Neutral Citation Number: [2010] UKUT 399 (AAC).

Appeal No: T/2010/48

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF JAMES ASTLE,

DEPUTY TRAFFIC COMMISSIONER for the WELSH TRAFFIC AREA,

DATED 22 JUNE 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President (HESC); Judge of the Upper Tribunal.

 

Patricia Steel

Member of the Upper Tribunal

 

David Yeomans

Member of the Upper Tribunal

 

Appellant:

 

ANTHONY EDWARDS t/a JIM BERTIE LTD

 

Attendance:

 

For the Appellant: No attendance

 

Appeals heard at: Victory House on 7 October 2010

 

Date of decision: 22 October 2010

 

DECISION OF THE UPPER TRIBUNAL:

 

The appeal is dismissed

 

Subject Matter:

 

Non-attendance at Public Inquiry.

Failure to provide Traffic Area Office with an effective address for communication.

Failure by operator to follow-up when a public inquiry is postponed at the operator’s request.

 

Cases referred to:

 

None.

 

 

REASONS FOR DECISION:

 

1)    This was an appeal from the decision of the Deputy Traffic Commissioner for the Welsh Traffic Area made on 22 June 2010 when he revoked the operator’s licence under sections 26(1)(c)(iii), (e), (f), and 27(1)(a), (b) and (c) of the Goods Vehicles (Licensing of Operators) Act 1995. The Transport Manager, Mr J Griffiths, also lost his repute. The company director, Mr Anthony Edwards, was disqualified from holding or obtaining an operator’s licence, in any traffic area, for a period of 12 months.

 

2)    The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:

(i)    The Appellant is the holder of a standard national operator’s licence authorising 9 vehicle and 9 trailers. There are 9 vehicles and 3 trailers in possession.

(ii)   A fleet inspection had taken place in September 2007, which was marked ‘unsatisfactory’. A further maintenance investigation took place between 5 & 8 June 2009, which was also unsatisfactory. Although notice was given, the nominated Transport Manager was apparently unavailable. Six vehicles and 1 trailer were examined, and 4 delayed prohibitions were issued. There was no evidence of calibrated roller brake tests taking place, and the driver defect reporting system was inadequate. Following roadside checks over the past 5 years, 4 immediate and 9 delayed prohibitions have been issued, one marked ‘S’, indicating a significant failure of the maintenance system.

(iii)  The operator was called up to public inquiry by letter dated 3 August 2009. The scheduled date for the inquiry was 7 September 2009. The Transport Manager, Mr Griffiths, was also called up, by letter dated 27 August 2009.

(iv) On 31 August 2009 Mr Anthony Edwards was charged with 2 offences of assault and battery upon Leanne Edwards. He was bailed by the police to appear at Caerphilly Magistrates Court on 7 September 2009. Bail conditions required him to have no contact with Ms Edwards. Because of the clash of dates, the public inquiry was adjourned until 6 November 2009.

 

3)    On 5 October the operator advised the Office of the Traffic Commissioner that the new date clashed with a pre-booked holiday. A booking confirmation for Mr Edwards, Mrs Leanne Edwards, and 3 others showed that a holiday to Disneyland Paris was booked for 3 November 2009 to 7 November 2009. The case was again adjourned, until 5 February 2010.

 

4)    On 1 February 2010 Dr Ahmed signed a sick note stating that Mr Edwards should refrain from work for 4 weeks, due to anxiety and depression. The Deputy Traffic Commissioner made it clear that refraining from work would not necessarily prevent Mr Edwards attending a public inquiry. Consequently, on 4 February 2010, a Dr Hayat wrote to say that, in his opinion, Mr Edwards was not fit enough to stand up in court or be questioned. The public inquiry was again adjourned, until 22 June 2010. The call up letter, dated 18 May 2010, was sent to the company’s correct address for correspondence, by First Class post and Recorded Delivery on 18 May 2010.

 

5)    On 17 June 2010 a member of staff at the Office of the Traffic Commissioner received some information raising doubts about whether Mr Edwards would attend. The staff member tried to telephone the company’s known business line but it was dead. Mr Edwards’ mobile phone number was dead. There was no answer from his home phone number, and a different mobile number (not officially notified, but a number previously used by Mr Edwards) went to voicemail and a message was left.

 

6)    There was no attendance from Mr Edwards or Mr Griffiths at the public inquiry and, after considering the history, the Deputy Traffic Commissioner decided to proceed. Evidence from the Vehicle Examiner was admitted, including evidence of 8 more prohibitions (2 Immediate and 6 Delayed), and evidence that the specified operating centre had been vacated by the company. After retiring to consider the evidence, the Traffic Commissioner announced his decision, as set out above.

 

7)    The Grounds of Appeal from the company state that letters were not received “due to breakdown with ex wife, therefore I was unaware of public inquiry”. A covering letter from Mr Edwards claimed that he had separated from Mrs Edwards and she was not passing on mail. The only reason he received the decision letter was because “the postman came when I turned up to collect my son”.

 

8)    The tribunal is satisfied that the operator, a limited company, was properly notified. Letters advising of the hearing was sent to the company’s nominated address for communication, and to the Transport Manager, by First Class Post and Recorded Delivery. If the operator’s address was no longer appropriate, it was incumbent on the operator to provide the Traffic Area Office with an alternative.

 

9)    The duty upon an operator to ensure that the Traffic Area Office is able to communicate effectively is particularly important in a case such as this where it was fully known and appreciated that a public inquiry had to be re-scheduled for hearing. Mr Edwards only had to telephone the Office of the Traffic Commissioner in order to discover the new date. As it was, properly posted letters were not returned, no alternative postal address was provided, efforts by the Office of the Traffic Commissioner to make contact by phone failed, and the operator and Transport Manager made no effort whatsoever to keep in touch with the office (once an adjournment had been granted at the operator’s request) even though they were fully aware of the ongoing proceedings, and the fact that the Deputy Traffic Commissioner had already adjourned the hearing 3 times in order to accommodate a range of difficulties.

 

10) The tribunal is entirely satisfied that the Office of the Traffic Commissioner could do not more. The Deputy Traffic Commissioner had been more than accommodating over the preceding months and, had he linked the names on the assault charge sheet with the names on the holiday list, he might well have asked some probing questions a little earlier. This was a case involving the poor maintenance of heavy goods vehicles, over a period of time and with no indication of improvement, with obvious implications for road and public safety. The operator, Mr Edwards and Mr Griffiths were given ample opportunity to participate in the proceedings.

 

11) The tribunal has considered the evidence and the Deputy Traffic Commissioner’s analysis of it. Even though the operator and Transport Manager failed to attend the hearing, the Deputy Traffic Commissioner carefully assessed the evidence– including the failure of the Transport Manager to attend the maintenance investigation. The maintenance failings were serious, especially the prohibition record, and there was no evidence of any improvement. It appeared that the operating centre had been vacated, and no evidence in relation to financial standing was produced.

 

12) In these circumstances we take the view that the Deputy Traffic Commissioner’s conclusions were entirely right. This operator deserves to be put out of business. Disqualification received separate consideration and we agree that the conduct of Mr Edwards in failing to ensure satisfactory maintenance, and the consequent risk to the public, has been so serious that the revocation of his licence and his disqualification from holding or obtaining an operator’s licence for a period of 12 months is proportionate and necessary for the purposes of enforcing legislation designed to protect the public. The appeal is dismissed.

 

 

 

Judge Mark Hinchliffe, DCP

22 October 2010