Neutral Citation Number: [2010] UKUT 62 (AAC)
TRAFFIC COMMISSIONER APPEALS
ON APPEAL from the DECISION of Richard Macfarlane
Deputy Traffic Commissioner for the
Scottish Traffic Area Dated 20 October 2009
Before:
Frances Burton, Judge of the Upper Tribunal
Patricia Steel, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal
Appellant:
VARI ADAMS (t/a EUROBOAT TRANSPORT
Attendances:
For the Appellant: John McLaughlin of Culley & McAlpine, Solicitors
Heard at: The Eagle Building, 215 Bothwell Street, Glasgow G2 7EZ
Date of hearing: 22 January 2010
Date of decision: 19 February 2010
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED.
1. This was an appeal from the Decision of the Deputy Traffic Commissioner for the Scottish Traffic Area dated 20 October 2009 when he revoked the Appellant’s International Goods Vehicle licence under ss.26(1)(f), (g) and (h) and 27(1)(a) and (c) and disqualified the Appellant from holding or obtaining an operator’s licence indefinitely under s.28 of the Goods Vehicle (Licensing of Operators) Act 1995.
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’s operator licence was granted by the Traffic Commissioner on 3 February 2006. There is one vehicle specified on the licence. The operating centre is at Unit 1, 95 Westburn Drive, Cambuslang, Glasgow. The Transport Manager is Mrs Vari Adams.
(ii) Mrs Adams was called to a public inquiry on 1 September 2008 following an adverse VOSA report from a Vehicle Examiner concerning an “S” marked prohibition. The public inquiry resulted in Mrs Adams receiving a formal warning about her maintenance standards and a requirement to produce evidence of her continued financial standing, which was then approved at a further hearing on 15 January 2009. There was next a roadside meeting with VOSA on 17 March 2008 as a result of which VOSA made investigations into alleged tachograph infringements, resulting in an adverse report from a Traffic Examiner. Mrs Adams was then called to a further public inquiry which took place at Edinburgh on 14 July 2009, at which she was present, represented by her husband, Mr Alastair Adams. TE Hutchison represented VOSA.
(iii) The evidence of TE Hutchison was that initial examination of the tachograph charts had detected 2 periods of missing mileage, one in which there was no finishing odometer reading: Mr Adams explained that this was because the authorised vehicle had been changed although the registration number had been retained. Secondly, TE Hutchison stated that VOSA had no idea how much mileage was missing between 4 and 15 February as no charts had been submitted for that period. Further, the end mileage on the chart dated 13 March was illegible. The public inquiry was then adjourned to enable VOSA to bring copies of the charts supporting their evidence that there were infringements on those charts which had been submitted and for Mr Adams to look for the missing charts not tendered.
(iv) The public inquiry was first adjourned to 7 August 2009 but it was in fact reconvened on 15 September 2009. On their arrival the Deputy Traffic Commissioner asked why Mr and Mrs Adams (on this occasion accompanied by their son, Mr Andrew Adams) were 45 minutes late (commenting that they had also been late for the previous public inquiry), the reason for which was said to be traffic congestion. During the adjournment TE Hutchison had prepared an addendum to her initial report, a copy of which had been sent to Mr and Mrs Adams. A further letter dated 23 July 2009 had been sent to Mrs Adams by the Office of the Traffic Commissioner setting out the recalculated missing mileage (which was then 3152 kms), 8 instances of missing centrefold omissions, 7 of failing to take a sufficient break, 4 of failing to keep a record of work and 4 of exceeding the daily driving limit. The letter also noted a conviction of Mr Adams at Tain Justice of the Peace Court where on 25 June 2009 he had been fined £50 for contravention of s.99(5) of the Transport Act 1968 (making a false record). The Deputy Traffic Commissioner’s intention to consider whether there had been a material change in respect of the true identity of the licence holder and the source of control of the licence had also been notified. No evidence of financial standing was produced, in respect of which Mr Adams conceded that he had made a mistake in not bringing this evidence and stated that it could be produced forthwith. Mrs Adams produced a further 2 charts and photocopies of 3 others, which TE Hutchison was given time to examine. The Deputy Traffic Commissioner then gave Mrs Adams a further 7 days in which to produce the remaining charts and evidence of financial standing and, with which she complied (in cash) at the Office of the Traffic Commissioner on 22 September 2009. However no further charts were produced.
(v) At the reconvened public inquiry the case for VOSA was that there were missing mileages, driver’s hours offences and irregularities in Mr Adams’ charts and that, although he was a full time driver for the operator with 20 years experience as a driver of large goods vehicles, he had nevertheless created false records. Mr Adams did not accept that he had done this but did concede that he had allowed his son to drive on one foreign and one national journey which had not been double manned (which he accepted was a mistake). He had been interviewed under caution by the Traffic Examiner (TE Gail Travers) when he had been stopped on the M6 in Staffordshire on 17 March 2008 but he had not been able to give satisfactory explanations (including as to whether, where, when and how he had taken 45 hours rest between 13 and 16 March 2008). As a result he had been given a 45 hour prohibition. He had nevertheless claimed that the vehicle had been parked up in a secure yard at Glasgow and was “extremely offended and incensed” by her because she was not respecting his tachographs. There had then been a series of attempts to visit the operator at the operating centre (failing to secure an interview with Mrs Adams on 20 January 2009 as she was abroad) but succeeding on 27 January 2009 when she attended at Bishopbriggs Test Station. Interviewed under caution, Mrs Adams’ answers were less than satisfactory, disclosing that as the drivers were her husband and son she had no formal arrangements for training or return of charts which she said were “very difficult” to obtain although she had said she would “look into” the infringements which had been identified and “see that it doesn’t happen again”.
(vi) The charts and copy charts handed in at the beginning of the day had, however, accounted for 556 missing kms with no drivers’ hours offences revealed on 2 charts, but a daily rest offence on a third. VOSA had concluded that Mrs Adams might not have taken sufficient steps to ensure that charts were properly retained and that Mr Adams was adhering to drivers’ hours rules. They also concluded that she was not ensuring that Mr Adams did abide by the rules and regulations.
(vii) The case presented for Mrs Adams was that Mr Adams recognised there were irregularities, but explained that some of them were because he was teaching his son Andrew to drive, and this was confirmed by Andrew Adams. Mr Adams suggested that some of the missing charts might still be with the Police as he had taken a number to Kilmarnock Police Station in March or April 2008. He had not been given a receipt for them. He also explained some excess of driving hours by the fact that the abnormal loads the operator carried (i.e. boats) made it impossible to park at service stations or truck stops so that he had no option but to continue to drive. Mr Adams also stated that it was not possible to carry out work within the rules as he was unique, claiming “there is no one like me”, adding “I can’t run to these regulations” so that he carried out journeys “as legal as we can”.
(viii) Mrs Adams gave evidence that she was unaware that records needed to be kept for 2 years and that the reason for no charts being available for mid February 2008 as she and Mr Adams had been in Lanzarote to which the ferry only sailed once a week. She added that she organised maintenance for the vehicle, checked charts, asked her husband to complete his charts if incomplete, issued invoices and dealt with daily vehicle deliveries and uplifts, but was guided by her husband as the business was “theirs”. She said she would do better, would issue a warning to her husband, seek advice from VOSA and the FTA and would undertake a CPC refresher course.
(ix) The Deputy Traffic Commissioner then found that Mr Adams had a conviction for making a false record for which he had been fined £50, that Mrs Adams had made no proper arrangements for seeing that rules for driving and operation of vehicles under the licence were observed, that drivers’ hours and tachograph rules were observed and proper records kept, had not fulfilled her undertakings given on her application for a licence and that she did not have continuous and effective management for the transport operation.
(x) The Deputy Traffic Commissioner also criticized Mr and Mrs Adams for their lateness on both occasions on which the public inquiry had been convened, without good reason, and that Mr Adams had been “ill prepared” and had not brought copies of essential documents, of which further copies had had to be provided for him.
(xi) The Deputy Traffic Commissioner also found that the business was truly run by Mr Adams, although Mrs Adams had apparently obtained the licence as a sole trader, and her husband nevertheless referred to it as “my business” and had a “cavalier” attitude towards both VOSA and to operator licensing and the Deputy Traffic Commissioner. He had had no concerns about being late for the hearings and had even answered his mobile telephone while being interviewed under caution by TE Travers. The Deputy Traffic Commissioner also found that at the public inquiry Mr Adams was “forceful, dogmatic and not open to reason”, and was concerned that although Mrs Adams owned the vehicle Mr Adams owned the trailer, without there being any lease/hire agreement or any evidence of an employer/employee relationship between the spouses. He concluded that the VOSA case was established.
(xii) He considered the relevant question proposed in the recent case in the Transport Tribunal of Priority Freight Ltd v Paul Williams 2009/225, and concluded that it was unlikely that Mrs Adams would operate in future in compliance with the operator’s licensing regime. He concluded also that in terms of the Bryan Haulage decision that the conduct of Mr and Mrs Adams was such that the operator should be put out of business, so that the only proper consequence was to revoke the licence for Mrs Adam’s failure to observe her undertakings and because of the material change in that, although the licence was issued to a sole trader – Mrs Adams – the business was in effect under the control of Mr Adams. In all the circumstances the Deputy Traffic Commissioner also revoked the licence on the basis that Mrs Adams had been unable to control Mr Adams, indicating that this also meant that she was no longer of professional competence as she had failed to exercise continuous and effective control of the transport operation of the business. However he made no adverse finding in respect of financial standing as this had been satisfactorily proved. He then disqualified Mrs Adams indefinitely under s.28 of the Act.
(xiii) The Deputy Traffic Commissioner also held a separate Driver’s Conduct Hearing in which he held that Mr Adams was no longer fit to hold an LGV licence, revoked his licence under s.116 of the Road Traffic Act and disqualified him from holding or obtaining such a licence for a period of 3 years pursuant to s.117 of the Road Traffic Act. All orders were to come into force on 17 November 2009.
3. At the hearing of the appeal the Operator was represented by Mr John McLaughlin of Culley & McAlpine, Solicitors. His grounds of appeal were (i) against the finding that there had been material change in the entity of the licence holder and that the evidence did not support the conclusion the Deputy Traffic Commissioner when he had not believed Mrs Adams who had explained her duties as the licence holder and Transport Manager; (ii) against the loss of Mrs Adams’ repute since there was only one road transport offence conviction (of Mr Adams) although Mr Adams was not complying fully with drivers hours, and these shortcomings were not sufficient in total for loss of repute, which he suggested was merely “tarnished” perhaps meriting a warning, and further no reason had been given for that finding; (iii) against the finding of loss of professional competence as the Deputy Traffic Commissioner was not entitled to make this finding if not entitled to find against Mrs Adams’ repute; (iv) against the disqualification for which no reasons had been given, and that in any case disqualification was inappropriate and the indefinite period not justified because the only period for which Mrs Adams had allegedly lost control was February-March 2008; (v) against the finding that Mr Adams was “cavalier” because the Deputy Traffic Commissioner had misunderstood or misconstrued the evidence so that his decision lacked balance; (vi) against the Deputy Traffic Commissioner’s conclusion that the Appellant was in future unlikely to operate in compliance with the licensing regime; (vii) against the Deputy Traffic Commissioner’s conclusion that the Appellant ought to be put out of business, and that instead the alternatives of suspension or curtailment should have been considered, as no reasons for the choice of sanction had been given, and no discussion had taken place as to the effect of such regulatory action; (viii) generally that insufficient reasons were given, which therefore required review.
4. Mr McLaughlin relied on a number of other authorities in support of these grounds of appeal in addition to 2009/225 Priority Freight Limited, in particular in relation to the issue of disqualification: these included 2004/81 Christopher Roffey, where the period of disqualification was reduced from 3 years to 18 months; 2005/426 Kuldev Singh Oakal and 2005/355 Danny Poole International Limited where the appeal was dismissed but the issue of disqualification remitted for further hearing by the Traffic Commissioner; 30/2002 Steven Lloyd where the order for disqualification was set aside. He further relied on 2006/342 Courtney Coaches Limited where the appeal in a similar case of failure to check tachographs was allowed. He also found support in 3 cases which were dismissed: 2007/459 KDL European Limited and Kevin Lumsden, 74/2001 Brian Edward Clark and 10/2001 Thomas Smith.
5. Mr McLaughlin submitted that the Appellant had not been represented by his firm at the public inquiry but by her husband which had not been successful. He insisted that the evidence showed that Mrs Adams was in control not her husband, whom she had corrected when he had said it was “my business”. She had been a sole trader without a lawyer, and the point had not been sufficiently made that Mr Adams was just helping in the business. It was a yacht transport business and Mr Adams simply drove. He submitted that the disqualification was gratuitous even though there had been some mistakes but as Mr Andrew Adams, the son of Mr and Mrs Adams, had qualified as an LGV driver, a suspension or curtailment would have been an option. It could have been made a condition that Mr Adams had nothing to do with the business.
6. We were unable to accept these submissions or indeed any of the grounds of appeal. This was a bad case where it was very difficult, if not impossible, to find anything in the Appellant’s favour. It seemed to us that the Appellant had no real idea of how to be a compliant operator. Apart from a significant amount of missing kilometres (well over 3,000) there are some places in the transcript of the public inquiry where Mrs Adams demonstrates such a lack of competence that despite her having a CPC by examination (and her position as the operator’s Transport Manger) she clearly did not realise the seriousness of her omissions: to say then that she will “do better” is too little too late and in no way restorative of confidence that she would be able, regardless of willing, to do so. The Deputy Traffic Commissioner’s view that she failed to fulfil the undertaking recorded in the licence as required by s 26(1)(f) is clearly correct.
7. There is also the issue as to whether she, or Mr Adams, is in fact running the business: whether he is the guiding mind in reality, or only “helping in the business”. With some justification the Deputy Traffic Commissioner considered that the former was the case as it appeared that he was planning the routes. Given some of Mr Adams’ bullish answers to questions and unsolicited statements the Deputy Traffic Commissioner had concerns about this, particularly in view of the missing mileage and the conviction for making a false record, together with what he identified as Mr Adams’ “cavalier” attitude. We agree that this constitutes evidence that she was not acting as a sole trader and hence that there was material change within the meaning of s 26(1)(h). Revocation was therefore imperative. It is difficult to see how these significant problems in allowing the licence to continue could have been overcome by representation by a lawyer instead of by Mr Adams, who clearly gave a very bad impression to the Deputy Traffic Commissioner, especially in view of the fact that Mrs Adams’ performance as operator and as Transport Manager had been so poor. Even if the Deputy Traffic Commissioner had made it a condition that Mr Adams had nothing to do with the business he would still have been Mrs Adams’ husband and in a position to influence her.
8. Mr McLaughlin’s suggestion that some other disposal than revocation and disqualification would have been appropriate is, in our view, impractical and inappropriate. Curtailment when the operator runs only 1 vehicle (and even then the all important trailer belongs to Mr Adams) was clearly a “non-starter”. Suspension would have to be for such a period to enable Mrs Adams, in effect, to start afresh (which is what is clearly required) and this would in essence be no different from revocation, and was in any case arguably inappropriate for such severe transgressions as emerged in the public inquiry.
9. Accordingly, we do not see where the Deputy Traffic Commissioner was plainly wrong: indeed it appears to us that he was plainly right, both in revoking the licence and in disqualifying Mrs Adams and for an indefinite period. If she has a problem with this disqualification the remedy is always open to her, to do what she offered to do in taking a refresher CPC course, familiarising herself with an operator’s responsibilities and proposing a viable application for a new licence to the Traffic Commissioner, who is always able to lift a disqualification in appropriate circumstances. However “appropriate” in this context means turning over a completely new leaf and demonstrating competence to manage an ‘O’ licence whether or not an operator is also his or her own Transport Manager (and in a bad case such as the present an experienced and demonstrably capable Transport Manger would need to be proposed before any Traffic Commissioner might be minded to trust Mrs Adams again). Mr McLaughlin’s submission that the Deputy Traffic Commissioner was wrong in terms of the Priority Freight and Bryan Haulage questions cannot be serious as revocation and disqualification was clearly necessary here.
10. Mr McLaughlin’s reliance on his other authorities seemed to us also to be misguided. He relied, for example, on the successful appeal in 2006/342 Courtney Coaches where there was also a trend to ignore plain evidence of non-compliant charts and to fail to check them against timesheets and also some disregard by the Traffic Commissioner of earlier long standing compliant running and, even more important, a new system addressing the shortcomings in place and fully established at the date of the public inquiry. That case is in no way similar to Mrs Adams’. She has apparently not even realised her defaults, let alone made any attempt to put them right by establishing workable systems that might give the Traffic Commissioner confidence for the future. Mrs Adams knows what she needs to do if she wants to continue to transport yachts, although unfortunately unlike Courtney Coaches Limited she has not the benefit of 33 years of operation but of only 3 years, and that of disastrous non-compliance.
11. In all the circumstances the position is clear to us and we are of the view that the Deputy Traffic Commissioner made it clear in his Decision. We perfectly ”understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues” (to quote Lord Brown of Eaton-under-Heywood in South Bucks District Council & Another v Porter (No.2) [2004] UKHL, [2004] 1 WLR 1953, 1964 which is referred to in 2007/459 KDL European Limited, cited by Mr McLaughlin). Although revocation and disqualification of course affect Mrs Adams’ livelihood that is not a reason for leniency where there were, and remain, such plain defaults with road safety implications.
12. Accordingly the appeal is dismissed.
Frances Burton
Judge of the Upper Tribunal
19 February 2010