Neutral Citation Number: [2010] UKUT 475 (AAC).

 

Appeal No.  T/2010/59

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Lester Maddrell

Deputy Traffic Commissioner for the

West Midland Traffic Area Dated 17 July 2010

 

 

 

Before:

Frances Burton, Judge of the Upper Tribunal

Patricia Steel, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

GEORGE WILLIAM GARMSTON

T/A GEORGE GARMSTON LIGHT HAULAGE

 

 

 

Attendances:

For the Appellant: Shane Crawford of Counsel

instructed by Ian Henery, Solicitors

 

 

Heard at: Victory House

Date of hearing: 19 November 2010

Date of decision: 17 December 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and the Order of the Deputy Traffic Commissioner shall come into effect at 23.59 hours on Sunday 30 January 2011.

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the Decision of the Deputy Traffic Commissioner for the West Midland Traffic Area, dated 17 July 2010, when he revoked the Appellant’s standard national goods vehicle licence under s.26(1)(a), s.26(1)(b), s.26(1)(c)(i), s.26(1)(c)(ii), s.26(1)(c)(iii), s.26(1)(e), s.26(1)(f), s.27(1)(a) and s.27(1)(c) of the Goods Vehicle (Licensing of Operators) Act 1995, with effect from 23.59 hours on 31 August 2010. The Appellant also lost his repute both as an operator and as a transport manager, and was disqualified from holding or obtaining an operator’s licence in any Traffic Area for 1 year from 1 September 2010.

2.           The factual background appears from the documents, the transcript of the public inquiry and the written Decision of the Deputy Traffic Commissioner, and is as follows.

(i)               The Appellant was granted a standard national goods vehicle operator’s licence on 4 March 1996. The Appellant was, and also had been, sole proprietor of the business and its Transport Manager. The Appellant was called to the public inquiry (held at Birmingham on 2 February 2010 and 23 June 2010) by letter of 21 December 2009. The issues to be considered were set out in the calling in letter of 21 December 2009, supplemented by further letters of 9 February 2009, and 19 May 2010. The matters in issue were

- use of unauthorised operating centre

- contravention of licence conditions (notification of convictions and change of PMI contractor)

- convictions of the operator and employees on 5 May 2009

- convictions of a further employee on 26 April 2010

- further convictions of the Appellant on 1 June 2010 (sentenced 16 June 2010)

- financial standing (satisfied on 2 February 2010)

- breach of undertakings about rules on drivers’ hours and tachographs, maintenance, and driver defect reporting

- the Appellant’s repute as an operator and transport manager

- the Appellant’s vocational driving licence.

(ii)              At the public inquiry the Appellant was first represented by a solicitor from Ian Henery & Co, solicitors, a Mr Singhara. When the public inquiry reconvened in June Mr Singhara had left the firm, which had instructed Mr Shane Crawford of counsel, who took over the case part heard, which involved some repetition of earlier evidence so as not to disadvantage the Appellant.

(iii)            Evidence was given at the February hearing by the Traffic Examiner and Vehicle Examiner involved (TE Love and VE Jewess), also all the drivers Bridgewood, Ormaston, Casman, Harris, Staples, Parkes, Mansell and Dale, and at the June hearing from TE Love and TE Lloyd. The Deputy Traffic Commissioner also considered a number of documents, including the calling in letters, Mr Singhara’s hearing bundle from February 2010, photographs of vandalism at the Appellant’s office, 6 references, for the Appellant, a letter from Driver Hill about an overloading incident on 4 May 2010 and a letter dated 14 June 2010 from the Appellant. He also had a skeleton argument from Mr Crawford.

(iv)            The Deputy Traffic Commissioner found the following facts on a balance of probabilities.

(a)             The Appellant operated a transport business with 4 vehicles, increased to 6 LGVs in mid 2009, and a number of smaller vehicles. He was assisted on Saturday mornings by a Miss Grocott whose full time job was in a large energy organisation where she managed 30 people. She helped with bookkeeping, invoicing and other administrative duties, including putting vehicles on the licence and removing them through the Leeds Central Licensing Office.

(b)             The nominated operating centre was 1 Popes Lane, Oldbury. In 2008 the Appellant had purchased another centre at 54 Potters Lane, Wednesbury. At some stage he started keeping 2 LGVs at Potters Lane to save paying to keep them at Popes Lane. It was unclear when this was, although the Appellant said it was sometime in 2009. In a crime report dated 29 January 2009 vandalism at Potters Lane was recorded and this was used to justify the Appellant’s inability to produce records from 2008. The Deputy Traffic Commissioner concluded that the Appellant had begun to keep the 2 vehicles at Potters lane from about that time, although no steps were taken to add it as an authorised operating centre by July 2009, although by the time of the DTC’s Decision it had been officially added.

(c)             The Appellant had been convicted of 6 tachograph offences as operator and 1 as driver. These were not notified to the Traffic Commissioner, and no excuse or reason was offered. At some point in 2009 he had also changed his PMI contractor (to a mobile mechanic in order to save money) and this too as not notified. These 2 failures to notify were breaches of s.26(1)(e).

(d)             The Appellant had been convicted of 7 tachograph drivers’ offences on 5 May 2009. 3 of his drivers were convicted of related offences. On 24 September 2009 the Appellant and his drivers had committed further offences of which they were later convicted, and all these were breaches of s.26(1)(c)(i) and (ii).

(e)             There were breaches of undertakings in relation to tachographs/drivers’ hours, maintenance and defect reporting in July 2009 in breach of s.26(1)(f).

(f)               The Appellant personally was in breach of practically every type of tachograph requirement – mode trace, speed limiter, centre field, hours, speed, correct chart and use of defective tachograph infractions were all found in relation to him and 8 drivers on top of the May 2009 prosecutions, and the Deputy Traffic Commissioner recorded “72 transgressions on 139 charts” (excluding 1 driver in respect of whose 85 charts there were “only 13 offences”).

(g)             On an announced maintenance inspection on 7 July 2009 VE Jewess and TE Love had found a vehicle which had been despecified on 4 February 2009 still displaying a valid licence disc and had warned the Appellant that this practice was open to interpretation as “intent to deceive”. On the follow up visit on 10 September 2009.  two vehicles were not in use and one  was found displaying its previous owner’s licence disc, and neither displaying a VOR notice.

(h)             VE Jewess had found PMI sheets missing, attributed to vandalism but those available showed missing detail, such as tyre tread depths, brake figures and lack of rectification records. TE Love had found vehicles which had been supposedly taken off the licence had never had licence discs returned (although the Appellant insisted that he had always done this) and one removed in November 2008 had charts proving that it had worked each month up to July 2009, a practice which enabled an unscrupulous operator to use more vehicles than he was authorised for since such a vehicle would pass roadside scrutiny unless further checks were made revealing actual specifications. TE Love had also found numerous tachograph offences which had been missed by the Appellant who had claimed that he had made random checks. Drivers had also missed or failed to record defects on their daily walk rounds, which had later been found on inspection.

(i)               There had been an incident on 24 September 2009 that revealed that the Appellant had knowingly employed a driver (Philip Thomas Mansell) to drive a 32 tonne vehicle while having a licence to drive up to 7.5 tonne vehicles, as a result of which insurance was invalid. Mr Mansell had never had a Category C licence and his licence in any event  had been revoked in June 2009.  The vehicle when stopped had also been found not to have had its tachograph calibrated, its certificate to be out of date by nearly 4 months and its gearbox not sealed. In respect of these matters the Appellant had claimed that he had asked his assistant Miss Grocott to put the vehicle on the licence the day before (i.e. 23 September 2009) but had been unable to produce any copy of the email he was supposed to have sent (23 September 2009 being a day when Miss Grocott would have been at her full time work). The Deputy Traffic Commissioner found that the Appellant had used the vehicle with intent to deceive, “with every expectation that he would get away with it”.

(j)               On 4 May 2010 another of the Appellant’s vehicles was found to be overweight when driven by another of the Appellant’s drivers (a Mr Hill) which the DTC considered evidenced “a slack regime” as this experienced driver should have been able to detect the overloading which was corrected by rearrangement of the load. A further irregularity had occurred on 6 March 2010 when a vehicle belonging to another driver (Mark William Dale), but apparently lent to the Appellant, had been stopped, when the driver had been found to be without his charts (and had received a driver prohibition notice) and the circumstances of its use indicated that it was not being used on the Appellant’s licence but on some other activity of the driver’s own.

(k)             The DTC gave credit to the Appellant for (apparently) unblemished operation from 1996 and for attempts and efforts to improve his regime (when he had bought a chart reader to facilitate chart checking, personally attended a course on driver’s hours and tachographs on 17 October 2009 together with 8 drivers, introduced a forward planner, an improved driver defect reporting system, random checks on drivers daily walk round inspections and ensured that a proper PMI contract existed). However when considering the Priority Freight 2009/225 question as to whether the Appellant was likely to be a compliant operator in the future, the DTC answered this in the negative, and moving on to that posed in Bryan Haulage 217/2002, as to whether the Appellant’s conduct was so bad that he should be put out of business, the DTC answered this in the affirmative. In particular he relied on his certainty that the Appellant had lied about always returning licence discs when vehicles were despecified, and was specifically convinced of this owing to the events of 24 September 2009, and by the fact that the Appellant had been warned about the likely interpretation of leaving licence discs in place on vehicles when they were despecified.

(l)               Unsurprisingly, following such a catalogue of deficiencies and shortcomings in the operation of the Appellant’s operator’s licence, the DTC had rejected curtailment or suspension as appropriate alternative disposals, had decided that the Appellant was “unworthy of the trust that the licensing system had placed on him” and that he had lost his repute as an operator, and further as a transport manager.  Despite his efforts to improve his regime he had not rehabilitated himself. He dealt separately with the Appellant as a driver, but considered that in relation to his activities as an operator there was no alternative but revocation and disqualification as set out in paragraph 1 above. He commended the Appellant’s advocate for his conduct of the hearing.

3.           At the hearing of the appeal Mr Crawford again appeared for the Appellant who was also present personally. Mr Crawford told us that the Appellant wished to appeal both the revocation and disqualification, which he submitted were disproportionate and harsh, giving insufficient credit for the Appellant’s efforts to rectify his defaults and for his unblemished record sine 1996 and for his personal circumstances at the time of the deficiencies, namely his marriage breakdown and the need to seek contact with his child.

4.           Mr Crawford presented us with a helpful skeleton argument and chronology for which we were grateful. He had also made a late application (dated 17 November 2010 and received by the Clerk to the Tribunal on 18 November 2010) to adduce further evidence in the form of documents not before the Deputy Traffic Commissioner since that evidence fortifies the Appellant’s submission that he wholeheartedly attempted to correct the failings when inspected by TE Love and VE Jewess “in 2009”. We explained to Mr Crawford that we were unable to accept such evidence since our task was to review the process before the Traffic Commissioner and to determine whether his Decision was plainly wrong on the basis of the evidence before him. In any case, we explained, reception of new evidence was always subject to specific rules which were not complied with in the present instance.

5.           Mr Crawford submitted that there had been a great deal of work done by the Appellant who now had a full time Transport Manager working alongside him, since of course there had been the opportunity to develop this working relationship in the 4 months since the DTC’s Decision when the licence had continued in force on a stay. We pointed out to Mr Crawford that, on any view, the revocation was richly deserved for the lengthy catalogue of defaults and breaches that had been found by the DTC. Mr Crawford conceded that he realised that there had been “some frailties”. He submitted, however, that disqualification was disproportionate as it would close the business after 15 years of compliant operation.

6.           Mr Crawford nevertheless submitted that some of the DTC’s findings were not as serious as might first appear. With regard to the use of Potters Lane as “an unauthorised operating centre” he said that the Appellant had never intended it to be an alternative operating centre at the time that he had bought it, as that had been in order to refurbish it, which was the reason that the Appellant had not had to pay rent. It was secondary premises only and had been vandalised badly as had been demonstrated by photographs and the crime report. However, he conceded that these premises were not registered as an operating centre until after the vandalism.

7.           With regard to the tachograph offences Mr Crawford submitted that the offences were not insignificant but were not “high end” either and that the Appellant had bought a chart reader on 16 March 2009.

8.           With regard to the discs for despecified vehicles Mr Crawford submitted that the Appellant acknowledged he had not always done this. He said that it was conceded that the lorry despecified in November 2008 had been used afterwards “but not every month” until July 2009.

9.           With regard to mitigation, Mr Crawford submitted that his personal life had interfered, his relationship had broken down, and a young child had been involved, with whom contact had been required “a protracted and painful process” to achieve. He submitted that the Appellant had taken steps to see that there would be no recurrence of such a situation and but for the impact of these personal circumstances the Appellant would never have allowed the adverse situation in his business to occur.

10.       Mr Crawford continued that the overloading incident had been explained by the driver and was not due to a “slack regime”.

11.       We pointed out to Mr Crawford that the Appellant had, inter alia, allowed the use of a vehicle without even a restricted licence being in place and had permitted other practices which went to the root of honest competitiveness and betrayed the Traffic Commissioner’s trust. As a result it was hardly likely that the DTC could envisage future compliance. While there was some positive material to weigh against the long catalogue of deficiencies the DTC had had at least 7 negatives to cancel out the positive aspects. Evidence had been heard that things had been done which plainly had not and much was reactive rather than proactive. Mr Crawford submitted that there must be some concept of rehabilitation as the Appellant had made investment and worked hard to ensure that there would be no repetition of failures. He repeated that in 2009 the Appellant had had a bad year. He had been going to work but his head had been elsewhere.

12.       We pointed out to Mr Crawford that this was not the whole story. We drew Mr Crawford’s attention to pages 667-8 of the transcript when the Appellant was questioned about the numbers of vehicles he was entitled to operate and what he had done with the discs of those despecified. His answers had been contradictory and unconvincing and had clearly led the DTC to conclude that the Appellant was lying, and was in fact essentially dishonest, impacting on any trust that might have been placed in him as an operator and leading to the disqualification. Mr Crawford insisted that this had been a naïve attempt at damage limitation by the Appellant who was trying to re-establish his good name as best he could. He submitted that the Appellant was not in any way “window dressing” as he had actually “done things” and actions spoke louder than words. However we pointed out to Mr Crawford that we could not accept this as the reality is that for extra vehicles the Appellant would have to show appropriate finance and what the Appellant had done led to the ability to take business from honest competitors who were legally licensed. It appeared that the Appellant had had 6 vehicles on the road together at some times, without authorisation for that number.

13.       Mr Crawford returned to the issue of the disproportionate nature of the disqualification. He insisted that the Appellant’s business could be inspected “today” or “at any time” and “nothing would be found untoward”. He had been trying to redeem himself for one bad year in 2009. He persisted that alternatives to revocation could have been found, with various “conditions” and “restrictions”.

14.       We reserved our decision in order to consider these submissions in detail. However we concluded that we could realistically accept none of them as sufficient for faulting the DTC’s Decision. The Appellant had been cheating so as to achieve unfair competition. He had lied about the change of operating centre and about the discs which had clearly not been returned so that they could continue to be used. If not caught we asked ourselves whether he would still be operating in this way. His improvements were always reactive, not proactive. It appeared to us that the Appellant may have been operating in this way for a long time, not “just” in the “bad year” of 2009. The result was that the essential element of trust of an operator was missing as the Appellant had personally undermined that trust.

15.       We were also concerned that the bank statements showed no evidence of paying drivers. Was this another as yet uncovered “frailty”? A disqualification of 1 year is not long and if the Appellant’s systems are now as good as he has attempted to tell us through Mr Crawford’s submissions he can of course reapply and attempt to persuade the Traffic Commissioner that there is good cause to lift the disqualification. He has of course had 4 months’ stay already.

16.       We can see no basis on which to allow this appeal and on the other hand all the reasons methodically detailed by the DTC not to, since we can find no instance in which he was plainly wrong and can only endorse the conclusions from his findings. The fact that there is a typographical error in his Decision (where in one case the names of Pope’s Lane and Potter’s Lane have been transposed) in no way dents the overwhelming conclusion that the licence of this operator must be revoked and the Appellant disqualified (for the extremely brief period, in the circumstances, of 1 year).

17.       The appeal is dismissed and the order of the DTC will come into effect on Sunday 30 January 2011 at 23.59 hours, allowing the same period of time for orderly closure of the business as that allowed by the DTC.

 

 

 

Frances Burton

Judge of the Upper Tribunal

17 December 2010