Neutral Citation Number: [2010] UKUT 469 (AAC).

Appeal No: T/2010/64

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF BEVERLEY BELL,

TRAFFIC COMMISSIONER for the NORTH WESTERNTRAFFIC AREA,

DATED 9 AUGUST 2010

 

Before:

Judge Mark Hinchliffe,

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

 

Leslie Milliken

Member of the Upper Tribunal

 

David Yeomans

Member of the Upper Tribunal

 

Appellant:

 

JWF (UK) LTD

 

Attendance:

 

For the Appellant: No attendance

 

Appeal heard at: Victory House on 29 October 2010

 

Date of decision: 23 November 2010

 

DECISION  OF THE UPPER TRIBUNAL:

 

The appeal is dismissed.

 

Subject Matter:

 

Non-attendance at public inquiry.

Relevance of history of non-cooperation with VOSA investigations.

 

Cases referred to:

 

None

 

 

 

 

REASONS FOR DECISION:

 

1)    This was an appeal from the decision of the Traffic Commissioner for the North Western Traffic Area made on 9 August 2010 when she revoked the operator’s restricted operator’s licence, authorising 4 vehicles, under S.26(1)(c), 26(1)(c)(iii), 26(1)(e), 26(1)(f) and S.26(1)(h) of the Goods Vehicles Licensing of Operators) Act 1995.

 

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

(i)    The Appellant is the holder of a restricted operator’s licence, authorising 4 vehicles, granted in 1992. The current director is Mr Nazir Patel, born 1 April 1957.

(ii)   A maintenance investigation was conducted between 1 and 4 February 2010. Mr Patel did not make himself available at the maintenance investigation, and the outcome was unsatisfactory. No inspection records were available on 1 February and, when produced on 4 February, showed alterations to the dates and mileages. Where records were found, the time gaps between some safety Inspections, which should have taken place every 8 weeks, were extended to 3 months. There were no daily driver walk-round checks, and there was no written driver defect reporting system in place. There was a poor annual test history.

(iii)  A follow-up letter from VOSA elicited a short reply from someone called Zaheera Patel, although her status or role in the company is not disclosed. The company undertook to implement a wall planner, and introduce a daily driver reporting system, and to ensure that all vehicle inspections are carried out “every 10 weeks”.

(iv) A Traffic Examiner also attempted to conduct investigations in relation to possible use of vehicles without valid MOT certificates, and drivers’ hours and tachograph record compliance.. The investigation, however, was frustrated because of total non-co-operation by the company. Mr Patel was never available and calls were not returned.

(v)   On 2 July 2010 the Office of the Traffic Commissioner sent a call-up letter to the company at its operating centre. The letter was sent by First Class post. The public inquiry was listed for 9 August 2010, at 2.00pm. Additional evidence was sent, under cover of letter (again sent First Class) on 5 August 2010.

(vi) At approximately 1.00pm on 9 August, a clerk at the Traffic Commissioner’s office received a telephone call from Zaheera Patel stating that the company had not received the original call-up letter, and had only just received the subsequent latter. Mr Nazir Patel was unavailable.

(vii)          At the public inquiry, the Traffic Commissioner decided to hear the evidence of the Vehicle Examiner and Traffic Examiner before reaching a view in relation to the claimed non-receipt of the original call-up letter. Both witnesses described their repeated attempts to contact Mr Patel in order to have a proper opportunity to conduct their investigations. The Vehicle Examiner concluded that he was being lied to, and that the operator was intent on giving VOSA “the run around”. He described how unavailable specified vehicles were claimed to be ‘off the road’ or “sold”. One vehicle was tracked down at a maintenance contractor and the contractor told the Vehicle Examiner that the vehicle had the wrong brakes fitted. Efforts to discover how this had happened, and how long the vehicle had been operated this way, were fruitless because no relevant documentary evidence could be produced. The Vehicle Examiner concluded he was being told “cock and bull stories”.

(viii)         Zaheera Patel had told the Traffic Examiner that she just worked in the accounts department, and was therefore unable to help on matters of substance. She continually made excuses for Mr Patel, despite a recorded delivery letter being sent requesting his assistance which, it could be proved, had been delivered.

(ix) The Traffic Commissioner also heard the evidence relating to maintenance, and Prohibition Notices including immediate prohibitions. One immediate prohibition, issued in March 2010 in Bristol, related to the mounting of a drawbar to trailer that was so insecure that detachment was imminent.

(x)   In the circumstances, the Traffic Commissioner decided not to adjourn, and she proceeded to a conclusion. She revoked the licence. After considering all options. She said:

“As at today’s date, I have no knowledge as to the operation of any of the vehicles … I have no knowledge as to the adequacy of the tachograph and drivers’ hours arrangements … I have considered that revocation is the only order I can make. I do so because I do not know where the vehicles are. I do not know that they are safe. I do not know that the drivers are safe, and I cannot allow that to continue”.

(xi) Amongst other things, the Grounds of appeal to the Upper Tribunal state that the public inquiry letter was never received and only came to light on the day of the hearing. However the grounds also state that:

“Upon investigation, it has come to our attention that the first correspondence which we received was only on the 2^nd July 2010. To be fair, these matters need some time to be investigated and we felt that we were not given any, apart from a very short space of time (14 days) to provide any documentation which was required”.

 

3)    Shortly before the hearing of this appeal, the tribunal received an email from Zaheera Patel stating:

 

“This is confirmation to advise the Tribunal that I will not be able to attend the appeal on Friday 29 October 2010. The reason for this is I am leaving for pilgrimage to Saudi Arabia. This was already booked 8 weeks ago and I am unable to alter any dates. Therefore the appeal has to be heard in my absence”.

 

4)    In view of this email, and the history, the tribunal decided to proceed.

 

5)    It is abundantly clear, from reading the reports of the Vehicle Examiner and, particularly, the Traffic Examiner, that this operator was intent, at all times, on avoiding proper contact with VOSA. That strategy of avoidance then continued in relation to the public inquiry. The Traffic Commissioner was entirely right to consider the alleged conduct of the operator in relation to VOSA investigations when she came to consider her own approach. We have no doubt as to the relevance of this history of non-cooperation when the Traffic Commissioner had to give thought to the question of whether or not to believe a claim that a properly addressed First Class letter had, for some unknown reason, not been delivered. The second letter clearly found its way to the operator, and there is no reason to suppose that the first one failed to do so. In all the circumstances, we see no procedural irregularity in the Traffic Commissioner’s decision to proceed. Indeed, bearing in mind the history, and the acute concerns arising as to vehicle maintenance and public safety, we find that there was no realistic alternative to proceeding.

 

6)    The facts stated in the Grounds of Appeal are of note. The second letter advising of the public inquiry was sent on 5 August 2010. The reference to 14 days to provide documentation is hard to reconcile with the relevant dates.

 

7)    Having regard to all the circumstances, the tribunal is of the view that, for the reasons she gave, the Traffic Commissioner’s decision to revoke this licence was plainly right. This operator had ample opportunity to engage in a professional and co-operative way with VOSA and with the Traffic Commissioner. If operators fail to do so, they cannot complain when such repeated and obvious avoidance of engagement results in the loss of a licence. In this case, serious questions relating to maintenance and road safety remained unanswered, quite apart from the other matters that seriously undermined the ability of VOSA ,and the Traffic Commissioner, to investigate and regulate the activities of this operator, effectively.

 

8)    All operators have a positive duty to co-operate with VOSA and the Traffic Commissioner. This operator has manifestly failed to do so. From beginning to end there has been no sign of Mr Nazir Patel, the operator company’s sole director. In our view he was very lucky not to have been disqualified, indefinitely. The appeal is therefore dismissed.

 

 

 

Judge Mark Hinchliffe, DCP

23 November 2010