PUBLISH AND BE DAMNED!
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Jr was that redoubtable and forthright admiral, Lord Fisher, who once used the above nononsense terms. But he was not addressing Licensing Authorities, nor was he referring to publication of A and B licence applications in the LAs' scarcely exciting or entertaining, but nevertheless invaluable, Applications and Decisions.
This train of thought was set in motion by a fairly recent appeal decision: that of Mr. H. C. Horn v British Railways Board and the Transport Holding Company. It was a proposed take-over of a one A-licensed vehicle business of S. Rush Ltd. by Mr. Horn, a haulier with three A vehicles. Because the application was for a licence to expire not later than the expiry date of the Rush licence, it came within the scope of Section 173(1) of the Road Traffic Act, 1960.
As we have had cause to mention before in Casebook, that section exempts from compulsory publication four types of applications: (a) those which an LA is bound to grant (i.e. C licence and A Contract licence applications); (b) applications of so trivial a nature that it is not necessary that an opportunity should be given for objection (e.g. a variation applicAtion to substitute one vehicle for another with only a slight increase in unladen weight); (c) proposed take-overs of the HornRush kind; (d) short term licence applications "where the LA is of opinion that the application has been made with reasonable expedition and that the demand for the use of the vehicles. . . is so urgent as to render compliance with the requirements of this section (i.e. publication, consideration of objections and so on) impracticable".
In the Horn-Rush case the LA decided to publish notice of the application although he was not obliged to do so. When British Railways and the Transport Holding Company objected, he decided to hear them, although again he was not bound to take their objections into consideration. Finally he refused the take-over application on the ground that S. Rush Ltd. had no haulage business in existence. Mr. Horn thereupon appealed.
Much the same sort of caper then took place. Mr. Horn need not have sent a copy of his appeal to the two objectors (because they were non-statutory objectors), but he did. The objectors were not citified as a right to appear before the appeal Tribunal, but they did. The Tribunal was not bound to hear them, but it did (through their advocate). And the appeal was subsequently dismissed.
Just the opposite
In two other takeover appeals the circumstances were just the opposite. In both Farrs Depositories and Others v N. Tullett (Metro
politan traffic area) and in Broadway Haulage and Others v G. W. Fleming (Northern traffic area) the appeals by objectors against grants were dismissed on the ground that, not being statutory objectors, they had no right of appeal.
Almost every traffic area has had trouble with non-notifiable applications which for one special reason or another have been published by LAs. The occasion is usually a takeover (as in Horn-Rush) or a Contract A application (when some clause in the contract, usually connected with the rate to be charged, is suspect).
An LA's motive in publishing what he is not obliged to publish is clear: he hopes to get additional information from some unexpected source. He is laying down bait; and eventually someone is nearly certain to bite. An objection comes in, disguised sometimes as a "representation". Then the fun starts.
Shall there be a formal public hearing; is the "objector" to be allowed to crossexamine witnesses and to give evidence; will he have a right of appeal if the application is granted; is there a right of audience before the Transport Tribunal by the objector if the applicant appeals against refusal? These are some of the tricky questions which arise when LAs depart from the straight and narrow path signposted in the statutes.
In any amending legislation it would be well if some of these uncertainties were removed. Applicants and objectors should at all times know clearly where they stand on procedure. It is one thing to leave openings for the exercise of discretion in the concrete-clad mass of case law which has been built up over the years on the merits of applications. It is quite another matter to leave a discretionary gap in procedure.
Legal or lay representation This is another field in which some change is needed. Licensing Authorities' "courts" are relatively informal. Witnesses are not sworn, solicitors and barristers do not robe, consultants and officials of associations can appear for haulier "clients".
But what a different picture the Transport Tribunal displays! When appeals went to the old Appeals Tribunal there was a right of audience given to any officer of any association who was acting for a party to an appeal, as well as to members of the legal profession and to applicants and respondents who appeared in person. But when the Transport Tribunal took over that attitude changed. In 1962 the secretary of ahauliers' association (not the RHA), who had been present at the hearing before the LA, wished to appear before the Transport Tribunal on behalf of a respondent. He was not allowed to do so. In 1964 a transport consultant signed a notice of appeal as "agent for the appellant". The Tribunal ruled that since the consultant's name did not appear in the Law List, he must be presumed not to be a solicitor. The appeal was therefore held to be improperly constituted and the Tribunal declined to hear it.
According to Rule 27 Rule 27 of the Tribunal (made in 1955) reads: "A person may appear and be heard in person or by counsel or solicitor. . . A party may appear and be heard by an officer or employee of the party or, if it appears to the court or to the registrar in the case of a hearing before him to be for any special reason to be desirable, by any other representative."
But why should there have to be special reasons for the latter representatives to be heard? What .sort of special reasons would gain an audience? Why should there be a discretionary element in such representation? Why not a right?
In parallel appeals to the Minister of Transport concerning road passenger services there is no uncertainty on this score. Transport consultants, officers of associations—anyone in fact who is properly authorized by the appellant or respondent— is allowed to conduct a road service licence appeal. And why not? If the appellant or respondent has sufficient confidence to entrust his case to his chosen representative, that should be enough.
Cause of confusion Another angle to this question of representation is worth mentioning. It arises from time to time in several traffic areas. Employees of a haulage concern who want both to give evidence and to conduct their own case, cross-examining witnesses and making final submissions, have been challenged on occasion by legal representatives appearing for the opposing side.
Despite the challenges, this procedure is usually allowed by LAs to continue. But it has drawbacks, as anyone who has attended licensing courts consistently would admit. The main difficulty is one of disentangling evidence from advocacy. Confusion is thus sometimes created. Still, it would be unfortunate if the practice had to be stopped. It certainly saves expense; and so long A it is not flagrantly abused, no great harm is done.