Appellants who failed to appear for challenge to Traffic Commissioner ruling have case dismissed
A father and daughter who were seeking leave to appeal a tribunal decision but failed to turn up to court because they got the date of the hearing wrong have had their application dismissed.
A judge in the Inner House of the Court of Session refused the application having considered the papers and notes of argument, but after the ex tempore judgment was given the applicants emailed the clerk explaining that they had diaried the case for the following day.
Nevertheless, Lady Paton ruled that there was “no merit” in the application.
The court heard that Carrie McKendry and Douglas McKendry were seeking leave to appeal a decision of the Upper Tribunal, dismissing their appeal against a decision of the Scottish Traffic Commissioner after two public passenger owned by the family business McKendry Coaches were detained in July 2016 on the basis that they had been operating without the necessary licence.
Vehicle 1, a 56-seater coach, had just taken passengers to the ‘T in the Park’ music festival, while vehicle 2, another 56-seater coach, was in the course of carrying passengers to the same event.
Miss McKendry applied to the commission for return of vehicle 1 and Mr McKendry applied for return of vehicle 2, claiming that they were the owners of the respective coaches.
However, the commissioner rejected the applications after concluding that both vehicles were owned by a partnership whose members were Mr McKendry and his wife Ann McKendry rather than the applicants seeking return of the vehicles.
The commissioner also concluded that they were both aware that the vehicles were being operated as public service vehicles without the necessary licence.
The Upper Tribunal Administrative Appeals Chamber upheld the decision and the applicants sought permission to appeal, but when the matter called on 30 January 2018 there was no appearance for the applicants, nor any communication from them to explain their absence.
Having been invited by the respondent to make a decision, the judge held that there was “no merit” in the appeal.
In a written opinion, Lady Paton said: “In terms of Rule of Court 41.57(2), permission to appeal will not be granted unless the court considers that (a) the proposed appeal would raise some important point of principle or (b) there is some other compelling reason for the court to hear the appeal.
“The Commissioner’s conclusions were that: (a) the two buses were owned by a partnership comprising Douglas McKendry and Ann McKendry; and (b) even if that was incorrect, and even if one bus was owned by Douglas McKendry and the other by Carrie McKendry, each of these people (ie each of the applicants) knew that his or her bus was being used to transport passengers to T in the Park without the necessary PSV licence, thus failing to satisfy Regulation 10(3)(c) of the Public Service Vehicles (Enforcement Powers) Regulations 2009/1964.
“The second conclusion reached by the Commissioner, concerning the knowledge of the applicants, was one which was clearly open to the first instance court on the basis of the evidence led by way of witnesses and productions… ven if additional submissions had been made concerning the Partnership Act 1890 that would not have resulted in success for the applicants.”
She added: “Ultimately, the Upper Tribunal detected no error in the Commissioner’s approach and conclusions. I agree. Nothing which could be said by the applicants in court today, so far as I am aware, would persuade me that either the Commissioner or the Upper Tribunal erred in any way. Moreover I am not satisfied that the proposed appeal would raise some important point of principle, or that there is some other compelling reason for the court to hear the appeal. Thus Rule of Court 41.57 is not satisfied.”
Once the court had adjourned, the clerk of court advised that he had received an email from McKendry Coaches, stating that they had got the date of the court hearing wrong, and had diaried it for 31 January 2018. But the judge nevertheless adhered to her decision to refuse the application for permission to appeal, for the reasons given.
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