entitled to recover the sum that it was claiming for work done prior to the termination of its contract. The question that falls to be decided in all such cases is whether the fair-minded and informed observer would consider that the Tribunal could be relied on to approach the issue on the second occasion with an open mind, or whether he or she would conclude that there was a real (as opposed to fanciful) possibility that the Tribunal would approach its task with a closed mind, predisposed to reaching the same decision as before, regardless of the evidence and arguments that might be adduced. Usually, the reason for sending a case back for a rehearing will be that there is fresh evidence or a new point, or the appeal Court has held that the Tribunal made some mistake which, it is to be expected, will not be repeated on the rehearing. The present case is unusual in that the Court did not find that Mr. Biscoe had made any mistake in arriving at his first decision, and, so far as the RIBA were aware, there was no fresh material.

20. In my judgment, the mere fact that the Tribunal has previously decided the issue is not of itself sufficient to justify a conclusion of apparent bias. Something more is required. Judges are assumed to be trustworthy and will understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons. That is not to say that, if it is asked to redetermine an issue and the evidence and arguments are merely a repeat of what went before, the Tribunal will not be likely to reach the same conclusion as before. It would be unrealistic, indeed absurd to expect the Tribunal in such circumstances to ignore its earlier decision and not to be inclined to come to the same conclusion as before, particularly if the previous decision was carefully reasoned. The vice which the law must guard against is that the Tribunal may approach the rehearing with a closed mind. If a judge has considered an issue carefully before reaching a decision on the first occasion, it cannot simply be said that he has a closed mind if, the evidence and arguments being the same as before, he does not give as careful a consideration on the second occasion as on the first. He will, however, be expected to give such reconsideration of the matter as is reasonably necessary for him to be satisfied that his first decision was correct. As I have said, it will be a most unusual case where the second hearing is for practical purposes an exact rerun of the first.

21. The mere fact that the Tribunal has decided the issue before is therefore not enough for apparent bias. There needs to be something of substance to lead the fair-minded and informed observer to conclude that there is a real possibility that the Tribunal will not bring an open mind and objective judgment to bear. As was said in Locabail, the mere fact that the Tribunal had previously commented adversely on a party or found his evidence unreliable would not found a sustainable objection."

However, Lord Justice Dyson also contrasted the general position with one of the appeals in Locabail, namely Timmins v. Gormley, in which it was held by the Court of Appeal that there was a sufficient possibility of bias in a personal injuries case tried by a Recorder who had published articles in which he had expressed "pronounced pro-claimant anti-insurer views". His reference to Ealing London Borough Council v Jan [2002] EWCA Civ 329 also shows that a different view may be taken, depending on the strength of any adverse comment which has previously been made by the same tribunal. I also note the remarks of the Divisional Court in R v Hampshire County Council ex parte K [1990] 2 QB 71, 79D, which bear some similarity to the comments of the Transport Tribunal in paragraph 20 of their decision.

Under paragraph 9 of Schedule 4 to the Transport Act 1985 (prior to its amendment in 2009), the Transport Tribunal was empowered to remit the matter to the "Traffic Commissioner for rehearing and determination by him". It was not argued on behalf of the First Defendant that the effect of that statutory provision was to permit only the First Defendant to consider the remitted matter. Indeed the First Defendant has decided not only that a second public inquiry should be held but that that inquiry should be conducted by another Traffic Commissioner. Likewise it has not been argued on behalf of the First Defendant that the prior decision as to whether any further proceedings should be taken under sections 26 to 28 could only have been determined by the First Defendant and by no other Traffic Commissioner. Plainly, the effect of remitting a case could not be to render nugatory the powers in sections 26 to 28 in a case where it was obvious that a particular Traffic Commissioner had to recuse himself from any further involvement in the matter.

The order of the Transport Tribunal remitted the matter for "consideration of a re-hearing". In the present case the Traffic Commissioner was not simply deciding whether a fresh public inquiry should be held. In paragraphs 18 and 19 of their decision the Tribunal firstly, urged caution and careful consideration as to whether any further proceedings should be taken at all and secondly, they doubted whether any further inquiry would be justified so long after the events, unless the available evidence supported at least one of the two approaches set out in paragraph 19. During the hearing, the Defendants accepted that the matters referred to in paragraphs 18 to 20 of the Tribunal's decision were relevant considerations which the Commissioner was obliged to take into account (see also paragraph 39 of the Second Defendant's Detailed Grounds of Defence).

Against that background I turn to consider paragraph 34 of Mr. Brown's witness statement. Having explained why he had decided to call a further public inquiry, the First Defendant says this:

"As a result of the Transport Tribunal's decision, I determined that the further public inquiry should be dealt with by a Deputy Traffic Commissioner and not by me."

In oral argument Counsel for the First Defendant confirmed that the reference to the Tribunal's decision was indeed a reference to paragraph 20 of the Tribunal's decision. Lest there be any doubt about the matter, in the response of the First Defendant dated 16^th June 2009 to the pre-action protocol letter it was stated that:

"For the avoidance of doubt, and to ensure compliance with the rules of natural justice, the public inquiry will be conducted by a Commissioner who has had no previous dealings with this case."

In pursuing their application for judicial review the Claimants were entitled to rely upon that response (see R v. Tower Hamlets LBC ex parte Chetnik Ltd [1988] AC 858, 878).

It is necessary to see the decision made by the First Defendant on 11^th May 2009 in context. The appeal against the First Defendant's decision had been allowed by the Transport Tribunal with the effect that the operator's licence of ALLL had been restored and the adverse findings on repute had been set aside. In summary, the effect of the Tribunal's decision was that the procedure followed by the First Defendant at the first public inquiry had been unfair in a number of serious respects, that he had failed to appreciate the fundamentally flawed nature of VOSA's case against the Claimants, and that he had made a basic error of law in misinterpreting the Claimant's undertaking as having imposed an absolute liability. Accordingly, none of his findings of fact against the Claimants could be allowed to stand. When the matter was remitted it was necessary for a decision to be taken as to whether any proceedings under sections 26 to 28 should continue at all. Thus, it is plain that the decision-maker had to make an initial assessment of VOSA's evidence against the Claimants. His decision was not a purely procedural one, such as whether a matter should be dealt with by written representations as opposed to a public inquiry, after someone else had already taken the decision to initiate (or continue) proceedings. Therefore, the issue arises as to whether the First Defendant could decide that, in the interests of natural justice and so as to comply with the Tribunal's decision, the second public inquiry should be dealt with by a Deputy Traffic Commissioner and not by himself, and yet not take the same view in relation to the decision as to whether proceedings against the Claimants should continue at all. It is not suggested that he even took that matter into account.

Mr. Grodzinski on behalf of the First Defendant submits firstly that the Transport Tribunal did not decide that the matter had to be considered by a different Commissioner and secondly that paragraph 20 of the Tribunal's decision only dealt with the question of who should conduct any second inquiry, and not the prior question of whether the proceedings should be continued. In my judgment, the first submission, although factually correct, does not assist. There is nothing before the Court to suggest that the Tribunal was asked to determine that point. In any event, it has been raised in this Court and has to be dealt with. The second submission puts forward a distinction without substance. True enough, paragraph 20 of the Tribunal's decision relates to the conduct of any further public inquiry. However, that process could not sensibly be separated from the prior decision as to whether proceedings under sections 26 to 28 should be continued. The decision that those proceedings should continue had to be based on at least some consideration of the evidence upon which VOSA were proposing to rely (which in this case would inevitably result in the holding of a further public inquiry). Moreover, the Tribunal had been "extremely conscious" of the age or staleness of the matter and emphasised the need for caution and careful consideration. In particular, any Commissioner would have had to bear in mind the Tribunal's decision that the whole approach of VOSA's case against the Claimants had been misconceived (something which the First Defendant had failed to recognise) and to decide whether the evidence now being presented by VOSA could satisfy at least one of the requirements in paragraph 19 of the Tribunal's decision.

It was then submitted on behalf of the First Defendant that the last sentence of paragraph 34 of the Commissioner's witness statement went further than he needed to go. That sentence simply represented a self-denying ordinance. Consequently, it was said that it did not follow as a matter of logic or legal principle that the First Defendant was legally unable to take the prior decision that actions under sections 26 to 28 should be pursued. I am afraid that I am unable to accept that submission. There is no suggestion in the First Defendant's witness statement that his decision that another Commissioner should deal with the public inquiry was gratuitous. There is no evidence to support the submission. Moreover, it is contradicted by the First Defendant's response to the pre-action protocol letter to which I have referred, in which the explanation was given that the matter would be conducted by a different Commissioner in order to comply with the rules of natural justice. I do not think that in these proceedings the First Defendant is entitled to go back on that explanation. I do accept the submission that the First Defendant did not recuse himself from conducting the second public inquiry because of any actual bias. However, it must follow from the explanation given by the First Defendant that he did accept that he should recuse himself on the grounds of apparent bias in accordance with Porter v. McGill. There was no other principle of natural justice with which he could have been seeking to comply, and none has been suggested. In my judgment it does follow that the same approach should have been taken by the Commissioner to the making of the closely related decision as to whether the proceedings under sections 26 to 28 against the Claimants should continue at all. It follows that this ground of challenge is made out, subject to the alternative remedy issue raised by the Ferrero and Falmouth cases.

My conclusion on this part of the case also rests on a broader consideration of the facts, alongside my reasoning on paragraph 34 of Mr. Brown's witness statement. In my judgment, the tests for establishing apparent bias have also been satisfied. The starting point here must be the well-established principle that a complaint of apparent bias is not made out merely by pointing to adverse findings against a party or witness by a Judge or Tribunal in an earlier case or earlier decision. However, in this case there are a number of special circumstances. Firstly, the findings made by Mr. Brown against the Claimant company and Mr Bennett were very robust and critical, not only in terms of his credibility as a witness, but also the disapprobation of Mr Bennett's "lame attempts" to defend himself and his failure to accept responsibility for his drivers (see para 52 above). These findings were also directly linked to the serious unfairness of the procedure the Commissioner had followed before and during the first inquiry. Secondly, the First Defendant made a significant error of law at the first inquiry in his approach to the undertaking given by ALLL in connection with its operator's licence. At the first public inquiry the Traffic Commissioner made the strong, if not extreme, statement to Mr. Bennett that "you have an absolute responsibility to ensure that your drivers comply with the law…the minute you have a problem you are one hundred per cent liable". In paragraph 16 of its decision the Transport Tribunal were not prepared to treat that as a mere "excess of emphasis", but rather regarded it as a clear misdirection. They also considered that this error was linked to the Commissioner's approach to credibility. Thirdly, the Commissioner had also failed to spot the serious flaw in the way VOSA's case against the Claimants had been formulated, even to the extent that, as the Tribunal indicated, that case could not be proved (see para 8 of the decision). Fourthly, whoever was to take the decision as to whether proceedings should be continued against the Claimants had to act in a cautious manner and give careful consideration to the revised case upon which VOSA was proposing to rely. Fifthly, VOSA's report to the Commissioner in March 2009 was tentative, if not misdirected, (see paragraphs 66-68 above) and he even found it necessary to ask VOSA whether paragraph 19 of the Tribunal's decision had been complied with. The Commissioner's witness statement indicates that the answer he was given revealed nothing of substance and yet he was content to proceed on that basis.

Having set out the circumstances of the case, I then turn to the second part of the test set out in Porter v. McGill. As the Court of Appeal said in In Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 701 para. 37, "bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve." In my judgment the circumstances I have described would lead a fair-minded and informed observer to conclude that there was a real possibility that the Commissioner was biased. In summary, they show that (a) in the first inquiry the First Defendant had failed to consider procedural, evidential and legal issues which were fundamental to the case in a fair and objective manner and (b) a real, rather than a fanciful, possibility that his consideration of VOSA's 2009 material was similarly affected. In my judgment, the circumstances of this case crossed the "ill-defined" line referred to in paragraph 88 of the judgment in Locabail ([2000] QB 451, 496) and amounted to apparent or unconscious bias.

Throughout, I have borne in mind the Defendants' submission that the various challenges can and should be considered in the public inquiry before the Deputy Traffic Commissioner and should not be dealt with by judicial review. In the Falmouth case Simon Brown LJ pointed out that often the critical decision in an alternative remedy case is that taken at the grant of permission stage, particularly if a stay is required. In the present case, however, the matter has been dealt with as a rolled-up hearing upon the consent of the parties. Nevertheless, I still have to consider whether exceptionally this particular ground of challenge should be treated as one appropriate for judicial review.

Firstly, the main consideration is whether to grant permission and/or relief would prejudice the protection of public safety. The present case, however, is unusual in that it relates to some fairly stale allegations. It appears that VOSA were proposing to rely upon their investigation of incidents occurring as long ago as 2005, and not any investigation of ALLL's systems prior to its change of operation in 2008. It cannot be said that the delay in dealing with these matters in the present case is attributable to the Claimants. Instead, time was taken initially in the investigation of allegations against individual drivers. However, once that process was completed, time was then wasted by the misconceived way in which VOSA assembled and presented its case at the first public inquiry, necessitating the successful appeal to the Transport Tribunal, which was not concluded until November 2008. Given those circumstances and the other considerations to which I am about to refer, I do not think that the protection of public safety is an overriding or determinative consideration on the particular facts of this case. Secondly, there is the effect of the flaw I have identified and of the relief to be granted. The effect of a quashing order would be that the decision as to whether any further action should be taken under sections 26 to 28 will have to be retaken properly by another Traffic Commissioner. I do not see why that would result in any prejudice to the protection of public safety, as compared with the issue being litigated at the public inquiry before the alternative Traffic Commissioner and, if necessary, pursued on an appeal to the Upper Tribunal. Thirdly, the issue of a failure to take into account a material consideration or apparent bias has not required the High Court to be involved in fact finding to any substantial degree, or to resolve conflicts of fact on the witness statements. Fourthly, it has not been suggested that the Deputy Traffic Commissioner, or the Upper Tribunal, would be in a better position to deal with those issues than the High Court. Fifthly, although it was suggested by Mr. Nardell that this ground of challenge could be dealt with before the Deputy Traffic Commissioner as a preliminary issue, he did accept that it was doubtful as to whether a finding on that issue adverse to the Claimants could be the subject of a separate appeal to the Upper Tribunal. In other words, it would probably be necessary, according to Mr. Nardell, for the Commissioner to consider and reach final conclusions on the merits of all the other issues involved in the proceedings under the 1995 Act, before any further appeal proceedings could be contemplated. Mr Grodzinski did not disagree. Sixthly, having regard to the fact that the parties agreed that a rolled up hearing should take place and that this particular issue has been fully argued, I consider that it is in the interests of the parties, and in the public interest, that a ruling on the matter should now be given and that effect should be given to that ruling. In my view, the Claimants are entitled to a judgment from this Court that the decision as to whether proceedings should be continued against them at all was vitiated by apparent bias. They were, and remain, entitled to have that fundamental decision taken in a lawful manner. For all these reasons, the suggested alternative remedy is not suitable and, exceptionally, intervention by this Court is justified.

Although I have accepted that on the special facts of this case a remedy by way of judicial review should be granted, that does not detract from the strong principle that, save in exceptional cases, grounds of challenge should be put to the Traffic Commissioners and, if necessary pursued by an appeal to the Upper Tribunal.

For these reasons, I grant permission to apply for judicial review to challenge the First Defendant's decision of 11^th May 2009, but solely on the basis that he should not have taken that particular decision. Having granted permission I will make an order quashing that decision.

I now turn to consider the claim against the Third Defendant.

The facts leading to the Third Defendant's decision of 27^th July 2009

I summarise the chronology from documents presented during the hearing from Mr. Aylen QC.

On 21^st September 2007 an application was made to the TC NWTA for an Operator's Licence for Northern. The application stated that the operating centre would be at Rose Villa, George's Lane, Banks, Southport. In order to satisfy the statutory requirements on professional competence, the application also stated that Mr. Christopher Bennett would be the transport manager and would be responsible for operating centres not only at Rose Villa but also at Gate C, Rushendon Road, Queenborough, Kent, the operating centre for ALLL. The application form was signed by Mr. Ryan Bennett. On the same date both Mr. Ryan Bennett and Mr. Christopher Bennett signed a further application form giving details of a transport manager to be named on a standard licence. In this instance the application was made by ALLL rather than Northern. The application proposed that Mr. Christopher Bennett would be the transport manager and gave as the operating centres not only the Queenborough address in Kent for ALLL but also the Rose Villa, Southport address.

On 28^th November 2008 an RIU submission report was prepared. Page 4 of the report referred to the application for a licence in September 2007 in which Christopher Bennett had been nominated as transport manager. The author noted that at one stage Mr. Jason Bunce had also been nominated as a transport manager in August 2008. However in November 2008 Mr. Bunce had written to VOSA advising that he had resigned from the position of transport manager so as to leave Mr. Christopher Bennett as the sole transport manager for Northern. Subsequently a report was prepared on the 15^th May 2009 by Mr. David Hartness who is a Vehicle Examiner employed by VOSA. His report raised concerns about the arrangements for maintenance of Northern's vehicles.

On 11^th May 2009 the Third Defendant caused call-up letters to be sent out for a public inquiry to take place on 8^th June 2009 in order to consider various irregularities relating to Northern. The letter intended for Northern was mistakenly addressed to ALLL. At one stage a fanciful suggestion was made that that indicated bias on the part of the Third Defendant. That submission was not pursued in argument before this Court. A letter dated 11^th May was also sent to Mr. Christopher Bennett calling him to the same public inquiry. The letter was sent to an address in Sheerness namely 28 Brambles Close, Minster-on-Sea. I was told that that address was Ryan's address. At all events, Christopher Bennett did receive that letter because on 22^nd May 2009 he returned to the Third Defendant's office an acknowledgment stating that he would be attending the public inquiry on 8^th June 2009. The letter to Christopher Bennett summarised matters which he was asked to deal with, including the issuing of prohibition notices, maintenance shortcomings and concerns regarding his repute and professional competence. The letter went on to summarise the evidence which the Traffic Commissioner would be asked to consider, including statements made in connection with the application for a licence to the effect that Christopher Bennett would be the transport manager responsible for the vehicles on the operator's licence.

On 28^th May 2009 Christopher Bennett sent a letter to the Third Defendant. He explained that although he had intended to be present at the inquiry called for 8^th June, he had subsequently realised that he was committed on that date to cover for staff absence at his "other place of work" in Kent and would therefore be unable to attend. He apologised for the error but expressed the hope that the representations he was making in the remainder of the letter would deal sufficiently with matters insofar as he was concerned. He added that if, however, the Traffic Commissioner considered it necessary for him to attend personally, he was willing to do so.

He then explained that when he signed the application form TM/1(G) he was under the impression that that was to be an application made by ALLL for a licence to operate vehicles from the Rose Villa, Southport address. Mr. Bennett then referred to an earlier letter which he had sent to the Traffic Commissioner dated 12^th January 2009 in which he stated that he was, and to his knowledge never had been, the transport manager for Northern. He said that he had been unaware that the North Western Traffic Area had considered him to be the nominated transport manager for that company. Consequently, as soon as he became aware of that situation, he had immediately sent a letter in order to clarify the position. He therefore said that the matters to be raised at the public inquiry were not issues for which he had had any responsibility. He confirmed that he was still in the employment of ALLL and remained the nominated transport manager for that company. Lastly, he assured the Traffic Commissioner that he had always taken his responsibilities as a transport manager very seriously and would not wish his repute to be called into question.

The Court was shown an undated letter from Christopher Bennett which was received by the North West Traffic Area office on 14^th January 2009. I have assumed that that was the letter sent by Christopher Bennett on 12^th January 2009. In that document he stated that he had never been transport manager for Northern. He asked the Area Office to confirm to him in writing that he was not the "licence-holder". On 13^th January 2009 the OTC wrote to Northern at its Sheerness address stating that Christopher Bennett, then specified on Northern's operator's licence as transport manager, was no longer in their employment. The letter referred to a condition on a standard operator's licence which stipulates that the licence-holder must notify the Traffic Commissioner of changes in the circumstances prevailing at the time when the licence was granted. In particular the licence-holder has to remain at all times "professionally competent" in order for the licence to remain in force. In other words, the licence-holder must himself hold the required qualifications or, alternatively, employ a suitably qualified transport manager. The letter asked Northern to provide details of the arrangements being made to nominate a replacement transport manager in order to ensure that that company remained "professionally competent". The information was required by 27^th January 2009 and would then be considered by the Traffic Commissioner. On 29^th January 2009 the OTC wrote again stating that no response had been received and requiring the information to be sent by no later than 12^th February 2009. A warning was also given that if no response was received by that date the Traffic Commissioner was proposing to revoke the licence under section 27(1)(c) of the 1995 Act on the basis that the company no longer met the requirements of professional competence. It does not appear that any response was sent to that letter.

By an e-mail dated 1^st June 2009 sent by Ward International to the OTC, Mr. Marsh explained that in view of the content of the call-up letter sent to Northern, the directors of ALLL had instructed him to attend the inquiry set for 8^th June 2009 purely to hold a "watching brief". He stressed that he was not in receipt of any instructions from Northern.

Mr. Marsh prepared a report as to what took place at the public inquiry on 8^th June 2009. He set out a number of questions which were addressed to him by the Third Defendant at the inquiry asking him for example who he was representing and who had instructed him, to which he replied respectively ALLL and Alan Bennett. He was asked whether Alan Bennett was a director of Northern to which he replied no and he was asked why Alan Bennett was not in attendance. He was also asked to explain the relationship between Alan Bennett and Ryan Bennett and the relationship between Alan Bennett and Mrs Lee Bennett. He was also asked to explain how he communicated with Alan Bennett. In paragraph 11 of the Claimants' Particulars of Bias, criticism was made of that questioning of Mr. Marsh suggesting that it was irrelevant, prejudicial and evidence of bias. That allegation has not been pursued subsequently and in particular during the hearing. It was unfounded and I say no more about it.

The Third Defendant's initial decision was issued on 8^th June 2009. In paragraph 1 she decided under section 26 of the 1995 Act to revoke the operator's licence with immediate effect. In paragraph 2 the Third Defendant concluded that the financial standing requirements were no longer satisfied by Northern; indeed, the operator had failed to provide any evidence of financial standing. Next, because the company no longer had a transport manager, she decided that the company was unable to fulfil the professional competence requirement. On these findings also, the operator's licence had to be revoked. In paragraph 3 of her decision, the Third Defendant explained why she considered that Northern no longer satisfied the repute requirement and that as a result she should revoke the licence on that ground also with immediate effect. No challenge has been made to any of those decisions.

In paragraph 4 of her decision the Third Defendant said this with regard to the transport managers:-

"The position with regards to the transport managers is less clear. With regard to Christopher Bennett I make no finding either way as I have not been able to question him with regard to his repute. He has said that he cannot come today. I shall give him one further opportunity to attend before me to make further representations or to give evidence and so I draw back today from making any findings so far as he is concerned."

In paragraphs 5 and 6 of her decision the First Defendant explained why she had decided "just on balance" that Mr Bunce continued to fulfil the repute requirement.

In paragraph 9 of her decision the Third Defendant said:-

"Finally I direct that this document be sent to the Traffic Commissioner who is presiding at the Public Inquiry for ALLL. I have caused inquiries to be made by my office as to the registered keeper of the vehicles that were on the licence for Northern and I understand that the registered keeper of seven of those vehicles is ALLL based in SEMTA."

In paragraph 10 of her decision the Third Defendant said that she would continue to monitor the position with regard to those seven vehicles and to see how they were used, given that ALLL had declared that it was only conducting a freight forwarding business. Criticisms have been made of paragraphs 9 and 10 on the basis that they show bias on the part of the Third Defendant and that she improperly made prejudicial remarks adversely affecting the First Claimant in these proceedings. However no criticism or challenge has been made to the factual accuracy of paragraph 9, and in those circumstances I see no legal basis upon which the Third Defendant could be criticised for having made these remarks. In my judgment she was clearly acting in the public interest in pursuing the issue in that manner.

On 12^th June 2009 OTC wrote on behalf of the Third Defendant to Christopher Bennett at the same address in Sheerness to which the call-up letter of 11^th May 2009 had previously been sent. The OTC referred to Mr. Bennett's non-attendance at the Public Inquiry held on 8^th June 2009. The letter enclosed the Traffic Commissioner's decision of 8^th June 2009. It is apparent from a letter dated 29^th July 2009 written by Mr. Marsh to the OTC, that this letter of 12^th June 2009 had been forwarded to Christopher Bennett albeit that the address at 28 Brambles Close was not his home address. It has not been suggested on behalf of the Claimants that Christopher Bennett did not receive the letter promptly after it was sent.

Mr. Christopher Bennett has provided a brief witness statement in these proceedings. In paragraph 18 of that statement he simply says this: "I expected that if the Traffic Commissioner wished to see me, she would ask me to appear before her. I would have told her the same thing that I put in the letter [i.e. his letter of 28^th May 2009]. But she did not." It is quite incorrect for Mr. Bennett to imply that the Traffic Commissioner had not asked him to appear before her. She had initially asked him to do just that in the call-up letter of 11^th May 2009. In his own letter to the Commissioner of 28^th May 2009 Mr. Bennett had already stated that if she considered it necessary for him to attend personally then he would do so. When Mr. Bennett received the Commissioner's decision of 8^th June 2009 it must have been clear to him that the Third Defendant did indeed consider it necessary for him to appear before her in order to deal with the question of his good repute. She gave him one further opportunity to attend before her in order to make representations or to give evidence. Insofar as paragraph 18 of his witness statement seeks to suggest that Mr. Bennett was unaware of the Traffic Commissioner's firm view that he should appear before her, that could only be described as disingenuous.

Just before the Commissioner issued her final decision on 11^th July 2009 Ryan Bennett wrote to her office. The letter is referred to by Mr. Aylen QC on behalf of the Claimants because he suggests that it was a self-serving letter in which Mr. Bennett sought to exculpate himself in relation to such matters as his failure to reveal a conviction, but also at the same time seeking to put the blame for many of the problems of Northern upon his father Alan Bennett.

On 27^th July 2009 the OTC again wrote to Christopher Bennett on behalf of the Third Defendant. The letter stated that in view of the absence of any correspondence or contact from Mr. Bennett and having carefully considered all the evidence presented to her the Traffic Commissioner had decided that he had lost his good repute. The letter added that although section 27 of the 1995 Act did not confer an express right of appeal against that decision it was nonetheless possible for such an appeal to be lodged with the Transport Tribunal. Once again it is apparent from the letter from Mr. Marsh dated 29^th July 2009 within 2 days the letter of 27^th July had been received by Christopher Bennett. In paragraph 23 of her witness statement the Third Defendant explains that "the reasons for [Mr. Bennett's] loss of repute are exactly the same as the reasons for the loss of repute of the operator, as it was the role of the transport manager (with the directors for the operator) to ensure operator licence compliance."

The grounds for criticising the Third Defendant

I should refer at the outset to the unconventional way in which the Claimants have attempted in this Court to criticise the Third Defendant. Although the Third Defendant has been joined as a party to these proceedings, no claim form has ever been issued in respect of any of the decisions of the Third Defendant. Even more peculiar, although the complaints raised in these proceedings would appear to affect directly the interests of Christopher Bennett, he has not been joined as a Claimant to any proceedings before this Court. The only remedy which has ever been sought against the Third Defendant was a stay of her decision dated 27^th July 2009. That stay was not granted by either Foskett J or Walker J. Instead, on 13^th August an undertaking was given merely by the First Defendant not to act upon the Third Defendant's decision. Thereafter no remedy has been sought against the Third Defendant in any claim filed with the Court.

From the documents seeking to join the Third Defendant, it would appear that the criticisms against her were made in order to support the "connivance" and related bias allegations in the Particulars dated 27^th July 2009. There was never a freestanding challenge to her decisions. However, once that part of the bias claim was withdrawn, there was no legal basis for the Claimants to persist in this Court with their criticisms of the Third Defendant. Mr. Aylen QC sought to explain that the adverse decision against Mr. Christopher Bennett itself has a prejudicial effect on the position of the company ALLL. Even assuming for the sake of argument that that might be so, (a) the attack on the Third Defendant is no longer linked to their challenge to the First Defendant's decision and (b) Mr Aylen has not overcome the simple point that the Claimants have not sought to make any challenge to the Third Defendant's decision or to seek any public law remedy against her or other relief. This part of the Claimants' case does not even get to the point where locus standi needs to be considered.

Despite this muddle created by the Claimants, I will deal with the grounds of criticism raised against the Third Defendant, in the interests of fairness to her and to clear the air.

The requirement to give notice of an adjourned hearing date

I have first considered the statutory procedural provisions for the giving of notice to Mr. Bennett. Under paragraph 3(4) of Schedule 4 to the Goods Vehicle (Licensing of Operators) Regulations 1995, Mr. Bennett was entitled to appear at the public inquiry if he was regarded as being for the purposes of those regulations as a transport manager. By paragraph 1(1) of the same Schedule 4 the Traffic Commissioner was required to send to every person entitled to appear at the inquiry in accordance with paragraph 3 a written notice or the date, time and place fixed for the holding of the inquiry such notice was to be sent at least 21 days before the date so fixed. Paragraph 1(2) deals with circumstances where before the inquiry commences the Traffic Commissioner varies the date or location for the holding of the inquiry. Paragraph 1(6) Schedule 4 applies the earlier provisions of that paragraph to an adjourned inquiry with two modifications, firstly that if the date and place of the adjourned inquiry are announced at the inquiry itself before the adjournment then no further notice need be given and secondly and the time limits for giving any written notice which is otherwise required is 7 days rather than 21 days. It seems to me that in this case it is arguable that a notice of an adjourned inquiry date ought to have been given to Christopher Bennett under paragraph 1(6) of Schedule 4, and that that requirement was not met. However paragraph 5(7) of the same Schedule 4 empowers the Commissioner to proceed with an inquiry in the absence of a person entitled to appear but if such a person was required to be given a notice under paragraph 1 of the Schedule then the Commissioner may not so proceed in that person's absence unless (b) "he decides to proceed with the inquiry under paragraph 7 of this Schedule on the basis that no injustice would be caused to the person as a result of such notice not having been duly given to him." In view of the fact that Mr. Bennett was clearly informed of the calling of the inquiry on 8^th June 2009 and of the outcome of that inquiry, in particular paragraph 4 of the decision letter of 8^th June 2009, I am satisfied that it was open to the Commissioner to proceed to her final determination against Mr. Bennett in reliance upon paragraph 5(7) of Schedule 4.

Alternatively, I do not consider that any non-compliance with the requirements of Schedule 4, has the consequence that the Third Defendant's decision of 27^th July 2009 was unlawful. Applying the principles in cases such as R v. Soneji [2006] 1 AC 340 (discussed during argument), the objects of notification were achieved in this case and the degree of any non-compliance with the precise requirements of Schedule 4 did not result in the decision being unlawful. In addition, there was no suggestion that any prejudice was caused to Christopher Bennett by any such non-compliance. Plainly he was fully aware of how the Commissioner was intending to proceed. Moreover, if Mr. Bennett had thought that he had a legitimate complaint against the Third Defendant for the way in which she had proceeded, his remedy was to have appealed to the Transport Tribunal. He has not taken that course for reasons which have not been explained to the Court.

Absence of evidence to show that Mr Bennett was Northern's Transport Manager

The next criticism made was that there was no evidence to show that Mr. Christopher Bennett had been the transport manager at any material time. It was said that the Commissioner had failed to deal with his letter of 12^th January 2009 to the OTC. On the other hand there was some evidence, to which I have already referred, before the Third Defendant to show that at least at one stage Mr. Bennett had been the transport manager for Northern. Mr. Aylen QC did not argue that where a person has been appointed a transport manager for an operator but subsequently ceases to hold that post, a Traffic Commissioner cannot consider the good repute of that person as a transport manager during those earlier periods. In paragraph 5.4 of the Claimants' skeleton it was argued that paragraph 4 of the Third Defendant's decision letter was unfair in that the Commissioner stated that she could not make a finding in relation to good repute either way as she had been unable to hear evidence from or put questions to Mr. Bennett. Mr. Aylen points out that the Commissioner had received written representations from Mr. Bennett dated 28^th May 2009, but she also had material suggesting that Mr. Bennett had been the transport manager for Northern for at least a period of time. There was nothing unfair or unlawful about the way she chose to proceed in paragraph 4 of her decision. Once again if, Mr. Bennett was dissatisfied with the way in which the issue about his status as a transport manager or no for Northern had been handled, he had a perfectly good remedy in the form of an appeal to the Transport Tribunal. In the light of the decisions in Ferrero and Falmouth there would have been no justification if Mr. Bennett had sought to raise these matters himself by way of judicial review in the High Court. The position of the Claimants in this respect can be no better. The witness statements served on behalf of the Claimants, including that of Christopher Bennett do not deal with these issues at all. I conclude that this ground of challenge is unarguable and in any event is not a matter which ought to be raised in proceedings for judicial review.

The letter from Ryan Bennett of 11^th July 2009

Mr. Aylen also submitted that the Third Defendant had erred by taking into account the letter from Ryan Bennett dated 11^th July 2009 when reaching her decision in relation to Mr. Christopher Bennett. In fact there is no evidence to suggest that that letter from Ryan Bennett influenced the Commissioner at all. Indeed it was not explained to me how that letter could have influenced the Third Defendant to act adversely to the interests of Christopher Bennett.

Disparity of treatment

Although on the first day of this hearing the Claimants' leading Counsel stated that the allegations of bias would be maintained against the Third Defendant, very little was in fact advanced in support of that argument in the Claimants' skeleton argument and even less was said on that matter in their oral submissions. The main point that appears to be made was that there was disparity of treatment between the approach taken by the Commissioner to the letter from Mr. Ryan Bennett of 11^th July 2009 as opposed to her response to Mr. Christopher Bennett. As a result of the letter from Ryan Bennett the Commissioner sent a letter dated 27^th July 2009 in reply in which she told Mr. Bennett that it had been decided that no further action would be taken in respect of his repute. The argument that there was disparity between the treatment of Ryan Bennett and Christopher Bennett depends upon an investigation of the merits of the representations made by each of those persons. The appropriate method for advancing any argument of that kind, insofar as it might have any merit whatsoever, would have been an appeal to the Transport Tribunal. The present proceedings are not an appropriate vehicle by which to ventilate this alleged grievance.

I have already dealt with what appear to have been the main grievances in respect of the Third Defendant's decision. A miscellany of other matters were paraded in the Claimants' skeleton argument. I do not propose to lengthen this judgment by going through each of those matters one by one. Suffice to say for the purposes of these proceedings, that each of those matters could and should have been dealt with by way of an appeal to the Transport Tribunal if Christopher Bennett had been at all concerned about them. Bearing in mind in particular that he has collaborated with the Claimants in promoting the present proceedings in the High Court (see in particular his witness statement) it is highly significant that no explanation has been given by him as to why that remedy has not been pursued. It has not been argued that there is any point which the Claimants would like to have seen pursued, but which Christopher Bennett himself would have been unable to pursue by way of an appeal to the Transport Tribunal.

For all these reasons I have reached the conclusion that each and every one of the criticisms made of the Third Defendant are completely unarguable and I therefore refuse permission to apply for judicial review to challenge the decisions of the Third Defendant.

The claim for damages

The Claimants have failed to provide any satisfactory particulars of the basis upon which they wish to claim damages. In his oral submissions, Mr. Aylen QC stated that the claim would not be pursued against either of the two Commissioners. The claim was therefore only being pursued against the Second Defendant, VOSA. When I asked Mr. Aylen QC to confirm the basis upon which his clients were seeking damages against VOSA he responded merely by saying "libel". Mr. Aylen has not explained how Part 54 could be used in order to litigate a libel claim, nor has the Claimant provided any proper particulars which would enable a libel claim to be considered by the Court. In any event, all the public law claims advanced against the Second Defendant in this application for judicial review have failed. Accordingly, permission must also be refused to bring the claim for damages.

Conclusions

The only part of this claim which succeeds is the challenge to the First Defendant's decision to continue with proceedings under sections 26 to 28 of the 1995 Act by calling a second public inquiry. That challenge succeeds solely on one ground, namely the First Defendant ought not to have taken that decision himself. I therefore grant permission to apply for judicial review on that part of the claim only and, subject to any submissions from Counsel, I will grant a quashing order in relation to that decision. Because all the other claims are unarguable I refuse permission to apply for judicial review in relation to them.

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Al-Le Logistics Ltd & Ors, R (on the application of) v Traffic Commissioner for the South Eastern and Metropolitan Traffic Area & Anor [2010] EWHC 134 (Admin) (02 February 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/134.html Cite as: [2010] EWHC 134 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd February 2010