There is a right of appeal against decisions made by a Traffic Commissioner. Appeals are heard by a specialist appeal tribunal called the “Upper Tribunal” (it was previously called the Transport Tribunal).
The Upper Tribunal sits in London for appeals from cases in England: Cardiff for appeals brough by Welsh operators; Edinburgh for cases in Scotland and Belfast for Northern Ireland. Appeals are heard by a panel of one appeal judge plus two panel members. At least one of the panel members comes from a background in transport and is there to bring practical knowledge of the transport industry to the tribunal’s decision making.
If you're not happy with a decision of a Traffic Commissioner then you should take legal advice as soon as possible from a specialist transport law solicitor. Appeals are very complex and delicate matters and strict procedures are time limits apply.
What decisions can be appealed ?
The Upper Tribunal can hear appeals against the following decisions of a Traffic Commissioner:
(a) Revocation, suspension or curtailment of an operator’s licence;
(b) Disqualification of an operator licence holder or director;
(c) Disqualification of a Transport Manager;
(d) Refusal to grant an operator’s licence;
(e) Conditions imposed on an operator’s licence or refusal to remove conditions;
(f) Certain decisions in relation to an operating centre;
(g) Financial penalties in the case of PSV operators.
Who can appeal ?
Depending on the facts of the case, the following may have the right to lodge an appeal :
(a) An operator licence holder;
(b) Director of a company holding an operator’s licence;
(c) A transport manager;
(d) Anyone disqualified from holding an operator’s licence;
(e) In certain circumstances, people who have objected to the grant of an application.
Is there a time limit ?
The time limit for putting in an appeal is 28 days from the date of the Traffic Commissioner’s decision (this is from the date of the decision, not the date you might have received the decision).
In certain limited circumstances, the Tribunal can accept an appeal, even though it was made out of time. The Tribunal will need to be satisfied about the reasons for late appeal.
The appeal process
An appeal form has to be filled in and submitted to the offices of the Upper Tribunal in London for each appellant.
The appeal form must include your grounds of appeal more about about grounds of appeal further down). It is often better to have a separate document setting out your grounds of appeal because space in the form itself is quite limited.
The grounds of appeal must be received by the Upper Tribunal Office within 28 days of the date of the Traffic Commissioner’s decision. You should also send a copy of the notice of appeal to the office of the Traffic Commissioner who made the decision you are appealing against.
Upon receiving the appeal forms, the Upper Tribunal office will allocate a case number and acknowledge receipt of the appeal. The Upper Tribunal office will then obtain all relevant documents from the Traffic Commissioner’s office and prepare an appeal bundle. The bundle will include a full transcript of the Public Inquiry as well as every other document in the Traffic Commissioner’s possession that is relevant. Appeal bundles can be very large and often amount to 500 pages or more.
A copy of the appeal bundle will be sent out to you a few weeks before the appeal hearing is to take place. You will also be notified of the date and time for the appeal hearing.
The appeal hearing
At the appeal hearing, it is customary (though not compulsory) to hand in beforehand what is called a “skeleton argument”. This document is essentially an outline of what your case is. If you instruct a solicitor or barrister, they will spend quite a lot of time perfecting the skeleton argument. It is a very important document.
The hearing itself will be heard by an appeal judge along with two other tribunal members. One of the non-judicial members will have some background in transport.
It is important to understand that an appeal hearing is not a re-hearing of the original case.
The appeal hearing is a review of all the evidence heard at the public inquiry. No new evidence can be considered, only the evidence that was at the public inquiry. The transcript is an important part of any appeal because it is a complete record of everything that was said at the public inquiry.
What are acceptable grounds of appeal ?
Valid grounds of appeal are quite limited. There is a high hurdle in being successful at an appeal.
It is not about persuading the Tribunal that the decision was wrong. You have to go beyond that an persuade them that there was something wrong with the process from which the traffic commissioner made the decision or that the decision was so wrong as to be unjustifiable.
It is not sufficient that you disagree with the Traffic Commissioner’s decision, even if the Tribunal themselves disagree with the Traffic Commissioner’s decision.
The legal test for a successful appeal is that by reason of fact or law, an appeal tribunal is compelled to reach a different view to the Traffic Commissioner.
What this means is that the Appeal Tribunal must not just disagree with the Traffic Commissioner’s decision but they must find that his decision was “plainly wrong” to the extent that the decision has to be set aside.
If the Traffic Commissioner has carefully considered all relevant facts and has conducted a fair public inquiry and his decision is supported by the facts and law, then the Appeal Tribunal will not set aside his decision, even if the Tribunal members themselves believe that the Traffic Commissioner reached the wrong conclusion.
Examples of what might be successful grounds for appeal are as follows:
(a) The Traffic Commissioner interpreted the law incorrectly or applied it incorrectly to the facts;
(b) The decision was plainly disproportionate;
(c) The Traffic Commissioner misunderstood some significant facts of the case;
(d) Some important facts were not properly considered by the Traffic Commissioner;
(e) The Traffic Commissioner’s explanation for the decision was insufficient to justify the conclusions;
(f) The Traffic Commissioner was biased;
(g) The proceedings were in some way unfair, for example, you weren’t able to say all that you wanted to say or something arose during the course of the Public Inquiry that you weren’t expecting and which meant you were unfairly caught unprepared.
Can the decision be put on hold while the appeal is heard ?
When the Traffic Commissioner makes a decision, that decision will either come into effect immediately or at some specified date into the future.
For example, with a revocation decision, it is customary to allow somewhere between 4-6 weeks (it could be more, it could be less) between the date of the decision and the date on which the revocation comes into effect. The problem is that an appeal hearing typically takes 4-5 months to be dealt with.
Once a revocation has taken effect, the business is normally by that stage lost forever and the appeal is therefore, in a practical sense, meaningless.
To get round this problem, there is a process that allows an operator to apply to the Traffic Commissioner for the decision to be “stayed” until the appeal hearing has taken place. This effectively means that the Traffic Commissioner’s decision is put on hold to allow the appeal hearing to take place first.
An application has to be made to the Traffic Commissioner who made the decision for the stay. An application to stay has to meet certain criteria before the Traffic Commissioner will grant it.
If the Traffic Commissioner refuses to grant a stay, then you have a right to apply to the Upper Tribunal direct for the Upper Tribunal judge to grant a stay.
Applications for a stay are made on paper. There is no hearing. Therefore, it is important that a persuasive and well presented case is put forward in letter format to the Traffic Commissioner and/or the Upper Tribunal to ensure that a stay is granted.
Stays are discretionary and are not always granted.
Appealing higher if your appeal is unsuccessful
It is only on very narrow grounds that a further appeal can be made if you disagree with the decision of the Upper Tribunal. A further appeal is to the Court of Appeal. The grounds for appealing to the Court of Appeal must include that there has been an error of law by the Upper Tribunal and/or a further appeal would include a matter of public interest.
It is very difficult to make further appeal after the Upper Tribunal and that is reflected in the fact that there have only been a handful or so of commercial transport related cases that have gone to the Court of Appeal in the last 10 years.
Contact us About Your Transport Law Problems
Please get in touch with us without charge or obligation.
Contact us today and we'll give you an idea about how we might be able to help you. We will be very glad to talk through your situation and review your papers free of charge to help you to make an informed decision about what to do.
