Neutral Citation Number: [2009] UKUT 268 (AAC)

Appeal No.  2009/503

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 24 August 2009

Before:

Judge Frances Burton

Leslie Milliken

Stuart James

Appellant:

TS TRANSPORT (SCOTLAND) LIMITED

Attendances:

For the Appellant:  John McLaughlin of Culley & Stone, 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 in that the order for suspension is revoked and the curtailment of the authorisation to 5 vehicles ordered by the Traffic Commissioner come into effect  4 weeks from the date from the date of this Order, that is to say at 23.59 hours on 27 December 2009 and shall last for 6 months from that date, the Order of the Traffic Commissioner that the licence be reduced from standard international to standard national shall stand and come into effect at the same time as the curtailment

REASONS FOR DECISION

1.           This was an appeal from a decision of the Traffic Commissioner for the Scottish Traffic Area dated 24 August 2009 when she suspended the Appellant company’s standard international goods vehicle operator’s licence for 4 weeks from 23.59 hours on 30 September 2009, curtailed the fleet from the end of the suspension period, reduced the operator licence to standard national status and took action against the vocational licences of a number of drivers.

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 operator company holds a standard international goods vehicle operator licence authorising 10 vehicles and 10 trailers, with 7 vehicles specified. The Directors are Brian Wright (the father) and Darren Wright (the son). Darren Wright came to the Traffic Commissioner’s attention when he was Transport Manager for another operator, Peter Daniel, about whom there had been an adverse VOSA report which had led to a public inquiry following which the Traffic Commissioner had decided that she must call the Appellant company to public inquiry as well in order to assess the repute of Mr Darren Wright, since Peter Daniel was in very serious breach of the tachograph and drivers hours rules. The operator company Mr Brian Wright, Mr Darren Wright and their drivers (including both father and son in their capacity as drivers) were called to a public inquiry at Edinburgh which was set for 22 and 23 June 2009. They were all represented by Mr J. McLaughlin of Culley & McAlpine, Solicitors. Mr W. Smith, Transport Consultant appeared for the Appellant as a witness. Financial standing had been confirmed in advance.

(ii)              Mr J. Harvey, a Senior Traffic Examiner, was present at the public inquiry for VOSA together with Traffic Examiner A. Duff. Their evidence was mainly in connection with individual drivers. It appeared that the Traffic Examiners had found very close links between Peter Daniel and the Director of the Appellant company, Mr Darren Wright, who provided him with work and a fuel card, and that Peter Daniel had been falsifying his records. In the Peter Daniel investigation Mr Darren Wright had said he was under additional pressure between November 2007 and March 2008 because his father had been. Moreover there had been further evidence that his father, Mr Brian Wright had been ill at least until February 2008 and that Mrs Linda Wright (Brian’s wife and Darren’s mother) was also seriously ill and had care needs. The Traffic Commissioner was therefore alarmed when she saw Mr Brian Wright’s name on tachograph charts and maintenance reports in the relevant period. An interview with Mr Darren Wright in connection with TS Transport revealed that his father had in fact been able to return to work for light duties, including maintenance such as when he, Darren, did inspections his father signed them off. The TE, however, had 28 charts with Mr Brian Wright’s name on them and was concerned that the DVLA should have been told of his condition.

(iii)            The TE’s analysis found 72 false records, 33 incidences of exceeding 4½ hours driving, 24 of unauthorised chart withdrawal, 69 of failure to enter time periods, 22 of insufficient daily rest, 13 of exceeding 90 hours in a fortnight, 3 of incorrect or incomplete centrefields, 5 of exceeding 10 hours daily driving, 5 of exceeding 9 hours daily driving, 3 manual records, 1 lost tachograph chart, and 150 failures to use the mode switch to identify periods of other work. There were 3790 missing miles of which 3043 were said to be due to driver D. Hunter not handing in his charts, 34 km was said to be due to Volvo at Aberdeen, leaving 713 km unexplained. Some of the anomalies related to the two Wright drivers.

(iv)            Of the drivers at the public inquiry, Mr J. Jellye admitted making a false record to disguise insufficient daily rest, “pulling the card” to “save the boss money” and for other reasons, and scratched the trace to hide moving the vehicle. He was said to be dangerous because he took insufficient rest.  Mr S. Walker had 5 false records and a range of other faults on his charts. He had had no prior training until Mr William Smith’s had taken place recently, but was now “doing everything right”. Mr D. Strachan had 33 false records and a regular habit of winding the clock back and logging off the system to hide his activity, to all of which he admitted. Mr S. Nicoll had 4 false records and a range of other faults which he could not explain. He claimed no intention to deceive but professed substantial ignorance until he had received William Smith’s training.

(v)             Mr Darren Wright had 1 false record and a range of other faults on his charts. He could not produce any time sheets to show he had complied with the Working Time Directive. The TEs had suspected Mr Wright of completing a manual chart to cover a journey by Mr Strachan for which he had not used a chart but he had not admitted this, saying he must have done the journey. Mr Wright also described a somewhat “hit and miss” manner of analysing tachograph charts that he employed and of how he then spoke to drivers, as he said that the Volvo Dynafleet was not yet installed in all cabs and that he himself was not yet fully provicient on it. Asked about his father’s illness he conceded that his father had had a stroke on 12 November 2007 but said that the consultant had said that it was not necessary to tell the DVLA. His father had come back to work after a couple of weeks on light duties. He did, however, say that the company now had different analysis procedures, including an independent adviser, Mr William Smith, and had purchased OPJAC equipment with monthly audits. Mr Smith was providing training. He added that he had been shocked by Mr Strachan’s behaviour.

(vi)            Evidence from the TEs in relation to Mr Brian Wright included 1 false record and 22 failures to record duty time, plus 2 lost charts (1 manual chart). Further his name was on 2 charts for 27 January 2008, where the charts appear to match journeys made by Mr S. Nicoll and Mr S. Walker. This was thought to be unlikely for Mr Brian Wright as it required him to start both journeys from Dundee within a very short timescale between that location and the places to which he had allegedly travelled. His explanation was that perhaps he had put the wrong date on the second chart. He insisted that he had only been away for a few days in the winter of 2007-8 when he had been ill. The nurse and the doctor had said that it was all right for him to drive. He said that he was a mechanic and driving was a secondary activity. He was a carer for his wife who had MS and her care had become difficult at the time of his transient global amnesiac episode on 12 November 2007. He said he signed off the maintenance sheets but his son Darren and Gary Todd did the actual maintenance work. He eventually insisted that he had done the 2 journeys from Dundee on 27 January 2008 as he had returned in the VW van that Mr Nicoll had followed him in and had picked up the second vehicle which was ready in the street for him.

(vii)           Mr Darren Wright had many excuses for the drivers’ defaults. He said Mr Jellye was dismissed. Mr Strachan was a real friend and Mr Smith had given him training. Mr Nicoll had made human mistakes. He felt he had let them all down. He gave an account of his work with Peter Daniel where he said he had been a correct Transport Manager, advising Mr Daniel generally, but had not been paid as it was a temporary arrangement, he had not been aware of Mr Daniel’s defaults until Mr Daniel had had a vehicle stopped by VOSA. He had then gone to speak to TE Harvey after discovering that the clock was being wound. Asked about the effect of regulatory action he said that they could work around a suspension of 2-3 weeks but a revocation would not be so easy to cope with especially if he lost his repute as a Transport Manager. A curtailment would similarly lose work but could be managed and they could survive a reduction to a standard national licence as they did little international work at present.

(viii)         Mr William Smith provided supportive evidence of his audits and systems with which the Traffic Commissioner appeared satisfied. The TEs were extremely sceptical of the evidence given by Brian and Darren Wright as they had difficulty reconciling it. However the Traffic Commissioner was minded to give Mr Darren Wright credit for effort when he had discovered the problems at Peter Daniel and his own business, even though she categorised Peter Daniel as “a huge mistake” where he had got involved out of sympathy and friendship, and had not been hard enough on the drivers. She was nevertheless critical of him for going onto Mr Daniel’s licence as a Transport Manager when Mr Daniel was manifestly non-compliant. She concluded that the case was “finely balanced” and said she had “thought long and hard”. However in the interests of fair competition and road safety she had elected the suspension followed by curtailment to 5 vehicles and downgrading to a national licence as set out in paragraph 1 above, warning the operator and both the Wrights as to their repute, suspending the vocational entitlements of both Brian and Darren Wright for respectively 2 months and one month, disqualifying Mr Jellye for 12 months, suspending Mr Scott Walker for 2 months and Mr Stephen Nicolls for 10 weeks. She disqualified Mr Strachan for 12 months. She also made Mr William Smith’s audits a condition on the licence.

3.           At the hearing of the appeal the operator company was again represented by Mr McLaughlin, who presented us with a helpful skeleton argument for which we were grateful.

4.           Mr McLaughlin’s first point was that the Traffic Commissioner appeared to have been under the impression throughout that the Appellant company had only been in operation since 6 August 2007. Whereas that was the date of the grant of the operator’s standard international licence to TS Transport (Scotland) Ltd, the operator had had a licence granted to Brian Wright and Darren Wright T/A TS Transport from 11 March 1999, and in fact they had first held a licence in 1997. Applications and Decisions No. 1730 of 25 June 2007 listed the Appellant company as submitting a new application due to a change of legal entity from that of a previous licence OM0037207. He submitted that her references to the Appellant as a “young company” must have unduly influenced her in fixing the period of suspension and curtailment. He said that the Traffic Commissioner had misunderstood other evidence such as that Darren Wright should have checked Peter Daniel’s speed limiters, which no maintenance contractor would do as they were sealed, had wrongly taken the Peter Daniel case into account when it had no place in the inquiry into the Appellant company, failed to take into account the improvements made by the Appellant or that the Appellant company had never been to a public inquiry before, had not stated her reasons for a 4 week suspension and not taken into account that this might well close the business, besides that the curtailment to follow the suspension would inevitably cause job losses, potentially for drivers not called before the inquiry. He submitted that the two sanctions together were excessive.

5.           Mr McLaughlin submitted that suspension was not required if there was to be curtailment, that no justification had been shown for the suspension nor any particular reason for the curtailment. He found her decision not entirely consistent especially as it would affect the maintenance side of the business, which had never been criticised, as well as the haulage side. Since she was also asking for quarterly reports on drivers’ hours and tachograph compliance he could have understood a short period of curtailment, which would quickly establish whether the Appellant company was compliant and achieving the regulatory aims. He asked us to substitute our own decision.

6.           We accept these submissions since the Appellant is not the “young company” assumed and consider that the suspension should be revoked and that the fleet should be curtailed to 5 vehicles for 6 months. The appeal against the suspension is therefore allowed and the curtailment ordered by the Traffic Commissioner will come into effect 4 weeks from the date of this decision that is to say at 23.59 hours on 27 December 2009.

 Frances Burton

27 November 2009