Neutral Citation Number: [2010] UKUT 147 (AAC)

Appeal No.  T/2010/6
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF
 JOAN AITKIN, TRAFFIC COMMISSIONER for the 
 SCOTTISH TRAFFIC AREA Dated 21 December 2009

Before:
Her Hon. Judge J Beech, Judge of the Upper Tribunal
Stuart James
John Robinson

Appellants:

JAMES & CATHERINE COSGROVE trading as
FISHER TOURS

	 
Attendances:
For the Appellant: Mr Lyndhurst of Counsel instructed by Halliday Campbell WS on behalf of the Appellants

Heard at:	The Eagle Building, 215 Bothwell Street, Glasgow G2 7EZ
Date of hearing:	25 March 2010
Date of decision:	9 April 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED and the order of the Traffic Commissioner to take effect from 2359 on 30 April 2010.

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for the Scottish Traffic Area made on 21 December 2009 when she ordered that the Appellants pay a penalty of £12,650 under s.39 of the Transport (Scotland) Act 2001 and placed a condition upon their PSV licence preventing them from operating six local service registrations under s.26 of the Transport Act 1985 (“the 1985 Act”).  

2.	The factual background to the appeal appears from the documents, the transcript and the Traffic Commissioner’s written decision and is as follows:

(i)	On 27 March 2000, the Appellants were granted a standard international PSV licence authorising 23 vehicles with 23 discs issued.  The Appellants operate 49 registered bus services, 19 of which are school contracts.

(ii)	Between 13 May and 1 June 2009, Carol Riley, Bus Compliance Officer (“BCO”) along with Tom Coyle (BCO) monitored six of the Appellants registered bus services and found as follows:

a)	Service 245, Brechin to Largs, scheduled to run fortnightly on Fridays: this service was monitored on 15 and 29 May 2009 at Glasgow Airport, Wemyss Bay, Greenloaning Little Chef A9, Stirling Services, Castlecary Road, Muirhead and Glasgow SECC.  On 15 May 2009, the bus was due at Glasgow Airport at 10:58.  In fact it did not leave the M8 in order to do so and proceeded past the junction that serves the airport.  The service therefore failed to operate.  On 29 May 2009, the service was followed from Greenloaning Little Chef A9.  The service was 13 minutes late as it passed Greenloaning and the driver failed to go into Muirhead as per its registration.  The driver then failed to go to the bus stop at SECC in Glasgow and then failed to go to Glasgow Airport as per its registration.  It was noted that the major roadworks in Castlecary did not adversely affect the running of the bus service.

b)	Service 229, Arbroath to Largs, scheduled to run fortnightly on Fridays: this service was monitored on 22 May 2009 at Largs, Wemyss Bay, Glasgow Airport, Glasgow SECC and Muirhead.  From Largs, the bus failed to enter or stop at Glasgow Airport, Glasgow SECC and Muirhead.  

c)	Service 225, Arbroath to Ayr, scheduled to run fortnightly on Mondays: this service was monitored on 1 June 2009 from Greenloaning Little Chef A9 to Ayr. The timing point at Bothwell Services on the M74 could only be accessed on the outward journey, not the inward journey.  At Loudon Castle, the bus was scheduled to stop at the coach park which was half a mile from the A71 but the driver failed to stop either there or on the A71 itself.  At the Bellfield Interchange, another timing point, there were no bus stops.  According to Mr Cosgrove when interviewed, the bus should have entered the BP garage and then on to the Travelodge and then should have exited onto the A71 which the driver failed to do.  Another timing point was stated to be “Stonehouse bus stop on by pass” where there were three bus stops with no indication on the time table as to which one was the relevant stop and the same issue applied to the Strathaven bus stop where there were two bus stops on the stretch of road.  Finally, the bus was scheduled to leave at 15.30 from Carrick Street, Ayr from outside the Gaiety Theatre but instead left from Boswell House, Boswell Park (which is around the corner and some distance away).  

d)	Service 233, Brechin South Esk to Leith Ocean Terminal, scheduled to run fortnightly on Wednesdays: this service was monitored on 20 May 2009 at Kinross High Street, Edinburgh Leith, Edinburgh Waterloo Place and Edinburgh Queensferry Road.  It was noted that the tram works in Edinburgh did not hold the bus up as there were dedicated bus lanes.  At Ocean Terminal, the driver picked his passengers up in the car park and did not use the bus lane or the bus stop at the Terminal.

e)	Service 238, Arbroath Railway Station to Leith Ocean Terminal, scheduled to run fortnightly on Wednesdays: this service was monitored on 13 May 2009 at Kinross High Street, Forth Bridge Tolls, Edinburgh Queensferry Road, Edinburgh Waterloo Place and Edinburgh Leith.  The bus was followed from the Forth Bridge at 10.15 heading towards Barnton Junction where it was timed at 10.22.  The bus then took 17 minutes to reach Waterloo Place when the timetable allowed 10 minutes.  On the return journey, the bus arrived at Waterloo Place from Ocean Terminal, 16 minutes late.  By the time that it had reached Barnton Junction, it was 31 minutes late.  

f)	  Service 232, Brechin South Esk Street to Stirling Bus Stop outside the Bus Station, scheduled to run fortnightly on Tuesdays: this service was monitored on 19 May 2009 at Gleneagles A9 Station Road End, Greenloaning Little Chef A9 and Stirling.  The bus was due at Gleneagles Station at 09:50 but passed the timing point at 10.01, 11 minutes late.  It was also 11 minutes late passing Greenloaning Little Chef A9.  

(iii)	Of the 42 journeys monitored, 35 were seen.  Of those seen, two were observed to be more than 1 minute early, representing a 4% non-compliance rate.  22 journeys were more than 5 minutes late, representing a non-compliance rate of 52%.  The percentage of non-compliant journeys outside the accepted window of tolerance of less than one minute early and no more than 5 minutes late was 57%.  The BCO’s view was that the remaining 7 failed to operate.  The overall rate of non-compliance including those services that failed to operate was 73%.

(iv)	The Appellants were invited to comment upon the report.  By a letter dated 9 June 2009, Mr Cosgrove attributed the failure of the services to keep to the registered timetables to on-going road works in the Glasgow and Edinburgh areas.  Once a bus was late, it was difficult for the driver to make up for lost time and he would be late for the remainder of the journey.  This was the reason for the drivers failing to stop at bus stops, although this was not something that the Appellants condoned.  Of the 7 journeys that apparently failed to operate, Mr Cosgrove submitted that they did indeed  do so, the drivers by-passing stops to make up lost time. They had brought to the attention of their drivers, the need to serve all bus stops on their routes and he produced a notice dated 13 March 2009 addressed to their “Scottish Express Drivers” which stated:

“As the driver it is your duty to ensure that all daily services are carried out as per timetables supplied.  Please ensure that you service all stops on the routes and do not assume that because you did not drop someone off at a particular stop that there will be no one waiting on the return journey (our emphasis). These are services and all stops on the timetable must be serviced each time.
Spot checks are liable to be carried out at any time by representatives from any of the following agencies: traffic commissioners office; Transport Scotland, Strathclyde Passenger Transport (SPT) and also in house”.

Mr Cosgrove produced a further letter dated 23 April 2009 for the attention of “Scottish Express Drivers” which stated:

“We gave notice prior to the commencement of the spring and summer routes informing you to ensure that all designated stops on the timetables are served.
On 14 April a partially sighted passenger wanting to go to Forfar on our Service 242 from Fort William was left standing in Canal Street, Perth as the bus did not go to that stop.  
This could have serious repercussions if this passenger decides to inform Transport Scotland of this incident.  As we have stated all designated stops must be served regardless of whether you think there will be anybody standing there or not.  Just because they have not booked does not mean that they will not be standing at a designated stopping place” (our emphasis).  

Mr Cosgrove also produced a “Self Policing Report” which was to be used by the drivers with effect from 8 June 2009 and enclosed reports for each journey monitored with explanations for the failures in each service.  He advised that the Appellants had now bought a Scan 4 tachograph machine to replace the hand held analyser that the Appellants hoped would result in faster and more in depth analysis of tachograph charts.

(v)	Only one of the analysis reports produced by the Appellants failed to blame traffic congestion and road works for the failure of their services to run according to the registered timetables.  

(vi)	On 18 June 2009, Ms Riley visited the Appellants’ operating centre to discuss her report.  Mr Cosgrove told Ms Riley that he undertook his own monitoring of the Appellants services; that the driver responsible for missing Glasgow Airport from his journeys had been disciplined; that when the buses do stop at Glasgow Airport, they do not do so at the bus stops, because Mr Cosgrove refuses to pay the fee for doing this and so his passengers are picked up and dropped off on St Andrews Drive, next to the car park; that the driver of service 225 should have turned into the Bothwell services; that as a result of Ms Riley’s report, the Appellants were going to submit variations to the timetables for the Largs, Ayr and Edinburgh services.  

(vii)	By a letter dated 9 September 2009, the Appellants were called to a public inquiry which was scheduled to take place on 14 October 2009.  As a result of Ms Riley’s report, the Traffic Commissioner wished to consider whether local services were being operated in accordance with registered particulars.  She was also going to consider two drivers hours convictions of one of the Appellants’ drivers, Paul Morgan, at Solihull Magistrates Court on 18 March 2009.  The letter advised the Appellants to seek legal advice.

(viii)	In attendance at the public inquiry were the Appellants, Ms Riley and Mr Coyle.  The Traffic Commissioner ascertained whether Mr Cosgrove, who was speaking on behalf of both Appellants, was content to continue without legal representation.  He said that he was.  The Traffic Commissioner first dealt with Mr Morgan’s convictions and Mr Cosgrove explained that Mr Morgan had been driving on a private hire in the Midlands when he was stopped and it was discovered that two of his breaks in the previous week had been insufficient.   The Appellants used the services of a Mr Rattray who analysed the drivers’ tachographs for them as well as ensuring that the maintenance of the vehicles was all in order.  He brought all matters arising out of tachograph analysis to the attention of the drivers.

(ix)	Ms Riley then spoke to her report which Mr Cosgrove accepted as accurate save that he took issue with a small number of matters.  In relation to the registered bus stop for Loudon Castle, whilst he accepted that he had told Ms Riley in interview that the registered bus stop was the car park at the Castle, in fact, the bus stop was on the main road half a mile away.  He also stated that whilst service 225 used the Travelodge and filling station as a staging point, there was no bus stop at that point but there were bus stops two to three hundred yards along the road on either side.  The Appellants had chosen a land mark rather than a bus stop at which to pick up and drop off passengers.  

(x)	Having entered into a debate about the reasoning behind the use of the Travelodge as a bus stop, the Traffic Commissioner then asked Ms Riley whether she thought that the registrations were in fact a “sham”.  Ms Riley replied that she did not think that they were local registrations.  

(xi)	Mr Cosgrove then went on to to point out on ariel maps where the bus stops were for the Stonehouse and Strathaven stopping points on his services and told the Traffic Commissioner that the reason why service 225 was picking up in Boswell Park rather than outside the Gaiety Theatre was that his drivers were receiving a lot of hostility from other bus drivers and inspectors because of the length of time that the bus would stop at the bus stop to allow for loading and unloading.  So the drivers had started to use Boswell Park instead without informing the Appellant.  He had in fact received two calls from Stagecoach inspectors complaining about the length of time that his service was taking to load and unload and his response had been that this was the stop that had been allocated to the Appellants.  

(xii)	Mr Cosgrove stated that he used three vehicles to operate all of the routes that had been monitored using the regular drivers who had been trained to follow the timetables.  All registered services departed (3,604 departures in total) but the drivers had let him down badly and but for his wife, Mr Cosgrove would have sacked them all.  He had however introduced the self-policing notice which he now accepted was “not enough” and he had fitted three vehicles with tracking devices to ensure that drivers did not miss bus stops.  He did not in fact do his own monitoring as that would cost too much and the tracking devices now seemed to be working quite well.  He accepted that the time tables which were now 4 years old, needed to be “brought into the present day times” and that his timings for the Glasgow area needed to be varied and he was in the process of doing that.  He repeated that he had been let down by his drivers.

(xiii)	In answer to questions put by the Traffic Commissioner, Ms Riley stated that she had seen the buses picking up passengers at the beginning of their journeys and had seen them being dropped off at the end but she had not seen anyone getting on or off at the intervening stops.  She also said that the buses did not look like buses operating as such but rather coaches.  If one did not know otherwise, the journeys looked like coach tours.  One would not think to flag one down expecting that they were operating a local service.  Further, the final destination and service number of the journeys were displayed on a laminated piece of A4 paper in the windscreen without information about the route.

(xiv)	In answer to questions put to Mr Cosgrove by the Traffic Commissioner, he further stated that he called the services “Scottish Express” to differentiate them from Fishers Tours.  He agreed with the Traffic Commissioner’s assessment of the destinations of the registered routes as being “nice places” to go and tourist places in Scotland.  He had registered the routes in 2006 when the Scottish Government had granted free travel for the over sixties and the disabled, which meant that the day tours that the Appellants’ had previously operated were no longer viable when passengers could travel for free.  Why should they pay £12 or £14 for a coach trip? His previous client base had evaporated.  So he registered his excursions as bus registrations ensuring that he had a designated point every fifteen miles or fifteen minutes in order to comply with the regulations and claimed BSOG.  They operated a seat reservation service or passengers just turned up at the point of departure.  They received fares as well as taking passengers who were entitled to concessions.  

(xv)	The Traffic Commissioner put to Mr Cosgrove that his registrations were a sham in that they were not being operated as local services (picking up between the start and finish points) whilst concessionary fares were being claimed.  He accepted that the services had not been operated properly because of the faults of his drivers but his services were not a “sham”.  The problems with his services were now rectified and he intended to keep them operating in a proper manner.  No other operator had registered bus services of this length before and the Appellants were taking on the challenge.  They had abandoned extended tours and found this alternative work more lucrative and with fewer advertising overheads.  He said that to be penalised the maximum permitted of £550 per vehicle was a lot of money when they had started to invest in tracking devices.  He submitted that if the Traffic Commissioner exercised her powers to prohibit the Appellants from registering or operating local services, they would lose many contracts with local authorities and the business would come to an end.  

(xvi)	In her written decision dated 21 December 2009, the Traffic Commissioner quoted the definition of a “local service” as set out in s.2 of the 1985 Act and went through the provisions of s.6 of the 1985 Act; she also referred to regulation 14 of the PSV (Registration of Local Services) (Scotland) Regulations 2001 (particulars as to signage to be displayed on local service vehicles). 

(xvii)	The Traffic Commissioner stated that the compliance report cast doubts about the punctuality of the local services operated by the Appellants and whether they were bona fide registrations.  The monitoring disclosed that drivers habitually missed out sections of the routes that were registered and this behaviour could have been eradicated by the Appellants.  She had no doubt that the routes did not operate as they should have done.  The Traffic Commissioner also found that the requirements in relation to the destination display on the vehicles were not met.  Further, the Appellants had diverted from using bus stops referred to in the registrations and behaved as though the registered services were coach tours.  The only passengers boarding successfully at intermediary points on routes were those who had pre-booked with the Appellants.  The Appellants evidence contained a reference to a partially sighted passenger who had been left at a registered bus stop because the service had not stopped at it: “the service did not operate for her”.  The Appellants letter to the drivers arising out of this incident showed more concern for being caught by Transport Scotland than for the distress of a vulnerable traveller.  

(xviii)	It was clear from the tachograph evidence produced at the hearing by the Appellants that the journeys that the drivers were undertaking did not match the registered details of the services they were purporting to provide.  Whilst the Appellants blamed the drivers for the failure to operate services according to the registered details, the Appellants had, as a result of their own tachograph information, knowledge that the services were not compliant with the registered particulars.  Yet the Appellants did not de-register the services or vary them and, of significance, had not applied to vary the services since the monitoring exercise had taken place.

(xix)	The Traffic Commissioner noted that it was not in dispute that the purpose of the registration of the services was to take advantage of the concessionary fare scheme that had been introduced by the Scottish Government.  The Appellants sought to attract passengers to the services who might have been deflected from coach tours or trips by reason of the price.  The services were attractive and popular.

(xx)	The Traffic Commissioner discounted the Appellants evidence of recent measures to track their vehicles and their “self policing” reports as they had arisen as a response to the compliance report and it was apparent that the Appellants had held a reasonable apprehension that their services might attract attention from the regulatory agencies prior to the monitoring exercise.  It was therefore difficult to assess how genuine the Appellants were in their efforts at compliance, particularly in the absence of variations of the registered details.

(xxi)	Even taking account of delays through traffic congestion, the Appellants’ registered services were not capable of being operated compliantly.  Operators registering local services have to provide for such delays in their timetables and it is possible to operate long distance local service registrations if that is done.  The Traffic Commissioner concluded that the Appellants were taking advantage of the concessionary fare scheme, the availability of BSOG and the facility within the regulations to allow for long distance service registrations but they had blatantly failed to operate compliantly.  The Traffic Commissioner had no doubt that inclusion of places such as Muirhead, Glasgow Airport and Glasgow SECC into the registrations, was a simple device to qualify for concessionary travel and that there was never a commitment on the part of the Appellants to serve passengers from those locations.  The Traffic Commissioner relied further on the lack of bus stops at some registered stopping places and that running times were not possible.  

(xxii)	The Traffic Commissioner concluded that the registrations were not local services within the meaning of s.2 of the 1985 Act and that the services had not operated.  There was therefore a breach of s.6 of the 1985 Act.  As the call up letter did not raise the issue of repute, the Traffic Commissioner exercised her powers under s.26 of the 1985 Act and determined that the most appropriate course of action was to cancel the six services that had been monitored with effect from 23.59 on 31 January 2010 and to exercise her powers under s.39 of the 2001 Act and order the maximum penalty of £12,650 to be paid by the Appellants by 31 January 2010.  The Traffic Commissioner felt that this action was appropriate and proportionate for an operator who had ploughed a lucrative seam and who had taken business away from others knowing that their registrations could not be operated compliantly.  The level of non-compliance even allowing for road works fell within the band for the maximum penalty.  Whilst the Appellants’ other services were not called to the public inquiry and the Appellants had not given evidence upon them, the Traffic Commissioner invited the Appellants to cancel all long distance local services in order to allow them to revert to the registrations that could be operated compliantly.  If the Appellants failed to follow this invitation, the Traffic Commissioner would consider calling the Appellants to a further public inquiry so that she could consider those other registered services.  The Traffic Commissioner noted that her orders did not prevent the Appellants from engaging in private hire work or fulfilling their obligations under school contracts, which she considered to be a proportionate and balanced approach.  

3.	At the hearing of this appeal, the Appellants were represented by Mr Lyndhurst of Counsel, who two days before the hearing submitted amended grounds of appeal that included an allegation of bias on the part of the Traffic Commissioner.  As this is a very serious allegation to make, Mr Lyndhurst was required to clarify the allegation at the outset of the hearing of this appeal so that the Tribunal could determine whether it was necessary to adjourn the appeal to allow affidavit evidence to be submitted and to allow the Traffic Commissioner and any other persons present at the public inquiry to comment upon the allegations (see Transport Tribunal Appeal 2004/426 EA Scaffolding and Systems Limited et al, paragraph 76 “Allegations of Bias or Procedural Error” and the practice direction contained therein).  Mr Lyndhurst submitted that whilst there was no evidence of bias prior to the hearing, bias could be inferred from reading the transcript and that an independent observer might perceive bias on the part of the Traffic Commissioner having done so.  He relied upon the Traffic Commissioner’s comments about the Appellants being more concerned by “being caught by Transport Scotland than the distress for a potentially vulnerable traveller” (see paragraph 2(xvii) above); the Traffic Commissioner’s description of the destinations of the Appellants registered services as being “nice places to visit” (see paragraph 2(xiv) above); the Appellants alleged motives for registration of the services; her doubt about the genuineness of the Appellants’ efforts at compliance; the Appellants’ alleged lack of commitment to serve passengers from the locations not served by the buses despite being registered stopping places (see paragraph 2(xiv) above); and her accusation that the registrations were a “sham”.  

4.	Having considered the basis upon which the allegation of bias was put, we were satisfied that it was so wholly misconceived that it did not warrant an adjournment so as enable the practice direction set out in EA Scaffolding to be complied with.  All of the observations and findings of fact that the Traffic Commissioner made were based upon the evidence before her and cannot be faulted.  Any “informed impartial observer” (and that is the test) with a knowledge of local service registration could not have perceived any element of bias in this case, which is the worst case of failure to operate services according to their registrations that this Tribunal as constituted has ever dealt with.  The Traffic Commissioner’s remarks were measured in the circumstances.   We do however, have some concerns about the procedure adopted by the Traffic Commissioner.  These will be dealt with below but they could not found an allegation of bias.

5.	Mr Lyndhurst’s main point was that there was a breach of natural justice in the way that the Appellants were dealt with.  Firstly there was no reference in Ms Riley’s monitoring report about the Appellants’ registrations being or suspected of being a “sham”.  Neither was this suspicion or issue raised in the call up letter.  The Appellants were taken by surprise by this allegation.  The breach of natural justice was exacerbated by the Traffic Commissioner failing to adjourn the public inquiry so as to allow the Appellants to take legal advice once the issue had been raised.  Whilst Mr Cosgrove did not ask for an adjournment, there is a special duty upon Traffic Commissioners when dealing with unrepresented operators.  Mr Lyndhurst referred the Tribunal to Transport Tribunal Appeals 72/2001 Alan R Brooks and 5/2000 Marilyn Williams t/a Cled Williams Coaches.  Further, as there was no reference to the inadequacies of the signage displayed on the buses in Ms Riley’s monitoring report or in the call up letter; that again was a matter that Mr Cosgrove was not expecting to have to deal with.  Mr Lyndhurst also submitted that s.2 of the Transport Act 1985 should have been referred to in the call up letter as it formed part of the Traffic Commissioner’s decision.

6.	We agree that had the Traffic Commissioner suspected that the Appellants’ registrations were a “sham” prior to the public inquiry taking place, then that should have been raised in the call up letter in the absence of any reference to such a suspicion being held by Ms Riley or Mr Coyle in the monitoring report.  Further, the issue of bus signage should also have been raised in the call up letter for the same reasons.  However, it is often the case that issues such as these do not arise until the evidence is probed by the Traffic Commissioner during a hearing.  It is clear that the issue of signage was something that Ms Riley had noted but had failed to deal with in her monitoring report; likewise the irresistible conclusion that the Appellants’ registrations were a sham was not something she had dealt with.  Therefore the absence of reference to both of these issues in the call up letter may be understandable in the circumstances.  However, once an allegation of sham registrations was made, then the operator should have been given an opportunity to decide whether they required an adjournment or not.  We do not consider that the failure to mention signage in the call up letter to be as important as the nature of the registrations because the Traffic Commissioner concentrated on the failure of the Appellants to run registrations according to their time tables in making the orders that she made.  Furthermore we do not accept that the call up letter was defective because of the absence of any reference to s.2 of the Transport Act 1985 which simply contains the definition of “local service”, something which was very much in the mind of Mr Cosgrove when giving his evidence.

7.	But what are the consequences of the breach of natural justice that we have accepted?  If the Traffic Commissioner had adjourned, we are of the view, that in all likelihood, a fresh call up letter would have been issued which would have mentioned “sham registrations” and inadequate signage; it would have raised good repute as an issue; it would have brought into consideration the Appellants’ other registrations for long distance services, particularly in view of the fact that the complaint concerning the partially sighted passenger who was left waiting in Perth for a service to Forfar was in fact waiting for service 242, which was one of the long distance services that had not been monitored by Ms Riley.   Even if only “sham registrations” and signage issues had been raised in the fresh call up letter, we fail to see, against the background of overwhelming evidence of a failure to operate registered services, that the outcome of the public inquiry would have been any different.  Non-compliance of 73% warranted the highest penalty (and it was accepted by Mr Lyndhurst that the maximum was within the range of penalty available to the Traffic Commissioner in this case) and it was inevitable. Even if “sham registrations” were not proved at the end of day, the Traffic Commissioner would still have been left with an operator who had failed to register services that were capable of being complied with; who was well aware of that and was aware that their drivers were failing to service each part of the registered routes (as evidenced by the letters of 13 March 2009, the incident of 19 April 2009 and the letter to drivers of 23 April following that incident); who had acknowledged that their registrations no longer reflected the traffic situation four years after the registrations had been lodged and had asserted to Ms Riley that they were going to vary the registration of routes, which had not been undertaken by the time of the public inquiry, five months later (or indeed by the date of the appeal hearing).  We are satisfied that it was an act of mercy on the part of the Traffic Commissioner not to adjourn in the circumstances of this case.  At the very least, the good repute of the Appellants must be significantly tarnished.  We have come to the conclusion that the acknowledged breach of natural justice, does not in this case, justify a finding by this Tribunal that the appeal should be allowed.  

8.	Mr Lyndhurst then made various submissions all of which stem from the breach of natural justice point set out above and which we have accepted and we are satisfied that they do not require repetition in the body of this decision.  He also submitted that:

(i)	 it was wrong for the Traffic Commissioner to have relied upon the letter concerning the partially sighted woman left stranded in Perth because it had not been included in the call up letter and had reference to the letter been made, or had an adjournment been ordered, the Appellants at the adjourned hearing would have been able to inform the Traffic Commissioner that Mrs Cosgrove had personally taken a bunch of flowers to the unfortunate woman to apologise for what had happened.  We are satisfied that there is nothing in this point.  The letter was part of the Appellants’ evidence produced to Ms Riley and the personal visit cannot mitigate for the failure to run a bus service; 

(ii)	The Traffic Commissioner’s interpretation of the letter of 23 April 2009 was wrong.  We consider it to be entirely right;  

(iii)	The Traffic Commissioner should not have referred to the destinations of the monitored routes (which Mr Cosgrove himself accepted used to feature in his excursion schedules) as “nice places”.  We reject this submission bearing in mind Mr Cosgrove’s evidence on the point

(iv)	The Traffic Commissioner should not have found that the registrations were a “sham”.  We are satisfied that this was an irresistible conclusion in the circumstances; 

(v)	The Traffic Commissioner failed to state what weight she placed on Mr Morgan’s convictions.  We are satisfied that she attached no weight at all to the convictions.

(vi)	The Traffic Commissioner failed to take account of the fact that local councils were responsible for disseminating information about the position of bus stops.  Whilst that might be the case, in this instance, bus stops were not available for use or were not being used or were not being serviced by the services; 

(vii)	The Traffic Commissioner should not have discounted the recent steps taken by the Appellants to ensure compliance.  For the reasons that we set out  in paragraph 6 above, we disagree.

9.	Mr Lyndhurst then took us through the transcript to reinforce the points that he had made.  Bearing in mind that we had read all of the papers and had grasped the issues, this exercise was not necessary in the circumstances.

10.	In the premises we dismiss the appeal.  

11.	By way of a footnote, we have previously attempted to discourage legal representatives from lodging generalised grounds of appeal.  In this appeal, paragraph 1 of the amended grounds read as follows:

The Traffic Commissioner for Scotland in reaching her decision erred in fact and law, and misdirected herself in law by: misconstruing and failing to observe the requirements of the relevant statutory provision and regulations; taking into account irrelevant factors and leaving out of account relevant factors; applying the wrong tests in respect of local services and their provision; failing to have regard to the evidence before her; having regard to her own speculations and reaching a decision which no reasonable Commissioner, properly directing herself could have reached in all the circumstances and on the evidence before her;”

Ground 2 was “in addition to and without prejudice to the foregoing” and pleaded acts of ultra vires, misdirections on the law, errors of law and of course bias on the part of the Traffic Commissioner.  Such generalised grounds of appeal as that set out above, are of no assistance to the Tribunal in identifying the issues in an appeal and are to be discouraged.  

Her Honour Judge Beech
9 April 2010