Coakley & Ors, Re an order Transport Tribunal

Factual and Procedural Background

These appeals arise from a decision of the traffic commissioner for the Scottish Traffic Area dated 12 October 2001, which involved (a) the revocation of a Public Service Vehicle (PSV) operator's licence held by Company A, (b) refusal to grant a PSV licence to Company B, and (c) a five-year disqualification of both Company A and an individual associated with it from holding a PSV licence. The appellants challenged this decision before the transport tribunal, which dismissed their appeals on 6 February 2002. The appellants then appealed to the Court of Session. The sole issue considered by the court at this stage was whether the traffic commissioner had the locus to be represented at the hearing of the appeal before the Court of Session.

Legal Issues Presented

1. Whether the traffic commissioner has the legal standing (locus) to appear and be represented at the hearing of an appeal to the Court of Session from the transport tribunal concerning decisions on PSV operators' licences.
2. Whether the Secretary of State for Transport is entitled to appear and be heard at such appeals, particularly when not represented before the transport tribunal.
3. What is the proper role of the traffic commissioner and the Secretary of State in appeals concerning PSV operator licensing decisions under the relevant statutory framework.

Arguments of the Parties

Appellants' Arguments

• The Secretary of State is the proper contradictor in appeals from the traffic commissioner to the transport tribunal and subsequently to the Court of Session, provided the Secretary of State had appeared before the tribunal.
• If the Secretary of State had not appeared before the tribunal, he should not have an automatic right to appear in the Court of Session but must seek leave of the court.
• The traffic commissioner, having not been permitted to appear before the transport tribunal to defend the decision on merits or law, should not be allowed to appear for the first time in the Court of Session.
• Allowing both the Secretary of State and the traffic commissioner to appear on legal issues before the Court of Session would be unreasonable and could lead to unnecessary expense for appellants.

Secretary of State's Arguments

• The Secretary of State is responsible for the proper administration of the statutory provisions governing PSV licensing and is entitled to appear and be heard before the transport tribunal and the Court of Session.
• The traffic commissioner is the proper contradictor on the merits of appeals involving his decisions, while the Secretary of State intervenes primarily on points of law or public interest issues, including human rights.
• The Secretary of State does not wish to intervene in the merits of appeals but ensures that important legal issues are properly argued.
• In some cases, both the traffic commissioner and Secretary of State may appear before the Court of Session for their respective interests.

Traffic Commissioner's Arguments

• The traffic commissioner contends he is the proper contradictor on appeals to the Court of Session concerning decisions he made and should be entitled to appear as an independent regulator.
• By analogy with licensing boards under the Licensing (Scotland) Act 1976, which have a statutory right to appear on appeals against their decisions, the traffic commissioner should similarly be permitted to appear.
• The traffic commissioner has investigative functions and a statutory right to appeal on points of law in other contexts, supporting his entitlement to appear.
• The traffic commissioner and Secretary of State should both be entitled to appear before the Court of Session in appeals from the transport tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing PSV operator licensing, focusing on the Public Passenger Vehicles Act 1981 and the Transport Act 1985, including the transport tribunal's powers and the roles of the traffic commissioner and the Secretary of State. It noted that the traffic commissioner’s decisions can be appealed to the transport tribunal, which has full jurisdiction on law and fact, but the traffic commissioner is expressly barred from being a party to appeals before the tribunal.

Given that the traffic commissioner cannot appear before the tribunal, the court found it difficult to justify allowing the traffic commissioner to appear for the first time before the Court of Session on legal issues. The court also considered the risk of the traffic commissioner defending factual credibility issues on appeal and the potential complications if the case were remitted back to the commissioner for rehearing.

The court distinguished the traffic commissioner from licensing boards under the Licensing (Scotland) Act 1976, noting differences in statutory provisions and roles. It emphasized that the Secretary of State has a statutory right to appear and be heard before the tribunal and the Court of Session and represents the public interest in licensing matters, including legal and human rights issues.

The court further concluded that allowing both the traffic commissioner and Secretary of State to appear on legal issues in the Court of Session would be inappropriate and could lead to duplication and increased costs. It held that the Secretary of State is the proper contradictor on appeals to the Court of Session concerning traffic commissioner decisions.

Regarding whether the Secretary of State may appear if not represented before the transport tribunal, the court held that the Secretary of State requires leave of the court to appear in such circumstances, although the court may invite the Secretary of State to appear if appropriate.

Holding and Implications

The court held that:

1. The traffic commissioner has no locus to appear or be represented at the hearing of an appeal to the Court of Session from the transport tribunal concerning decisions on PSV operator's licences.
2. The Secretary of State for Transport is entitled to appear and be heard at the Court of Session if he had been represented before the transport tribunal.
3. If the Secretary of State was not represented before the transport tribunal, he may only appear at the Court of Session with the leave or at the invitation of the court.

The direct effect of this decision is to clarify the proper parties entitled to appear on appeals regarding traffic commissioner decisions on PSV licences, limiting the traffic commissioner’s role in Court of Session appeals and confirming the Secretary of State’s primary role as the public interest representative. The decision does not establish new precedent beyond the parties but resolves procedural and locus issues relevant to future appeals under the Transport Act 1985.