MCKENDRY, Application for leave to appeal by (FIRST) and (SECOND) DOUGLAS MCKENDRY AGAINST A DECISION OF THE UPPER TRIBUNAL [2018] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MCKENDRY, Application for leave to appeal by (FIRST) and (SECOND) DOUGLAS MCKENDRY AGAINST A DECISION OF THE UPPER TRIBUNAL [2018] ScotCS CSIH_10 (30 January 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_10.html Cite as: [2018] CSIH 10, [2018] ScotCS CSIH_10

[1] Today there is no appearance for the applicants. There has been no communication from

them to explain their absence, whether by letter, email, text, telephone or other means. The

applicants are well aware of the hearing which has been fixed for today. In particular they have

received a letter dated 30 December 2017 intimating the date of this hearing. They have also

received a copy of the relevant interlocutor. The clerk of court today took the trouble to

telephone a home telephone number which he had. He spoke to Mr Douglas McKendry’s wife

who stated that her husband was attending hospital for x-rays. What we do have in court today

is a typed note of the applicants’ note of argument lodged in process. Also Mr McGregor for the

respondent (the Advocate General) is in court today, and adheres to the answers and note of

argument lodged on behalf of the Advocate General. Mr McGregor invites the court to make a

[2] Having considered the papers and the notes of argument, I have formed a view about the

application for permission to appeal against the decision of the Upper Tribunal. As that view is,

in my opinion, one which could not be challenged, I propose to give my decision now. The

decision will be tape-recorded, extended and placed in process where it will be available to both

[3] In terms of Rule of Court 41.57(2), permission to appeal will not be granted unless the

court considers that (a) the proposed appeal would raise some important point of principle or

(b) there is some other compelling reason for the court to hear the appeal. At the outset, it may

be helpful to reiterate the well-accepted principle that questions of credibility and reliability of

witnesses are entirely matters for the first instance judge, in this case the Commissioner. Any

inferences which may be drawn from the evidence are also matters for the Commissioner. Only

if the Commissioner can be demonstrated to have gone “plainly wrong” in the sense explained

by the Supreme Court in Henderson v Foxworth Investments Limited 2014 SC 203 may a higher

[4] In the present case, the Commissioner heard evidence from several witnesses, including

James McDonald, Douglas McKendry, Carrie McKendry and Nicola McCallum. Productions

were referred to and studied. Submissions were made. In that context, I am not satisfied on the

material before me that the applicants have made out any stateable case that Mr McDonald was

given insufficient opportunity to present an argument arising from the Partnership Act 1890

(ground of appeal 1). Nor am I satisfied that the applicants have made out a stateable case of a

[5] The Commissioner’s conclusions were that: (a) the two buses were owned by a

partnership comprising Douglas McKendry and Ann McKendry; and (b) even if that was

incorrect, and even if one bus was owned by Douglas McKendry and the other by

Carrie McKendry, each of these people (ie each of the applicants) knew that his or her bus was

being used to transport passengers to T in the Park without the necessary PSV licence, thus

failing to satisfy Regulation 10(3)(c) of the Public Service Vehicles (Enforcement Powers)

[6] The second conclusion reached by the Commissioner, concerning the knowledge of the

applicants, was one which was clearly open to the first instance court on the basis of the evidence

led by way of witnesses and productions. As the Upper Tribunal point out at paragraphs 54

“...even if a partnership was dissolved by the sequestration of Mrs McKendry’s estate...we

do not see how this would have helped [Mr McKendry]. ... The Commissioner’s rejection

of [Mr McKendry’s] case on statutory ground (c) for recovery of an impounded vehicle

would still have defeated his application. This scenario would not have helped

Miss McKendry either... We make the above points simply to satisfy ourselves that

section 31 of the 1890 Act, even if taken into account by the Commissioner, would not

Thus even if additional submissions had been made concerning the Partnership Act 1890 that

[7] Ultimately, the Upper Tribunal detected no error in the Commissioner’s approach and

conclusions. I agree. Nothing which could be said by the applicants in court today, so far as I

am aware, would persuade me that either the Commissioner or the Upper Tribunal erred in any

way. Moreover I am not satisfied that the proposed appeal would raise some important point of

principle, or that there is some other compelling reason for the court to hear the appeal. Thus

[8] In the result, I refuse permission to appeal. I award expenses in favour of the

[9] After the above ex tempore judgment had been read out in court, Mr McGregor reminded

the court of Smith v Scottish Ministers 2010 SLT 1100. That case dealt with a failure to attend

court, said to be attributable to medical reasons, and the need to provide supporting

[10] As noted earlier, during the telephone call with Mrs McKendry, the clerk was told that

Mr McKendry was attending hospital for x-rays. This court would have expected a soul and

conscience certificate or some other form of validation or support advising of medical treatment

such as x-rays before being able to accept it as a reason excusing failure to attend today’s formal

court hearing, of which due notice had been given (see Smith v Scottish Ministers, cit sup). No

such certificate, validation or support was available to the court in this case.

[11] Once the court had adjourned, the clerk of court advised that he had received an email

from McKendry Coaches, stating that they had got the date of the court hearing wrong, and had

diaried it for 31 January 2018. I noted that information, but nevertheless adhered to my view that

there was no merit in the application for permission to appeal, for the reasons given above.

Scottish Court of Session Decisions