New rules for operators appearing at public inquiries (PIs) in light of Covid-19 could jeopardise fair hearings and may result in a rise in the number of appeals, according to solicitors.
The senior traffic commissioner (TC) has produced a guidance document explaining the rules around attendance and preparation for anyone appearing at a PI as lockdown restrictions are eased.
Mark Davies, a director at transport lawyers Backhouse Jones, said it includes a request that evidence and paperwork is lodged with the TC at least seven days before a hearing; the inclusion of limits on the number of people who can attend PIs; and a ban on the use of consultation rooms prior to a hearing for meetings between solicitor and clients.
In a recent webinar, Davies said: “If you’re having to produce documents a week in advance that can significantly reduce the amount of time you have to prepare.
“The other issue is the scale of what they want you to produce. The standard position is that they want six months of maintenance records for your full fleet.
“It’s a huge undertaking.”
Davies said there was also lack of clarity over the number of people allowed into a PI.
He said Backhouse Jones was aware that in Leeds it was limited to five, but it was not clear whether this included the TC and the clerk as well: “What about the solicitor? Then you’re down to two from the company.”
He added that he was sure the TCs would listen to the concerns but that there remained issues needing to be addressed.
“For me, one of the biggest issues with the guidance notes is that there’s no capacity in any traffic area office to allow you in an hour before the start with a client in a consultation room,” he said.
“It’s really, really important that we can. We have made a point about this to the TCs and we are hoping they will respond to us.
“I can see this being a major problem.”
Jonathan Backhouse, another director at the law firm, questioned whether the lack of consultation with clients before a PI would result in a fair hearing:
“That is our concern,” Davies said. “I can see appeals in the coming months.”
An office of the TC (OTC) spokesman said the response to the way it had implemented protection for tribunal users was “overwhelmingly positive”. The spokesman said: "It recognises the hard work of OTC staff to complete risk assessments for each of the tribunal facilities and to implement social distancing and other measures.
“The health and safety of attendees, OTC staff and commissioners remains a priority, so we have also taken steps to find new ways of working flexibly, whilst retaining fairness. Anyone called to a public inquiry receives prior notice, weeks in advance of the hearing. This is to allow parties to prepare thoroughly before their arrival at the hearing.
“OTC continues to ensure that parties are provided with copies of the evidence and to receive documents in a way which seeks to protect the health and safety of all concerned."
The spokesman said TCs always asked for documentation to be sent to them well before a hearing and he added: “What we have seen in the first fortnight of hearings is not only a willingness by most lawyers to comply with the timetable, but in many cases them sending timely written representations, which assists the tribunal and thereby benefits their clients. We encourage that kind of early engagement and consider the resumption of physical hearings to have been a success.”
