Jared Dunbar BSc, MA, LLB Associate, Dyne Solicitors Limited

1. Appeals to the Upper TribunalAgainst a Traffic Commissioner’s decision (Goods Vehicle Operator’s Licence) Jared Dunbar BSc, MA, LLB Associate, Dyne Solicitors Limited

2. Review of a Traffic Commissioner’s Decision • Alternative to an Appeal. • Why? TC can review their decision only if the TC is satisfied that a procedural requirement has not been complied with. • How? A TC can only conduct a review if: • Notice is given to the applicant/operator of the intention to review, • A person who appears to have an interest in the decision has requested a review, or • TC considers there are exceptional circumstances that justify it. • Time limits: Period of service of notice of a review is 2 months. • If refused a review: Can appeal refusal decision to the Tribunal.

3. What is the Upper Tribunal? • The Administrative Appeals Chamber of the Upper Tribunal. • Previously the ‘Transport Tribunal’. • In 2009, power to decide appeals against decisions of TC’s transferred into the Upper Tribunal. • Consists of High Court judges and other specialist judges. • Includes non-legal members who have experience in transport operations. • All judges are independent of the Traffic Commissioners. • Tribunal is based in London . But also heard in Glasgow/Edinburgh. • Decides appeals on points of law.

4. Which Decisions Can Be Appealed? • Any refusal of an application or variation. • Any decision to suspend, curtail, revoke a licence. • Any decision to disqualify someone from holding a licence. • (Any decision on a Transport Manager’s repute or professional competence.) • (Decisions made on a driver’s vocational licence)

5. Who Can Appeal? • The Operator. • A Statutory Objector (e.g. police, local authority, RHA, FTA) against the grant of an application or a variation on an Operating Centre decision. • (A Representor can’t.) • (The Transport Manager – TM case.) • (Driver’s appeals go to the Magistrates’ Courts.)

6. How to Appeal • Do not need permission to appeal. • Submit a written notice of appeal to the Upper Tribunal. • Notice must comply with the Upper Tribunal Procedure Rules – standard form. • Must provide reasons for the appeal. • Must be lodged within 1 month. • (If out of time, then require permission from the Upper Tribunal to appeal.)

7. Staying aTraffic Commissioner’s Decision • Normally the Traffic Commissioner’s decision comes into force regardless of an appeal. • However, can request that the Traffic Commissioner stays the decision pending the appeal. • If the Traffic Commissioner refuses, the Operator can ask the Upper Tribunal to stay the Traffic Commissioner’s decision pending the appeal. • Stays are dealt with as a matter of urgency and therefore requests should be submitted immediately.

8. Traffic Commissioner’s Involvement in the Appeal • Previously, the TC was not considered a party to the appeal. • Since 2009, although the TC is not automatically a respondent they are allowed to become ‘an interested party’. • They can then attend the hearing and make representations.

9. Grounds • Upper Tribunal will be concerned with whether the TC: • Was plainly wrong, or misdirected himself about the law or evidence; • Took into account any matter which should not have been taken into account or failed to take into account matters which should have been; • Offended the rules of natural justice in the conduct of the proceedings by showing bias, refusing the right to be heard, or failing to make clear what was alleged against the applicant / licence holder.

10. Evidence (Part 1) • Upper Tribunal cannot take into account of circumstances which did not exist at the time of when the TC made their decision. • Therefore, usually no new evidence can be admitted. • Tribunal does not usually hear witnesses (only in exceptional cases, where the interests of justice require it).

11. Evidence (Part 2) • New evidence can be admitted at appeal, but very unlikely. • To be admitted, new evidence must be evidence which: • Could not have been obtained with reasonable diligence for use at PI; • Would probably have had an important influence on the result of the case (but not decisive); • Is apparently credible though not necessarily incontrovertible. • Therefore crucial to have all evidence before the TC at the Public Inquiry (likely your only chance to present your evidence!)

12. Procedure at the Hearing • Proceedings are informal and open to Public. • No witnesses. • No rehearing of the merits. • In essence, a review of the Traffic Commissioner’s decision: did they apply the proper tests. • Hearing can take place without the parties attending.

13. The Upper Tribunal’s Decision • Upper Tribunal will either: • Overturn the TC decision and replace with a new decision; • Revert case back to be heard before the TC (a different one if necessary); • Dismiss the appeal and confirm TC decision. • Written decision is produced.

14. Costs of an Appeal • Doesn’t cost anything to appeal. • However, if represented then legal fees can be costly. • No legal aid available in this jurisdiction. • Insurance may cover legal representation. • Generally, no costs if you are unsuccessful. • However, Upper Tribunal has a power to award costs but only where an appellant has been unreasonable! • Much cheaper to get the correct decision at Public Inquiry. • May seem like a cost saving to go unrepresented to a Public Inquiry. • But need to consider: • the risks of getting it wrong; • the costs of repairing the problem; • Whether in fact it can be rectified given no new evidence can be admitted!

15. Appealing the Upper Tribunal’s Decision • An appeal of the Upper Tribunal’s decision lays to the Court of Appeal. • Not automatic - Require permission to appeal from the Upper Tribunal first. • 1 month time limit for requesting permission to appeal.

16. Comments From George Inch Non legal member of the Upper Tribunal