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Aviation History
1961
1961 - 1462.PDF
566 FLIGHT, 5 October 1961 Seen here is one of the Herons operated by Itavia, which has now sold four of its fleet of six of this type, and which recently ordered Handley Page Heralds. A new Italian Heron operator is Avio Linee Siciliani, which has three. Itavia has just acquired two DC-3s as interim equipment AIR COMMERCE... THE BIG APPEAL NO setting more remote from the bustle and hum of air trans-port can be imagined than the Council chamber in HolbornTown Hall, where last week Sir Fred Pritchard heard BOAC's appeal against the award of Cunard Eagle's North Atlan-tic licence. At least, one feels, the Therese House court room of the Air Transport Licensing Board is modern and businesslike; insideit one at least gets the feeling that the proceedings are in touch with air transport. Less so at this appeal, which was the occasion for the proof-testof an appeals-machinery structure thought by many people to be improperly designed for the job. This thought was curiouslynurtured by the sheer magnificent irrelevance of the setting itself, with its worshipful atmosphere, memorial battle flags, richlyornate dome, stained glass windows, and oak-panelling inscribed with the names of every mayor of Holborn since 1900. No more esteemed or learned judge could have been selected bythe Minister for this job than Sir Fred Pritchard. Seated in solitary elevated dignity, listening attentively to all that was said, he is theepitome of all that is best about the men who profess that most excellent thing, English law. But is it fair to impose upon him,or upon any single human being, the requirement—which the argu- ments and advocacy of the parties concerned inevitably demand—to be wiser and more expert in air transport than the Board upon whose decision he sits in judgment ? In a preliminary discussion about the scope of the appeal, the advocates of each party each hit a nail squarely on the head. Mr Gerald Gardiner, QC, who obviously so impressed Cunard Eagle with his recent performance on behalf of British United that they briefed him for this big job, submitted that the appeal com- missioner's "ultimate decision is one of discretion." The Board has a discretion, he suggested, and "so should you." The Board was, he said, a quasi-judicial court not bound by the rules and evidence of a law court, and therefore its decisions were not strictly confined to the wording of the Act. These principles, he suggested, "should beapplied to this appeal." The nail hit on the head by Mr Henry Fisher, QC (for BOAC),was that the Board, "whether you call it judicial or quasi-judicial, is bound by the laws of natural justice." Having made these points in a leading article on September 7, wemay be biased in having thus selected them from the context of a lengthy, complicated and dull appeal. It was, at times, over-poweringly dull. Was it really necessary for Mr Fisher to read such extensive passages from the Regulations, and from the transcriptsof the Board's hearing? Or to read passages from his submission at dictation speed? Sir Frederick knows the Regulations; he said hehad read the transcripts; and typed copies of BO AC's submission could have been handed to him. At any rate, the two main grounds of BOAC's appeal were con-cisely stated. First, since the hearing before the Board, North Atlantic air traffic had unexpectedly declined to a degree whichinvalidated the Board's decision. Second, the Board's decision was very strange, and "almost perverse," inasmuch as it was reached"on the basis of something which formed no part of the applicant's case whatsoever." The Cunard Eagle case was that there wouldbe no material diversion; however, the Board said that there would be diversion, and probably material diversion. Despite that itgranted the licence—this was a decision thsft "cannot be supported." Mr Gardiner maintained that events that take place after ahearing are not admissible as new evidence in an appeal. There was some argument on this interesting point; Mr Fisher said therewas nothing in the regulations to say that only evidence prior to the hearing can be called at an appeal; "indeed, one would have expectedthat such evidence would have been excluded." It would be absurd if the Minister "shut his eyes to subsequent events." The commis-sioner settled this dispute with delphic aplomb: he would, he said, admit the new evidence; but if he was influenced by it he would notethat Cunard Eagle considered it inadmissible. * Of such importance was this appeal that it is appropriate to summa-rize the proceedings fairly fully. The commissioner stated that the appeal had been entered as provided in Regulation 14. and said that hehad been instructed by the Minister that it was not to be a re-hearing of the application. He therefore asked the two Counsel to say whetherthey thought that the enquiry should have a wider scope. Mr Fisher suggested that the hearing should be confined to thegrounds stated in the notice of appeal. The various sections of Regula- tion 14 provided for the production of new evidence (BOAC and CunardEagle had both indicated their intention of doing so), and for the com- missioner to have a copy of the transcript of the original hearing. Theyalso defined the responsibilities of the commissioner in deciding his findings and giving reasons for them, and laid down that the Minister,having considered the report of the commissioner, had power to order the Board to rehear all or part of the case. The commissioner could saywhether the Board had decided rightly on the evidence before it. But either party had the right to introduce new evidence and the commis-sioner was not, therefore, restricted to the evidence placed before the ATLB. Mr Fisher therefore submitted that the commissioner's findingsshould be based on: (1) The transcript of the hearing before the ATLB; and (2) Fresh evidence put before him. Thus the commissioner's find-ings would be on evidence different from that heard by the Board. Mr Gardiner submitted for Cunard Eagle that: (1) The onus was onthe appellants to satisfy the Minister that the decision from which they appealed had been wrong; (2) That it was not for the Minister (advisedby the commissioner) to decide on questions of fact since the evidence of the witnesses had been heard, and their credibility assessed, by theBoard, not at the present hearing; (3) The decision of the Board had been an exercise of discretion bearing in mind particularly the provisionsof Section 2(2) of the Act of 1960 and the Board's general duty to further the development of British civil aviation; (4) The Board, as a quasi-judicial tribunal, was not bound by the normal rules of evidence and procedure; (5) the proposed new evidence of the appellant was notadmissible as it concerned matters which had taken place since the hearing before the Board. Mr Fisher accepted that the appeal must fail if BOAC failed to presentany case—to that extent he agreed that the onus of proof was on them. Nor should the appellant court depart from a finding of the other court based on credibility of witnesses. However, the evidence had concernedfacts and figures and expert opinions based on them: he submitted that the questions of fact were subject to review in the light of subsequentevents. He felt that Mr Gardiner's third point suggested that the Board's decision had a certain sanctity and should not be disturbed even thoughthe Minister might think it wrong. But the Minister, if appealed to, un- der the provisions of the Act, had to make such decision as he thoughtfit after considering the report of the commissioner. He must, therefore, give full consideration to the application in the light of all the evidenceplaced before the ATLB and the appeal commissioner. Although evidence before the ATLB was not given on oath, said MrFisher, the Board was bound, like any other quasi-judicial tribunal, by the "rules of national justice" and must base its decision on the evidenceplaced before it. Mr Gardiner's fifth point, said Mr Fisher, was prob- ably of the greatest importance. It was BOAC's submission that matterswhich had occurred since the May hearing of the application were of the utmost relevance to the decision to be made by the Minister. If theMinister was to decide rightly, he must hear evidence of matters up to the date of the lodging of the appeal. His duty was not only to saywhether the Board had decided rightly on the evidence they had heard, but to give such a decision as he thought fit on the application. BOAC'snew evidence would bear out that since May the expectations they and other operators had held of traffic increases on the North Atlantic hadbeen completely falsified. Whereas an increase of 17 per cent over 1960 had been expected, traffic was down by 11 per cent. Mr Fisher sub-mitted that it was absurd to suggest that such a material factor should be excluded. Proceeding with his case, Mr Fisher outlined the history of applica-tion A.1000 which had been submitted on December 6, 1960. objected to by BOAC on February, 7, 1961, and heard between May 16 and 30,1961. The Board's decision, granting a limited licence for fifteen years on the route between the UK and the eastern seaboard of the USAhad been published in Licensing Notice No 29 on June 28, 1961. Mr Fisher proposed to refer frequently to the transcript of the hearingbefore the ATLB, and asked whether the commissioner had a copy of this. Sir Fred confirmed that he had a copy and had read it, but ob-served that Mr Fisher would be rash to assume that he had understood everything he had read. Mr Fisher said BOAC had served notice of appeal on July 14, 1961
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