“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…”
“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.””
“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.”
“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 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.”
“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.”
“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.”
“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.”
“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 3rd to4th April 2008 had, in fact, been disclosed.”
“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.”
“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.”
“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.”
“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 of28th May 2009 ]. But she did not.”