Neutral Citation Number: [2009] UKUT 267 (AAC)

Appeal No.  2009/502

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

Joan Aitken TRAFFIC COMMISSIONER for the

SCOTTISH TRAFFIC AREA Dated 1 August 2009

Before:

Judge Frances Burton

Leslie Milliken

Stuart James

Appellant:                     INNES TRANPORT LIMITED

Attendances:

For the Appellant:  John McLaughlin, Solicitor, Culley & McAlpine, Solicitors

Heard at:                       Eagle Building, Glasgow

Date of hearing:           27 October 2009

Date of decision:         27 November 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and remitted for

   rehearing by a different Traffic Commissioner or Deputy.

REASONS FOR DECISION

1.           This was an appeal against the Decision of the Traffic Commissioner for the Scottish Traffic Area dated 1 August 2009 when she refused the Appellant company’s application for a standard national goods vehicle operator’s licence seeking authority for 8 vehicles and 10 trailers on the grounds of lack of repute.

2.           The factual background appears from the documents, the transcript of the public inquiry and the written decision of the Traffic Commissioner and is as follows.

(i)               The application was made on behalf of the Appellant company by James William Innes, born 1981, and George Grigor Innes, born 1989.  The business was to be in general haulage. Mr J G Innes had given consent for the use of an operating centre with 30parking places.  The nominated Transport Manager was Annette I Stuart, to be working 22 hours per week, and maintenance was to be by the company’s employee, Derek Watt.  An interim licence was requested, as there was said to be immediate work which might otherwise become a lost opportunity and there was financial standing demonstrated in a sum slightly over that required.  The application was called to public inquiry as Mr J G Innes had had a licence (in the name of J C Innes and Sons) revoked and the connection was apparent.

(ii)              The public inquiry was held in Edinburgh on 15 June 2009. Mr J W and Mr G G Innes were present with Ms Annette Stuart, and were represented by a friend, Mr Andrew Walker. This concerned the Traffic Commissioner as Mr Walker had had an operator licence revoked (for an entity called Trux+ Limited).  She was concerned as (a) he had created “a less than positive impression in her jurisdiction” and (b) she was alert to the possibility that the Innes application might be a vehicle for Mr Walker’s re-entry into goods vehicle operator licensing.   The explanation given for the identity of the applicant’s representative was that Mr Walker had been to a public inquiry before and the Innes brothers had not, so he was to speak for them. 

(iii)            The Traffic Commissioner was further concerned about the connection between the Innes brothers and Mr J G Innes who had been before the Deputy Traffic Commissioner at a public inquiry involving J C Innes & Sons and 5 drivers (decision 5 March 2009) and before the Transport Tribunal on appeal (2008/223) followed by an appeal to the Court of Session where he had lost.  She had also refused an application for the return of an impounded vehicle on 2 June 2009, and that too was before the Transport Tribunal on appeal at the time of the public inquiry considering the Innes brothers’ application.  Mr J G Innes was the father of the two Directors of the Appellant company, and had held a standard national goods vehicle licence from about 1993.    At his public inquiry the DTC had found “a culture of creating false records”.  VOSA believed that tachograph systems were being interfered with and there was no system of control stopping drivers falsifying records and using interrupter devices.  The DTC had not only revoked, inter alia for loss of repute and professional competence, but had also disqualified Mr J G Innes for 5 years, and this was upheld by the Transport Tribunal.  However Mr Innes had continued to operate on a stay until 18 December 2008 when the Court of Session had disposed of the appeal to them.  The impounding indicated that he had nevertheless continued to operate.

(iv)            The Directors of the Appellant company said they had called their company Innes Transport because that was their last name.  James Innes was in cattle work and he said people would know Innes Transport “was him” as he buys and sells at cattle markets and needs a licence to deliver his sales and purchases as he had done for 4 years.  He also traded in grain and bought commodities, but although also an employee of the family business had only procured livestock and dealt with agricultural customers.  He had no financial investment in his father’s business.  He had decided to set up the Appellant company with his brother not only as he had always wanted to do so, but with no licence available for his livestock trading when his father’s licence was revoked it meant it was a good time to incorporate his own company.  He said that he had his own house and did not live with his parents, and had brought in his brother George who was not happy in his previous employment. He conceded that their operating centre was on his father’s premises, which were not being used so that at present they were getting it for nothing as no rent had yet been settled.  Ms Stuart worked in animal welfare and she and James Innes knew each other through cattle.  She had had an LGV licence since she was 21 and would give up her current job once they had the licence, as would Mr Watt who had recommended her as Transport Manager.  They had unfortunately lost the proposed interim licence work to another haulier, but would obtain other work.   

(v)             The Traffic Commissioner  had nevertheless pointed out that there were strong connections with the Directors’ father as it was through him that James had obtained the cattle work, besides which his father had employed him and paid his tax and national insurance.  However Mr James Innes insisted that the new company was to be a fresh start with none of his father’s drivers transferring, and in any case the brothers would not be doing what their father had done, which they did not consider “very clever”.  Mr James G Innes had also written to confirm that he would have nothing to do with the brothers’ business and the brothers themselves had made a formal written statement to this effect witnessed by a solicitor.  Mr George Innes confirmed this and stated that he had previously worked away from the family business, including in oil and offshore, with which he was bored, and always being interested in lorries (being an engineer) he had decided to join his brother.  The Traffic Commissioner also heard from Ms Stuart, who was also shocked by Mr J G Innes’ case, and reiterated that she would not want to be associated with such behaviour or with Mr J G Innes.

(vi)            In final submissions the Directors of the Appellant company stated they had done everything possible to ensure compliance, including going to Bon Accord training. They offered to move operating centres if that was made a condition on their licence.  They had had nothing to do with the impounded vehicle and did not feel that that incident should be held against them.  They submitted that the undertaking that they had all three given that Mr J G Innes would have nothing to do with their licence should be sufficient.  The Traffic Commissioner nevertheless found such strong connections an adverse indication to grant of a licence to them, and refused the application: she said the impounded vehicle had been used for the sawmill business which was to be the work on the interim licence that had been applied for although the brothers had lost the business; also the brothers other work contracts had been found through the father.  She said this was all “a seamless transition” from the revocation of the father’s licence to the new company.  She did not believe Mr J G Innes’ letter as he had “no repute and honesty”.  She gave no weight to the brothers’ signed and witnessed document, which she said was not an affidavit or statutory declaration.  She added that the brothers came from a family that “cannot be trusted in goods vehicle operator licensing”. 

3.           At the hearing of the appeal the Appellant company was represented by Mr J McLaughlin of Culley & McAlpine, Solicitors, who had provided a helpful skeleton argument for which we were grateful.  His grounds of appeal included the Traffic Commissioner’s reaction to the presence of Mr Walker, which he said had clearly influenced her adversely; her decision that Mr J G Innes was untruthful  and untrustworthy without hearing any evidence from him, and despite the fact that his appeal to the Transport Tribunal in the case of the impounded vehicle had been successful as the Tribunal had ordered a rehearing as a “fresh start”; her being inappropriately influenced against the Appellant company for using Mr J G Innes’ former operating centre; her assumption that the new company was a “phoenix”  whereas nothing had been hidden and the family name had been used as it was the Directors’ family name; her finding that there was no “clear blue water” between the father and the sons who are Directors of the Appellant company whereas there was no connection through vehicles or drivers with their father, the Transport Manager had no connection and the brothers had no convictions nor previous appearances at public inquiry; and her assumption that if they had picked up some of their father’s previous work they had not done so in open competition with other operators.

4.           Mr McLaughlin asked us either to grant the licence or to refer it back to the Traffic Commissioner for rehearing before another Traffic Commissioner or Deputy who had not been previously involved so that there might be the “fresh start” as achieved in the impounding case.  He submitted that the Traffic Commissioner had formed a poor view of the case from the start so that the Appellant company had not had a fair hearing.   He added that she had not given any credit to James Innes for obtaining grain contracts from a friend and farm machinery work which was never his father’s, nor for the brothers’ offer to move operating centres and to have that as a condition on the licence.  Moreover she had required James Innes to prove his funding was his own, and had been his own capital for 2 years, since she suspected the hand of Mr J G Innes in this too, but when he had shown her where he had obtained the money she had given scant and grudging credit.  Little weight appeared to have been given to the Transport Manager’s independence and firm intention to have nothing to do with Mr J G Innes, by whom she had never been employed. 

5.           We agree with Mr McLaughlin, and with his submission that the Traffic Commissioner appeared to have relied on “guilt by association” which he had also identified in some other reported cases cited to us where other Traffic Commissioners’ suspicions had not been borne out on appeal.  We allow the appeal and direct that the case be remitted to the Traffic Commissioner for rehearing by a different Traffic Commissioner or Deputy.

  Frances Burton

27 November 2009