Neutral Citation Number: [2010] UKUT 25 (AAC)

Appeal No. 2009/504

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Sarah Bell Traffic Commissioner for the

Western Traffic Area dated 24 August 2009

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

Stuart James Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

DARREN RONALD IVOR ALEXANDER

(t/a ALEXANDER HAULAGE

 

 

 

Attendances:

For the Appellant: The Appellant appeared in person

 

 

Heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 12 January 2010

Date of decision: 26 January 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the matter be REMITTED to the Traffic Commissioner for her consideration.

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the Western Traffic Area on 24 August 2009 when she revoked the Appellant’s licence.

 

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

(i) The Appellant has been the holder of a standard national operator’s licence authorising two vehicles since October 2007. The specified operating centre was at Bables Tenement, Burrington, Devon. The owner of the premises, Mr NR Jury, was the nominated transport manager.

(ii) In June and August 2008 the Traffic Area Office sent letters to Mr Jury in connection with another operator and on 14 August 2008 he replied that he had resigned as the Appellant’s transport manager on 1 June 2008.

(iii) On 19 August 2008 the Traffic Area Office wrote to the Appellant informing him that his licence conditions required him to notify the Traffic Commissioner of changes in circumstances. No reply was received and a reminder was sent out on 21 October. Again no reply was received and on 30 December a letter was sent stating that the matter would be referred to the Traffic Commissioner unless there was a reply by 13 January 2009. This letter was returned with a note in manuscript signed by Mr Jury and dated 12 January, stating “please note Alexander Haulage no longer have an operator’s licence at this address – moved 31 May 2008”.

(iv) On 13 January 2009 the Appellant telephoned the Traffic Area Office and told them that he would be sending a CPC certificate for a replacement transport manager the following day. This document was not received and on 23 February the Traffic Area Office informed the Appellant that the Traffic Commissioner would be considering disciplinary action by reason of the change in circumstances. On 26 February the Appellant telephoned the Traffic Area Office (both at Bristol and Leeds) and apologised for his failure to send in a new application for a transport manager and CPC certificate. There had been a misunderstanding with the proposed transport manager as to who was sending in the documents.

(v) On 2 March 2009 Mr Jury telephoned the Traffic Area Office and stated that the Appellant had left the Bables Tenement premises nine months before. He said that the Appellant had not applied for a new operating centre and it was for this reason that he had resigned as transport manager.

(vi) On 4 March 2009 the Traffic Area Office received an application to have a Mr David Tucker nominated as transport manager; a CPC certificate was submitted. On 9 March the Traffic Area Office acknowledged the application and requested an explanation why the nominated operating centre was not being used. On 14 March the Appellant wrote in to apologise for what had occurred. The delay in sending in the new transport manager’s application had arisen as a result of an oversight: the Appellant and Mr Tucker had each thought that the other was sending it. The Appellant stated that he did not know that Mr Jury had resigned until he was notified of this by the Traffic Area Office: Mr Jury had not informed him earlier and the Appellant had not been given a copy of the letter of 14 August 2008. The Appellant now understood that he was not longer permitted to use Mr Jury’s yard and asked to be permitted to be allowed to change his operating centre.

(vii) On 1 May 2009 the Appellant was called-up to a public inquiry which took place on 28 May 2009. The Appellant was the only witness. He explained that he was now running what had been his father’s business. He carried out his own maintenance. The arrangement with Mr Jury was that in return for his work as transport manager the Appellant would service Mr Jury’s vehicles without charge: the Appellant paid for use of the yard. The Appellant stated that the larger of his two vehicles spent most of its time either on the road or overnight at the mill where it was loaded.

(viii) The Appellant agreed that he had moved out of the premises at Bables Tenement and that he was now at Pathfields Business Park, South Molton, Devon. This was a short distance from a VOSA office and they used his weigh-bridge as and when necessary. He knew the staff well. He had given a month’s notice to Mr Jury and he had thought that they had left on good terms. He had not seen the letter of 14 August 2008 before he had been informed by the Traffic Area Office that Mr Jury had sent in the letter. He had tackled Mr Jury about it and was told that it was all a misunderstanding arising from an application for a licence which Mr Jury was making in his own name. He had seen Mr Jury regularly and had continued to maintain his vehicles without charge. He accepted that there had been delay in sending in the application for Mr Tucker to act as transport manager. He had now submitted an application for the operating centre to be changed to the Pathfields Business Park. He had not realised what the law was in relation to operating centres. Mr Jury had done very little for him. He agreed with the Traffic Commissioner that “you do not know what you do not know”. Most of the time one or both lorries were either on the road or at the mill for loading: the night loading had been going on since July 2008.

(ix) After submissions by the solicitor appearing for the Appellant the Traffic Commissioner decided that it was necessary to adjourn the hearing and to give an opportunity to Mr Jury to give evidence. The Traffic Commissioner indicated that the Appellant had been “ripped off” if he had been continuing to maintain Mr Jury’s vehicles without the latter doing anything for him. The Traffic Commissioner stated that “it is a question of credibility of evidence and who’s evidence I prefer and whom I consider to be more genuine”. She also said that the time until the adjourned hearing could usefully be employed by the Appellant to complete his new application which “will certainly be ready for an interim to be granted if there aren’t any problems”.

(x) The adjourned hearing took place on 24 August 2009. The Appellant did not appear and Mr Jury was the only witness. The Traffic Commissioner pointed out that “it does Mr Alexander no favours that he’s not here because I made it clear last time that I doubted whose word I believed”. It is unnecessary to refer to all Mr Jury’s evidence but he accepted that he had done very little work as transport manager and that he had failed to have “continuous and effective responsibility for the management of the transport operation” of the Appellant’s business (see s.58(1), Goods Vehicles (Licensing of Operators) Act 1995). He had had his vehicles maintained for nothing not because of his work as transport manager but because of money owed to him by the Appellant’s father’s business. The Appellant had paid for use of the yard. He disputed the Appellant’s evidence that he was unaware of Mr Jury’s resignation as transport manager. On the contrary, he had told the Appellant that he could not continue to be transport manager after the Appellant had ceased to use the yard. He had not said that there had been “a misunderstanding”.

(xi) Mr Jury was asked when he had last spoken to the Appellant and said that it had been on “Monday last week” (ie.17 August 2009). The Traffic Commissioner continued:-

“Q. What did he say?

“A. I received the bundle I have in front of me so I went and saw him with it and said, you have to attend the Public Inquiry on Monday next week and he said, I’m not going and I lied, because I saw him on Wednesday morning in South Molton and I asked him if he was going and he told me that he’d sent you a letter to say that he was not attending today.”

(xii) The Traffic Commissioner later told Mr Jury that “I believe you over Mr Alexander, who’s not here today, but from answers you’ve given there’s genuineness about it”. She indicated that she intended to check to see if the Appellant had sent in a letter seeking an adjournment before she gave her decision. Mr Jury then added:-

“Yes. I think he, you know, knows what’s going to happen, he’s resigned himself to what’s going to happen.”

(xiii) The Traffic Commissioner gave an oral decision the same afternoon after a search for a letter from the Appellant had been unsuccessful. She was sure that the Appellant knew of the date of the adjourned hearing and determined “that Mr Alexander chose not to attend today rather than not having been given notice”. She went on to find that Mr Jury was “a credible witness”. She accepted his evidence. As a result of the Appellant’s admissions that he had operated without a transport manager or an operating centre she found that he had lost his repute. The licence was revoked under ss.26 & 27(1)(a) of the Act. She continued:-

“At the last hearing I made it clear to Mr Alexander that I found the history of the licence and his lack of knowledge unacceptable. I told him it was essentially not on the job training, but I suggested that he had time to remedy the situation potentially before today as I have to judge the operator at the date of the Public Inquiry. Instead he’s chosen not to be here.

“The application for the operating centre at Pathfields is not as Leeds has suggested. There’s been no application made for an operating centre at the grain merchants. I have nothing in front of me to satisfy me that Mr Alexander has educated himself in terms of the requirements of the modern operating licensing regime. I have no reason to believe that he could or would move forward in a compliant way. I determine revocation is appropriate and proportionate for the reason given above, to protect the legitimate industry and fair competition. I have not disqualified Mr Alexander under Section 28 but should he wish to apply for a licence in the future then he is going to have to demonstrate a much more sound knowledge base and an enquiring mind.”

(xiv) The decision was notified to the Appellant by letter dated 25 August 2009. The Appellant telephoned on 1 September and the Traffic Area Office memo reads:-

“He told me that the reason he did not attend the inquiry was that his brother had been murdered and he was not in the right frame of mind to attend. He also said that he had sent a letter informing us that he would not be attending. Mr Alexander also went on to say that Mr Jury knew what had happened and was upset that he did not let the Traffic Commissioner know at the inquiry.

“I recall Mr Jury telling me that Mr Alexander had told him that he had written a letter informing us that he would not be attending (but did not say the reason why).”

On the same day the Appellant faxed over a letter dated 20 August 2009. This was for the attention of the Traffic Commissioner:-

“Can I please apologise for any inconvenience that this may cause but I won’t be able to attend the public inquiry dated the 24^th August 2009, my two younger brothers were attacked and stabbed at the end of July, unfortunately one of my brothers died at the scene and I don’t feel in the right frame of mind to attend an inquiry when my emotions are all over the place, my other brother has been going to and from hospital having operations and I hope that you understand why I can’t make the inquiry.

“Please can you inform me if this is a problem as I can’t afford to lose my operator’s licence, I hope this will be seen as a set of extreme circumstances”

This letter had not been received prior to the memo being written on 2 September.

(xv) The Traffic Commissioner’s comments are recorded in manuscript at the bottom of the memo. She stated that she had no power to review her decision and that the Appellant “will have to appeal and request a stay if so minded”. Subsequently the member of staff sent an appeal form to the Appellant and a stay was granted.

 

3. The Appellant appeared before us at the hearing of the appeal and was aggrieved that Mr Jury had failed to inform the Traffic Commissioner why he was unwilling to attend the hearing on 24 August 2009. He had told Mr Jury about the death of his brother and the serious injury to another and this was well known in the district. There was no question of his having chosen not to attend or having said that he knew that he had lied or that he knew what was going to happen and that he was resigned to it. On the contrary, he maintained his position as stated at the first hearing.

 

 

 

4. We stopped the Appellant at this point and retired to consider the situation. We have to say that we think it likely that the Appellant did tell Mr Jury why he did not want to attend the adjourned hearing and are concerned at Mr Jury’s failure to give the full picture to the Traffic Commissioner. We also think it unlikely that the Appellant said that he had lied and that he was resigned to the outcome. On the evidence available to her we cannot fault the Traffic Commissioner’s failure further to adjourn the public inquiry but have concluded that it is in the interests of justice for the matter to be re-considered. Accordingly, we set aside the orders made against the Appellant and remit the matter to the Traffic Commissioner. It will be for her to decide whether in the light of her findings it is preferable for the rehearing to take place before a different traffic commissioner.

 

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

26 January 2010