Hall Bros Transport Ltd, Peter Hall (Transport - Traffic Commissioner and DoE (NI) Appeals - Disqualification) [2019] UKUT 95 (AAC) (20 March 2019)

REASONS FOR DECISION

Introduction

1. This is an appeal to the Upper Tribunal brought by Hall Brothers Transport Limited (“the Operator”) and Peter Hall, who is its sole director, from a decision of a Deputy Traffic Commissioner (“DTC”) made on 6 December 2018 following a Public Inquiry (“PI”) held on 3 December 2018. The DTC revoked the standard national licence held by the Operator and disqualified Peter Hall from holding an operator’s licence or from being a director of a company that does, for a period of two years.

The background

2. The Operator was granted its licence on 15 February 2012 the terms of which authorised it to operate two vehicles and one trailer. In January 2017, the Office of the Traffic Commissioner (“OTC”) wrote to it requesting certain financial information. That led to an exchange of communications which did not reassure the OTC that the Operator had appropriate financial standing. Whilst that matter was being looked into the OTC received a letter from one Alan James Firkins (“TM1”) who was recorded on the licence as having been its transport manager since September 2015. However, he indicated in his letter that he had only held that post for a period of approximately six weeks and that he had then left the post having informed the Operator of his intention to do so. He explained that he had been told that the Operator would tell the OTC of this development so that his name would be removed from the licence and that, until recently, he had simply assumed that it had been.

3. The OTC, in light of the above, was concerned because the information now before it as supplied by TM1 suggested the Operator might have been carrying on business without a transport manager at all since a date in 2015. So, the OTC wrote to the Operator and the Operator responded by applying, on 29 September 2017 to have one Dean Jason Cartwright (“TM2”) added to the licence as transport manager. It followed that up with an email asserting “Alan Firkins was our Transport Manager for the time until Dean Cartwright was nominated”. So, there was a clear conflict between TM1’s assertion he had ceased to be the transport manager towards the latter end of 2015 and the Operator’s implied contention that he had been so employed until September 2017. To state the obvious, that is quite a difference.

4. As a result of the above concerns it was decided to call the Operator to a PI. In its “call up” letter of 9 October 2018 the OTC indicated its specific concerns, at that stage, revolved around financial standing, and the transport manager issue. TM1 was also called to the PI.

Relevant legislative provisions in brief

5. Under section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”) a person shall not use a goods vehicle on a road for the carriage of goods for hire, reward, or in connection with any trade or business carried on by him/her, unless that person possesses an operator’s licence. Section 13A sets out some requirements which an operator must meet not only when a licence is sought but throughout its currency. Included are requirements that such an operator is of good repute; has appropriate financial standing; and is professionally competent (see section 13A(2) (b), (c) and (d). As to professional competence, Schedule 3 to the 1995 Act links a company’s professional competence to that of its transport manager “a company satisfies the requirement as to professional competence if, and so long as it has a transport manager…who…is of good repute and professionally competent”. Section 27 states that a Traffic Commissioner shall direct that a standard licence be revoked if at any time it appears to him/her that the licence holder no longer satisfies the requirements of section 13A(2). Section 28 confers a power on the Traffic Commissioner to order that the holder of a licence revoked under section 27 be disqualified either indefinitely or for such period as the Traffic Commissioner sees fit, from holding or obtaining a licence.

The Public Inquiry and the Deputy Traffic Commissioner’s decision

6. The PI was originally convened on 1 November 2018. The Operator’s sole director Peter Hall was in attendance and he and the Operator were represented (by the same representative). However, neither TM1 nor TM2 were in attendance and understandably, that was regarded by the DTC as being unsatisfactory. So, the PI was adjourned and reconvened on 3 December 2018. On that occasion Peter Hall, his brother (as a witness), and TM1 were in attendance. Peter Hall and the Operator were once again represented. TM2 did not attend and the DTC was informed that he had decided he no longer wished to be nominated as the Operator’s transport manager. No alternative candidate was put forward.

7. One of the key issues for the DTC was the conflict in the evidence as to when TM1 had ceased to be the Operator’s transport manager. As to that, the DTC had the benefit of hearing oral evidence from TM1 and from Peter Hall and Robert Hall. Having heard that evidence he resolved the conflict in a way which was unhelpful to the Operator because, essentially, he accepted that TM1 had left the Operator’s employ at the time he said he had. He explained his reasoning as to that at paragraph 11 of his decision of 6 December 2018. Put simply, he concluded as he did because TM1 had been able to produce bank statements showing payments being made to his bank account in relation to his employment from May 2015 but not after 2015, and because he found the Operator’s contention that TM1 had been working without remuneration for a period of over two years prior to the nomination of TM2 to be implausible. The DTC observed “It is fanciful to suggest that a professional transport manager would undertake those duties at the premises of a former employer for over two years without any remuneration, meetings or discussions with the operator. The proof of payments made to Mr Firkin in 2015 adds weight to his version of events. The evidence given by Peter Hall and his brother is not credible”.

8. The DTC, having made the above finding, took the view that the consequences for the Operator, and indeed for Peter Hall, were serious. That is because, as he explained at paragraph 12 of his decision, it followed that not only had there been a period of some 27 months when the Operator had been conducting its business without a transport manager but it also followed that Peter Hall had been lying to him. That caused the DTC to decide he was dealing with an Operator that could not be trusted such that it ought not to be permitted to continue in business and, indeed, deserved to be put out of business. The DTC concluded the Operator had lost its good repute, was no longer professionally competent due to the lack of a transport manager and did not, on the evidence, have appropriate financial standing, though it is fair to say the DTC attached much more weight to the first two concerns than to the third one.

9. In light of the above findings, the DTC decided to revoke the operator’s licence. He then turned to the question of the possible disqualification of Peter Hall. He expressed the view, based on the above findings, that disqualification would be “appropriate and proportionate” and disqualified him for a period of two years. He pointed out that he was unable to disqualify Robert Hall who, of course, had not been a director, but said he would place a note about him on the record so that any application for a licence he might make would be referred to a TC.

The appellant’s grounds of appeal to the Upper Tribunal

10. An appeal to the Upper Tribunal followed. It was asserted in the written grounds of appeal, in summary, that the decision to revoke and the decision to disqualify had been “harsh”. The grounds seem to argue that the DTC had been wrong to accept the evidence of TM1. The Operator and Peter Hall had been guilty of naivety but nothing more culpable than that. A lesser punishment would have been more appropriate.

The appellant’s non- attendance before us

11. Though the appeal was listed for an oral hearing the appellant did not attend and was not represented. That was no surprise because in answering a standard questionnaire asking about his intentions which he had sent to the Upper Tribunal shortly prior to the hearing date he had said he would not attend and would not be represented. He did not explain why not and he did not indicate he would like the appeal to be relisted on a different date. That meant, in fact, that the only attendees at the hearing were the Upper Tribunal panel members and our clerk.

Why we have decided to dismiss this appeal

12. Paragraph 17(1) of Schedule 4 to the Transport Act 1985 provides:

“The Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport”.

13. The Upper Tribunal’s jurisdiction was examined by the Court of Appeal in Bradley Fold Travel Ltd. and Anor v Secretary of State for Transport [2010] EWCA Civ 695. The court applied Subesh and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, where Woolf LJ held:

“44….The first instance decision is taken to be correct until the contrary is shown…An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one…The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category”.

14. Part of the rationale for the above is that the material before what is now the Upper Tribunal will consist only of the documents placed before a Traffic Commissioner and the transcript of the evidence. The Upper Tribunal will not have the advantage of hearing the parties and any witness giving evidence so as to enable it to assess credibility both from the words spoken and also the manner in which the evidence was given.

15. Given the appellants non-attendance, we considered whether we ought to adjourn the proceedings. However, no application for a postponement or an adjournment had been made. Neither the Operator nor Peter Hall had indicated any wish to further actively participate in the proceedings, the written grounds of appeal having been provided. We had no reason to think if we did adjourn that the position regarding attendance or representation would be any different at any reconvened hearing.

16. The DTC had found, as noted above, that the operator had continued to remain in business without a transport manager for a period of 27 months. It had not notified the OTC that TM1 had left its employ in 2015. As we say, the grounds seem to challenge the correctness of the DTC’s finding as to that. However, the DTC gave cogent reasons for concluding that TM1 had left towards the latter end of 2015. The alternative was to simply believe that he had worked without payment for in excess of two years and it is readily understandable absent something exceptional (and nothing exceptional had been offered by way of explanation) that the DTC decided that TM1, as a professional transport manager, would not have done that. So, on the DTC’s findings which we conclude are sound and certainly not plainly wrong, the operator had chosen to carry on without a transport manager and, therefore, without professional competence knowingly for a lengthy period.

17. The DTC found that Peter Hall and indeed his brother had sought to dishonestly mislead him. We are unable to conclude that that finding was plainly wrong or anything approaching it. It followed logically from the finding that TM1 had left the operator’s employ in 2015. The operator and Peter Hall must have known there was no transport manager in place after 2015. That sounds like a statement of the very obvious indeed but we think it worth making.

18. Neither the operator nor Peter Hall personally have said or done anything to demonstrate, in this appeal to the Upper Tribunal and against the background of the above findings, that the DTC was wrong in deciding that the operator could not be trusted in the context of compliance with the terms of the licensing regime. It has been said that the decision to revoke and the decision to disqualify was too harsh (we suppose a lawyer might say disproportionate) but against a background of knowing non-compliance and dishonesty at the PI we simply cannot agree. As to the disqualification of Peter Hall, the DTC approached matters correctly. He did not disqualify as a form of reflex action simply because the licence had been revoked. He did not say a great deal about the decision to disqualify but, of course, the conduct which had led to revocation was really the conduct of Peter Hall as the sole director so that conduct was directly relevant to disqualification too. We cannot see that the DTC, having made the findings he did, was plainly wrong to disqualify nor that his selection of the period of disqualification was plainly wrong either. There is no misdirection or misapplication of the law and no procedural unfairness. There is nothing in the material before us nor in any argument put to us which impels us to reach a different conclusion.

Conclusion

19. This appeal to the Upper Tribunal is dismissed.

M R Hemingway

Judge of the Upper Tribunal

20 March 2019

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Upper Tribunal (Administrative Appeals Chamber)