[2005] CSOH 160


in the Petition of



for Judicial Review of a decision of the Strathclyde Passenger Transport Executive to refuse payment of monies due under and in terms of the Strathclyde Concessionary Travel Scheme and the Transport Act 1985, Sections 93 and 94.


Petitioner: Lindhorst; Russel & Aitken

Respondent: Anderson, Q.C.; Simpson & Marwick, W.S.

23 November 2005


[1]In this application for judicial review the petitioner, who operates local bus services within the Strathclyde area, now seeks only a declaratory finding in terms of article 2(i) of his petition, to the effect that "... the decision taken by the Respondent to refuse to make payment in full of the concessionary travel compensation due to the Petitioner under the Strathclyde Concessionary Travel Scheme ..." (hereinafter referred to as "the Scheme") ... "for the ... periods 1 July 2003 to 30 September 2003, 1 October 2003 to 31 December 2003, 1 January 2004 to 31 March 2004, and 1 April 2004 to 10 June 2004 is unlawful ...". The only compearing respondents are the Strathclyde Passenger Transport Executive ("the respondents") who, although administering the Scheme as agents on behalf of the Strathclyde Passenger Transport Authority and twelve unitary councils, accept that for present purposes they are the proper contradictors and that their third plea-in-law should accordingly be repelled. In consequence of certain undertakings given by the respondents, the details of which are not material for present purposes, the petitioner seeks no further order from the court at this stage.

[2]The Scheme was originally established in 1986 under the provisions of section 93 of the Transport Act 1985. The petitioner is a supplier of local bus services within the geographical area covered by the Scheme. On his own account or through sub-contractors, he operates specified routes under public service vehicle ("PSV") operators' licences granted by the Traffic Commissioner to himself and others under the Public Passenger Vehicles Act 1981. Although in practice tending to participate in the Scheme on a voluntary basis, eligible licence holders are obliged to provide concessionary travel to inter alios elderly, blind and disabled passengers, and in terms of the Scheme they are then entitled to receive appropriate compensatory rebates from the respondents, as the responsible authority, on a quarterly basis.

[3]The substantive issue between the parties concerns the non-payment of claimed rebates by the respondents to the petitioner for the four quarterly periods commencing on 1 July 2003. The petitioner's position is, in summary, that bus services having been provided by eligible operators throughout the periods in question, and travel concessions having been afforded to passengers in accordance with the Scheme, he cannot now lawfully be denied payment of applicable rebates totalling more than £400,000. The respondents, on the other hand, maintain that they were, and are, legally entitled to withhold payment in the circumstances of this case, and that in any event the petitioner's application for judicial review comes so late that it should be refused on that ground also.

Submissions for the petitioner

[4]In developing the petitioner's argument at the first hearing of the petition, counsel began by referring me to European Council directives 96/26/EC and 98/76/EC, which inter alia set out general criteria for non-discriminatory admission to the operation of public passenger vehicle services. These criteria, comprising essentially (i) good repute, (ii) appropriate financial standing and (iii) professional competence, are reflected in current domestic legislation. In particular, they constitute the primary criteria to be applied by the Traffic Commissioner under the Public Passenger Vehicles Act 1981, as amended, in deciding whether PSV operators' licences should be granted, varied or revoked. On a consideration of the relevant provisions of that Act, of the Transport Act 1985, of the Road Transport Act 1988 and of the Travel Concessions (Eligible Services) (Scotland) Order 2002, counsel maintained that jurisdictional competence to make licensing decisions rested with the Traffic Commissioner alone; that jurisdictional competence in the field of PSV inspection and testing rested with the Secretary of State for Transport; and that responsibility for taking action in respect of criminal offences under the relevant legislation rested with the police. The respondents, in his submission, had no regulatory role to play in any of these areas. Their responsibility was merely to administer the Scheme in accordance with it terms, and if PSV operations over a particular period or periods were treated as lawful by these other competent authorities it was not open to the respondents to take any different view in discharging their functions under the Scheme. Significantly, the conditions of eligibility set forth in the Travel Concessions (Eligible Services) (Scotland) Order 2002 contained no reference to the licensing status of operators.

[5]The problem in this case, according to counsel, arose in about 2001 when the suitability of the Coakley Bus Company Ltd and one of its directors, Edward Coakley, to hold and operate PSV licences came under scrutiny. After sundry proceedings, the Deputy Transport Commissioner on 12 October 2001 purported to revoke that company's licence, numbered PM2422, under which inter alia certain routes were operated under sub-contract from the petitioner. On 6 February 2002, the Transport Tribunal purported to uphold that decision. However, on 20 March 2002, the court formally suspended these decisions ad interim (apparently for the avoidance of any doubt as to the automatic effect of the relevant appeals), and on 17 December 2003 the decisions in question were reduced on the ground that breaches of natural justice had occurred. These proceedings are now reported sub nom. Coakley v Secretary of State for Transport 2004 SC 398.

[6]On 7 February 2003, while the foregoing appeal was still in dependence, a winding up order was made in respect of the Coakley Bus Company Ltd. By reference to regulation 23 of the Public Service Vehicles (Operators' Licences) Regulations 1995, counsel submitted that this automatically revoked the relevant licence. The Traffic Commissioner was aware, as early as January 2003, that the relevant winding up petition had been presented. On 29 April 2003, however, the Traffic Commissioner issued a PSV operator's licence which bore to specify the company's name on the title page and carried the same reference number as the previous licence, the status of which was still under appeal. A fee of £3,170 was levied and received in that connection. On the strength of this licence, local bus services with appropriate travel concessions continued to be provided on the routes in question. Shortly thereafter, on 10 June 2003, the Deputy Transport Commissioner purported to revoke this latest licence on the ground of the liquidated company's lack of financial standing. At the same time he rejected the claim by Patricia Coakley, a director of the company, that the licence must be taken to have been issued to her as an individual. On 23 September 2003 the Transport Tribunal purported to uphold that decision. An appeal having been timeously marked, the court on 21 November 2003 formally suspended these decisions ad interim (again apparently for the avoidance of any doubt as to the automatic effect of the relevant appeal). The appeal has not yet been determined on its merits.

[7]In these circumstances, it was argued, concessionary travel had at all material times been provided under a PSV operator's licence which was ex facie valid and subsisting. The vehicles concerned had throughout been susceptible to inspection and testing by the Secretary of State for Transport. No action had been taken by the police, or through any court, to suspend or terminate unlicensed or otherwise unlawful operations. Moreover, the purported adverse decisions of the Deputy Transport Commissioner and Transport Tribunal had been suspended ad interim by the court and, in the earlier case, reduced. Accordingly, relevant bus services and travel concessions having been provided during the relevant quarterly periods, without practical hindrance from the competent authorities, the respondents had no statutory warrant or other lawful basis for withholding payment of the disputed rebates. The licence of 29 April 2003 might have been issued in error; there might be doubt as to the identity of the intended licensee; but where an ex facie regular licence had been issued on payment of a fee, and where relevant bus services (including concessionary travel) had thereafter been provided for more than a year, the petitioner's claim for compensatory rebates was unanswerable.

[8]A subsidiary argument advanced by counsel was that the respondents' actings had in any event been inconsistent and irrational. In particular, as recently as February 2005, they had made payment to the petitioner of £4,563.42 in name of rebates under the associated National Free Travel Scheme for the Blind, which were calculated by reference to the level of concessionary travel provided. In addition, by reference to the petitioner's averments at pp.12A-D of the Record, which were said to reflect counsel's "understanding", the respondents had acted in an inconsistent and discriminatory fashion by paying out analogous claims under the Scheme while purporting to reject the claim advanced by the petitioner. However, since the factual position was not entirely clear, and since the averments in question had only recently been made, counsel acknowledged that a second hearing might be required on this issue if it turned out to be material.

[9]Counsel also maintained that the respondents' plea of mora was ill-founded and should be repelled. No applicable statutory time limit had been exceeded. A new licence which appeared to resolve all outstanding difficulties had been issued in June 2004. The Blind Scheme payment had been forthcoming as late as February 2005. And, most importantly of all, the principal issue affected no-one beyond the petitioner and the respondents. The petitioner had therefore acted reasonably in seeking an amicable resolution of matters before finally coming to Court with the present application for judicial review.

[10]In all the circumstances, it was submitted, the respondents' conduct in refusing full payment of rebates where concessionary travel had admittedly been provided over a lengthy period was indefensible. No proper legal basis for such refusal could be identified, and the respondents' behaviour was irrational and inconsistent. The petitioner was thus entitled to the declaratory order sought.

Submissions for the respondents

[11]At the outset of his reply counsel for the respondents reminded me that this was a petition for judicial review, and not an appeal or re-hearing. The supervisory jurisdiction of the court was only available to check an "excess of jurisdiction" on the part of a public authority, as that phrase was defined by Lord President Hope in West v Secretary of State for Scotland 1992 SC 385, at page 422ff. Here the petitioner had failed to state a relevant case on either of the two main questions of law arising, namely (i) At the material time, was there an operative licence in force?, and (ii) Whether such a licence existed or not, did the respondents have power to withhold payment of rebates in the circumstances of this case? According to counsel, the respondents' position was and remained as set out in their letter to the petitioner's solicitors of 12 January 2004 (Production 6/3). This letter set out their reasons for withholding payment as follows:

"It is our understanding that the licence revoked by the Deputy Traffic Commissioner with effect from 10 June 2003, was PM0002422, in the name of Coakley Bus Co Ltd. Neither I nor my client are aware of Patricia Coakley possessing an operator's licence which would allow the operation of the registered services on behalf of Mr Nelson. Accordingly, it would not be appropriate for payment to be made.

If you are in a position to demonstrate that Patricia Coakley possesses an appropriate operator's licence this decision can of course be reconsidered."

[12]In submitting that this was not a case in which, as suggested for the petitioner, the ineptitude of public authorities had caused difficulties for blameless operators, counsel took me in some detail through the history of events as narrated in the decision of the Transport Tribunal on 23 September 2003, and in the opinion of the court on the previous appeal (2004 SC 398, at pages 399-402). As could be seen from paragraph 2(i)-(v) of the former decision, licence number PM2422 was first issued to the Coakley Bus Company Ltd in May 1997, covering the operation of 70 vehicles; the directors of the company were Edward Coakley and Mrs Patricia Coakley; at some later date the Coakleys applied for a licence in the name of "Central Bus" instead; in 2001, on the basis of serious adverse findings at a public inquiry into the conduct and standing of the company and of Edward Coakley, the Deputy Transport Commissioner revoked the company's licence; that revocation was subsequently suspended ad interim by the court; but on 7 February 2003 the company went into liquidation. Thereafter, as described in paragraph 2(vi)-(xii), at the same time as the liquidator's disclaimer of any wish to carry on the company's business, a claim was advanced to the effect that Patricia Coakley was the true holder of the licence issued on 29 April 2003; at the request of Mr and Mrs Coakley a public inquiry was then held, at which counsel for the present petitioner appeared for Mrs Coakley and for "Central Bus"; the claim on Mrs Coakley's behalf was rejected as inconsistent with the terms of the relevant application; the liquidator expressed concern on various matters, including the destruction of the company's books in a fire; and licence PM2422 was then revoked on the ground of the lack of financial standing of the liquidated company. Counsel accepted, however, that that decision had, in its turn, been suspended ad interim by the court on 21 November 2003 pending resolution of the appeal which remains undetermined.

[13]As regards the report of the earlier appeal proceedings, the decision was founded on a breach of natural justice, and the appellants' arguments on the merits of their appeal were neither upheld nor rejected. In addition, Central Bus were treated as a company without a licence, and the complaints against Mr Coakley were treated as academic in view of his stated intention to relinquish all involvement in PSV operations.

[14]Turning to the respondents' own position, counsel drew my attention to the note of a telephone call on 11 June 2003 (Production 7/4), in which they were advised that the licence had been revoked on account of the company being in liquidation, and in which it was suggested that any further sub-contracting by the petitioner (to whom all relevant routes were registered) would have to be to a licensed operator. The respondents then made repeated efforts to ascertain the attitude of the liquidator of the company, and of the Traffic Commissioner, to the fact that the licence had been revoked on 10 June 2003 while the appeal against the previous revocation was still pending before the court. They also sought to ascertain the Traffic Commissioner's attitude to the claim by Mrs Patricia Coakley to be the true licensee. On 23 April 2004 (Production 7/11), in the face of contrary representations from the respondents' solicitor, a member of the Traffic Commissioner's staff firmly maintained her impression that "Coakley Bus Co Ltd" was in fact "Mrs Coakley", and stated that on payment of the appropriate fee the licence in question would be renewed. On 26 April 2004 (Production 7/13) another official in the Traffic Commissioner's office advised that, in their view, they had no option but to allow Patricia Coakley to trade in terms of licence PM2422 "... due to the action which she had raised at Court of Session". On 29 April 2004 (Production 7/16), the respondents' solicitor complained about the lack of any satisfactory response to his requests for information as to whether or not any licence had been issued in favour of Mrs Coakley as an individual.

[15]From and after 15 June 2004, however, it was acknowledged that matters had been regularised by the grant of a fresh licence (Production 6/13) in favour of "Coakley Bus and Coach Ltd", to which the original applicants YBF Leisure Ltd had recently changed their name. On 22 June 2004, on fax paper headed "William Nelson T/A Coakley Bus and Coach Co" (Production 6/8), the petitioner notified the respondents that the company was now operating the routes in question, and expressed the hope that payment of all monies due would now be made in full.

[16]Against that factual background, counsel's submissions on the two major issues identified at paragraph [11] above were clear and succinct. On the first issue, there was plainly no valid operator's licence in force during the periods in question. As confirmed by the renewal document of 8 May 2000 (Production 7/1), licence PM 2422 was issued in favour of the Coakley Bus Company Ltd. It was not assignable, and would terminate on bankruptcy. On 7 February 2003, therefore, that licence did terminate on the making of the winding up order in respect of the company. Despite attempts to maintain that Mrs Coakley was thereafter the recipient of a new licence, Production 6/15 in fact bore to be the annual renewal of licence PM2422 which had been held by the company since May 1997. Had this been a new licence, as maintained on the petitioner's behalf, it would have had a different licence number; the fee for a new licence would have been different from the renewal fee levied; and the grant of a new licence would also have been preceded by recorded applications and enquiries. None of these things had happened. There was accordingly no new licence, and no licence in favour of Patricia Coakley as an individual. Since the company was in liquidation, it was regrettable that this supposed licence was ever issued. It might be said to have been issued in error or under a misapprehension of law. However regulation 23 of the 1995 Regulations was clear and unambiguous: the company's liquidation terminated the licence, and no valid licence could thenceforth be held in the name of the company. In these circumstances, without proof of a valid operator's licence having been in force during the relevant periods, the present claim was bound to fail, and the respondents' position as expressed in their letter of 12 January 2004 could not be criticised.

[17]On the second major issue, namely whether, notwithstanding the absence of a valid licence, the petitioner was entitled to payment of the outstanding rebates, counsel argued forcefully that as an authority responsible for the distribution of public money his clients could not simply ignore evidence of illegal operations, nor were they in a position to ignore "the law". Since the legal position under regulation 23 of the 1995 Regulations could not be disputed, the conduct, attitude and understanding of the Traffic Commissioner, and of other relevant authorities, was of no consequence. If services did not meet the requirements of the Scheme, in respect that they were not covered by any valid operator's licence, no compensatory rebates could lawfully be paid out. Indeed, any such payments would be ultra vires and open to challenge where the respondents knew that the former licence holder was in liquidation, and that the Deputy Transport Commissioner had formally revoked the relevant licence on that ground. In carrying on regardless after 10 June 2003, the petitioner and the Coakleys were the authors of their own misfortune, and the present petition was misconceived.

[18]Dealing with the petitioner's subsidiary arguments regarding irrational and inconsistent conduct, the "Blind Scheme" payment of £4,563.42 must be taken to have been paid in error by a different department in ignorance of the wider position. It was therefore of no materiality in the present context. Furthermore, although the respondents had had no opportunity to investigate the matter fully (and would require such an opportunity if the point was treated as significant), it could be said with certainty that they had never knowingly made payments under the Scheme to any unlicensed operator.

[19]Finally, counsel submitted that the respondents' plea of mora should be upheld as regards the entire petition or, at least, the petitioner's late adjustments on irrational and inconsistent conduct at page 12 of the Record. This dispute had arisen in or about July 2003; the respondents' final position had been focused in their letter of 12 January 2004; and even though the respondents conceded that they had suffered no identifiable prejudice (since funds to meet the claim, if upheld, had been set aside), there could be no valid explanation or excuse for the present application for judicial review having been delayed until mid-2005.


[20]While at first sight the respondents' submissions may appear to have a certain logical attraction, I have come to the view that they are ultimately unsound, and that in refusing full payment of the outstanding rebates the respondents have acted unlawfully and in excess of their proper jurisdiction. It cannot, I think, be disputed that the statutory provisions governing the Scheme do not confer on the respondents any jurisdictional competence vis-à-vis the grant, variation or termination of PSV operators' licences. These functions are vested in the Traffic Commissioner under the 1981 Act in particular, and relevant ancillary functions are vested by statute in the police and in the Secretary of State's Vehicle Inspectorate. Necessary implementation and enforcement measures may also be secured by way of court order. No doubt the respondents would be entitled, and indeed bound, to take cognisance of relevant steps taken by such other authorities in the exercise of their proper functions. However, I do not consider that it is open to the respondents unilaterally to enter into contentious issues, or to make their own assessment of situations, falling outwith their own jurisdictional competence and within the jurisdictional competence of others.

[21]In particular, it seems to me that so long as there is in existence an ex facie valid operator's licence granted by the Traffic Commissioner, and covering the relevant operation of local bus services with consequent provision of concessionary travel, the respondents cannot lawfully go behind the ex facie validity of that licence in connection with the discharge of their responsibilities under the Scheme. They may believe that such a licence should not have been granted, or that the operator in question fails to meet one or more of the primary requirements of good repute, appropriate financial standing and professional competence, but while the relevant licence remains extant, and has not been effectually struck down under recognised procedures, I consider that the respondents have no option but to respect that state of affairs and implement the Scheme accordingly.

[22]If this were not so, it could in my view lead to wholly unacceptable consequences. Operators holding an ex facie valid licence from the competent authority would thereby be obliged to provide relevant bus services, and in that connection to offer concessionary travel pursuant to the Scheme, without having any secure entitlement to receive appropriate rebates from the respondents at a later date. Moreover, in reaching any view conflicting with that of the competent licensing authority, the respondents would enjoy none of the investigatory powers vested in that authority, nor would they be subject to any of the applicable statutory constraints and procedures, nor indeed would the licence holder have any statutory right to be heard before any decision adverse to his interests was taken. The respondents would thus run a real risk of proceeding on the basis of inadequate or incomplete information. In addition, there would be no obvious means of resolving such a conflict of views, especially in relation to a period already past, and during which concessions of substantial value had, to the grave prejudice of the operator, been provided on the strength of a licence issued by the competent authority upon payment of the appropriate fee.

[23]In the circumstances of this case, the relevant operations appear to have been referable to the issue of an ex facie valid licence by the Traffic Commissioner on 29 April 2003. Throughout the quarterly periods to which the present petition relates, (and here I note in passing that the respondents' counsel did not seek to take any point concerning the interval between purported revocation of the licence on 10 June 2003 and any subsequent appeal), these operations continued without effective practical hindrance from the Traffic Commissioner, the police, the Vehicle Inspectorate or the court. In that connection, concessionary travel to the value of more than £400,000 was provided for the benefit of eligible passengers on the specified routes, and in my opinion it would prima facie be surprising if compensatory rebates under the Scheme could nevertheless be withheld by the respondents on the basis of their own retrospective assessment of the true validity of the licence in question.

[24]Despite the apparent agreement of counsel on this point, I am not wholly convinced that, on a proper construction of regulation 23 of the 1995 Regulations, the making of a winding up order automatically terminates a licence originally issued in favour of a solvent corporate operator. It is true that regulation 23 identifies the making of a winding up order as an event on which the relevant licence "... is to terminate", and I acknowledge that this may be sufficient to curtail the duration of the licence under section 15(2) of the Public Passenger Vehicles Act 1981. On the other hand, it is in my view at least arguable that the wording of the regulation envisages, not automatic and instant termination, but termination in due course at the hand of the competent authority. Section 17 of the 1981 Act, without qualification, entrusts the termination of licences to the Traffic Commissioner, subject inter alia to the presumption of appropriate financial standing which applies under paragraph 9 of schedule 3. Significantly, the notes appended to the various licences produced in this case contain no reference to the making of a winding up order as a potentially terminating event, nor do they mention any statutory termination other than by virtue of the 1981 Act. In these circumstances, it strikes me that regulation 23 may simply be intended to ensure that, on the making of a relevant winding up order, the mandatory revocation provisions contained in section 17(1) of the 1981 Act apply at the stage when matters are considered by the Traffic Commissioner.

[25]Even if that is incorrect, however, (and I am conscious that the point was not argued before me at the hearing), it does not in my view necessarily follow that the Traffic Commissioner may not, as a matter of discretion, issue a licence in favour of an applicant in liquidation if, on investigation, the requirement of appropriate financial standing is nevertheless satisfactorily met. A liquidator may, for example, elect to carry on trading with a view to disposing of a business as a going concern; depending on the grounds of liquidation, a company may de facto retain ample funds to enable trading to continue; or financial backing may become available, or some other material change of circumstances may occur, subsequent to a winding up order being made. Given the breadth of the discretion conferred by section 14 of the 1981 Act, read along with the straightforward commercial enquiry envisaged in paragraph 2 of schedule 3, these would appear to be matters for the assessment of the Traffic Commissioner in deciding whether a licence should or should not be issued, and by contrast matters which the respondents would have no jurisdictional competence to assess within the limited scope of their functions under the Scheme. I therefore find myself unable to accept the submission of counsel for the respondents that regulation 23 of the 1995 Regulations constitutes an insuperable obstacle, not only to the continuation in force of the original licence held by the Coakley Bus Company Ltd, but also to the issue of any licence in that company's favour.

[26]Another potential source of difficulty facing the respondents is in my view the chance of administrative error and confusion in the granting or renewal of licences. It is not impossible that a licence may per incuriam be issued under an operator's trading style as opposed to his true personal or corporate name. The name in which a licence is issued may simply be wrong in some detail - for example through omission of a christian name, misspelling of a surname or the erroneous presence or absence of the word "Limited" in the name of a business. Such an error would not, I think, invalidate the relevant licence in a question with the competent authority, especially where subsequently acted on without effective hindrance, but it might convey an entirely false impression to any different body such as the respondents seeking to form an independent view on regularity and validity. In this case, for example, the original licence was admittedly issued and renewed in favour of the Coakley Bus Company Ltd, in whose name the renewal notice of 12 March 2004 (Production 6/14) also bore to be sent out. However, Productions 6/7, 6/8, 6/9, 6/10 and 7/14 contain references, variously, to "Coakley Bus and Coach Co", "Coakley Bus and Coach Co Ltd", "Coakley Bus and Coach" and "Coakley Bus Co". Production 6/11 confirms that a partial payment of rebate for the quarter to 30 June 2004 was made in favour of "Coakley Bus and Coach Co". The respondents' Blind Scheme remittance advice of 2 February 2005 (Production 6/12) was addressed to "Wm Nelson T/A Coakley Bus and" (sic). In 2004, moreover, it would appear that an entirely different corporate entity, YBF Leisure Ltd, changed its name to "Coakley Bus and Coach Ltd", and following the grant of a licence to that entity on 15 June 2004 it seems that all difficulties regarding the operation of the Scheme have been resolved.

[27]Against that background, how were the respondents to judge the true status of the licence granted on 29 April 2003? How were they to know whether the name of the holder was correctly stated on the face of the licence? How could they exclude the possibility that (in light of the liquidation of the company) the licence had truly been granted in favour of some other individual or entity trading under a similar style? How could they know what view the Traffic Commissioner had taken as to the appropriate financial standing of the licence holder? After all, the purported revocation of that licence by the Deputy Traffic Commissioner on 10 June 2003 implied an acceptance that there was something valid and extant to be revoked, although according to counsel for the petitioner the revocation apparently referred to some licence originally issued in 1996. More significantly, perhaps, the public inquiry which took place on 10 June 2003 was held on the application, not of the company or of its liquidator, but of Edward Coakley and Mrs Patricia Coakley, in circumstances where Section 17(4) of the 1981 Act provides for a traffic commissioner to hold such a public inquiry "... if the holder of the licence requests him to do so". If neither Edward nor Patricia Coakley was the licence holder, it is hard to see why that public inquiry was held at all. And just to complicate matters further, the pending appeal and the formal suspension ad interim pronounced by the court have had the effect of suspending, not only the purported revocation of the licence, but also the rejection of Mrs Patricia Coakley's claim to be the true licensee.

[28]In the foregoing circumstances, I have reached the conclusion that the respondents had no statutory warrant, within the limited scope of their responsibilities under the Scheme, for refusing or withholding payment of quarterly rebates on the basis of their own assessment of the validity of licences. Even if I were wrong about that, and the respondents were legitimately entitled to enter into contentious questions as to the validity of licences, or as to the legality of past operations conducted without effective hindrance from the Traffic Commissioner, the police, the Vehicle Inspectorate or the court, I would still hold that in the particular circumstances of this case they had no proper basis for the actings which are now the subject of review. The information on which the respondents proceeded was in my view quite inadequate for the purpose, as evidenced by their continued (and unsuccessful) efforts throughout the disputed quarterly periods to obtain a clear and unambiguous statement of the Traffic Commissioner's position. Indeed, they continued to withhold the disputed rebates in circumstances where, as appears from productions 7/11 and 7/13, the position adopted by members of the Traffic Commissioner's staff in early 2004 was that the licence holder was truly Mrs Patricia Coakley, that the licence would be renewed in her favour upon payment of the appropriate fee, and that there was no option but to allow her to continue trading pending resolution of her appeal to the Court of Session. On the whole matter, I consider that it can properly be said either that in refusing the disputed payments the respondents acted on the basis of irrelevant material, or that in reaching their decision they left relevant and significant material out of account, or that they misdirected themselves as to the correct legal and factual position, or that what they did was fundamentally flawed in a combination of these ways.

[29]In reaching the foregoing conclusion, I am further fortified by the consideration that the respondents' position would have been patently untenable if they, and not the Traffic Commissioner, had also been the competent licensing authority responsible for the issue of the licence of 29 April 2003. In that situation, I do not see how the respondents could have had any legitimate answer to the petitioner's claim for compensatory rebates in respect of operations and travel concessions provided on the strength of an ex facie valid licence which (rightly or wrongly) they themselves had granted. In my opinion, the respondents can be in no better position merely because the licence was in fact issued by the Traffic Commissioner, thus enabling any error in that regard to be laid at the Traffic Commissioner's door. Either way, as it seems to me, a licence must be presumed regular and valid until effectually struck down, with the result that relevant operations during the period of its presumed regularity and validity must necessarily afford the operator a legitimate expectation and entitlement to receive payment of appropriate rebates in terms of the Scheme.

[30]Turning now to the respondents' plea of mora, I am not persuaded that it would be right to dismiss the petition on that ground. As counsel for the petitioner pointed out, no statutory time limit for the submission of claims has been exceeded. Efforts to secure an amicable settlement were made over a considerable period, and as late as April 2004 the respondents themselves were still trying to ascertain the position of the Traffic Commissioner on the disputed issues. Since then, a new licence has been granted to regularise the situation, and certain payments have in fact been made to the petitioner. Moreover, the disputed issues essentially affect no-one but the petitioner and the respondents, and it is not suggested that the decisions complained of have been acted on by any third parties. The respondents very fairly concede that they themselves have suffered no real prejudice. In these circumstances, I do not think that the petitioner can reasonably be criticised for the approach which he and his advisers have taken, especially when it is borne in mind that the prescriptive period for any financial claim still has several years to run and that, if this petition were to be dismissed on technical grounds, it would still be open to the petitioner to seek the necessary declarator in an ordinary action.

[31]In view of the decision which I have reached on the principal issue, it is unnecessary for me to deal in detail with the subsidiary arguments which were presented. Suffice it to say (i) that I would not have regarded the making of the Blind Scheme payment as sufficient by itself to demonstrate irrationality on the part of the respondents, and (ii) that if I had required to give serious consideration to the petitioner's newly-averred complaint of unfair discrimination at page 12 of the Record, I would have been inclined to appoint a second hearing to be held for that purpose.


[32]For all of the foregoing reasons, I consider that the petitioner's application for judicial review in this case is well-founded and must be upheld. In that connection, the respondents' third plea-in-law will be repelled as mentioned in paragraph [1] above. Their first plea-in-law (mora) will also be repelled on the basis set out in paragraph [30]. Quoad ultra I shall simply make the declaratory finding which the petitioner seeks in article 2(i) of the petition.