Neutral Citation Number: [2010] UKUT 228 (AAC)

Appeal No. T/2010/33

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Philip Brown Traffic Commissioner for the

South Eastern and Metropolitan Traffic Area Dated 31 December 2009

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

Patricia Steel Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

ALDERHALL SERVICES LIMITED

 

 

 

Attendances:

For the Appellant: No-one appeared

 

 

Heard at: Victory House. 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 9 June 2010

Date of decision: 30 June 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED, with effect from 2359 hours on 21 July 2010.

 

 

 

 

 

 

 

SUBJECT MATTER: Financial Standing

 

CASES REFERRED TO: None

 

 

 

 

REASONS FOR DECISION

 

 

 

1. This was an appeal from the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area on 31 December 2009 when he revoked the Appellant Company’s licence under ss.26(1)(b) and 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

 

2. The factual background appears from the documents and is as follows:

(i) The Company was granted a restricted operator’s licence for six vehicles with effect from 22 July 2008. The licence was subject to the condition that “three months original bank statements, covering May, June and July 2009, to be submitted to the Traffic Commissioner by no later than 7 August 2009”.

(ii) No bank statements were provided and on 11 August 2009 the Traffic Area Office wrote to the Company requiring the missing information to be supplied by 25 August. Messrs Venitt and Greaves, chartered accountants, replied on the Company’s behalf on 24 August. They stated that there had recently been a change of director and sought a further three months for the production of bank statements as requested.

(iii) On 27 August 2009 the Traffic Area Office replied with a questionnaire relating to the new director. The case worker asked for the questionnaire to be completed whereafter he would refer the request for further time to supply the bank statements to the Traffic Commissioner. The case worker asked for the questionnaire to be returned by 4 September.

(iv) The completed questionnaire was not returned and on 8 September 2009 the case worker sent a final reminder letter, seeking the completed questionnaire and the missing bank statements.

(v) There was no reply and on 23 October 2009 the Traffic Area Office wrote again, setting out the history and requiring the missing documents to be submitted by 13 November 2009. The Company was warned that in the absence of such information the case would be referred to the Traffic Commissioner to take action on the grounds that the Appellant had failed to comply with the condition attached to the licence and that it apparently lacked sufficient financial resources. The Company was invited to apply for a public inquiry to be convened before regulatory action was taken. The Company was required to reply to the letter by 13 November 2009. This letter was sent by recorded delivery and first class post to the Company’s address and also copied to Messrs Venitt and Greaves’ address.

 

 

(vi) There was no reply and on 10 December 2009 the case was referred to the Traffic Commissioner with a recommendation that the licence be revoked. On 31 December the Traffic Commissioner revoked the licence, with immediate effect.

(vii) On 27 January 2010 the Traffic Area Office informed the Company of the Traffic Commissioner’s decision, as set out in paragraph 1 above. This letter was also sent to the addresses mentioned above.

(viii) On 22 April 2010 Messrs Venitt and Greaves sent in a notice of appeal. They said “we were unaware that our licence had been revoked until one of our vehicles was stopped by VOSA today …..”. They pointed out that in the letter of 27 January 2010 the specified licence number was incorrect.

(ix) On 29 April 2010 permission to appeal out of time was granted. Subsequently the Traffic Commissioner granted a stay.

(x) On 14 May 2010 Messrs Venitt and Greaves were informed by letter that the appeal was listed for hearing on 9 June: the appeal papers were enclosed and the envelope was sent by DX to them at their stated DX number. On 28 May a Tribunal staff member telephoned to remind them of the hearing on 9 June: she was told that Mr Venitt was not available. On 4 June the same staff member telephoned again and said that the appeal was listed for 10.30am. She was told that Mr Venitt was away and that it could not be confirmed that the papers had been received or that he had been told of the appeal.

(xi) On 7 June 2010 Messrs Venitt and Greaves sent a fax stating that the telephone call on 4 June was the “first notification” they had received of the hearing date and that no correspondence had been received. No-one would be available to attend and they asked for an adjournment. This conversation was reported to the Tribunal which decided that an application for an adjournment would have to be made in person at the hearing. Messrs Venitt and Greaves were so informed.

(xii) Subsequently in a second fax Messrs Venitt and Greaves repeated their request for an adjournment, stating that the person dealing with the matter was away for the next two weeks. The Tribunal then confirmed its earlier decision about the need for attendance at the hearing and Messrs Venitt and Greaves were so informed by telephone.

3. On the hearing of the appeal no-one appeared for the Company. We do not accept that a firm of accountants is unable to make arrangements to provide a representative to appear at a hearing. Nor in the light of the history do we accept the unsupported assertion that the correspondence or appeal papers were not received.

4. In the circumstances we decided to determine the appeal in the Company’s absence. We must point out that the condition was originally imposed nearly two years ago, on 22 July 2008. The Traffic Area Office has behaved with patience and courtesy throughout, with continual reminders. Their letters were correctly addressed and the Company’s problems are entirely self-induced. It is true that the wrong licence number was referred to in the letter

 

of 27 January 2010 when the Company was informed of the decision but it is readily apparent from the file that this was no more than a clerical error. The memo to the Traffic Commissioner had the correct number upon it and it is manifest that he addressed his mind to the correct licence. There is nothing in the point.

5. We have to say that there is no merit in this appeal. Since a stay was ordered we shall grant a period of three weeks before our decision takes effect. Accordingly the appeal is dismissed, with effect from 2359 hours on 21 July 2010.

 

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

30 June 2010