Neutral Citation Number: [2011] UKUT 357 (AAC)

 

Appeal No.  T/2011/34

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

DEPUTY TRAFFIC COMMISSIONER for the Eastern Traffic Area

Dated 21 April 2011

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Patricia Steel Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

UTOPIA TRACTION Ltd.

 

 

 

 

Attendances:

For the Appellant: Mr Westfield, a Director of the Appellant appeared in person on behalf of the Appellant.

 

 

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

Date of hearing: 21 July 2011

Date of decision: 25 August 2011

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and that the revocation of the licence will take effect from 2359 on 23 September 2011

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Good repute and miscellaneous, (breach of conditions, convictions, failure to fulfil undertakings, material change in circumstances)

 

 

CASES REFERRED TO:-

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Deputy Traffic Commissioner for the Eastern Traffic Area to revoke the goods vehicle operator’s licence held by the Appellant, with effect from 0001 hours on 1 June 2011.

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

(i)                   The Appellant is the holder of a Standard International Goods Vehicle Operator’s licence authorising 3 vehicles and 3 trailers, which was granted on 25 May 2007.  In January 2011 it had 3 vehicles in possession but no trailers.

(ii)                 On 24 October 2009 Trevor John Westfield was appointed a Director of the Appellant.

(iii)                On 27 November 2009 the Office of the Traffic Commissioner, [“OTC”], wrote to the Appellant to point out first, that the transport manager then named on the licence had lost his good repute, second to provide details of the arrangements for replacing the transport manager and third to notify the OTC of other changes.  Carla Westfield, Mr Westfield’s wife), responded to these requests on behalf of the Appellant on 2 December 2009.

(iv)                On 14 June 2010, following an investigation which began in October 2009, the Appellant was convicted, in its absence, of offences of failing to produce tachograph record sheets, driver cards or a hard copy of electronically stored data.  It was fined £2,000, with a £15 surcharge and ordered to pay £1996.53 in costs.  The Appellant did not inform the Office of the OTC of the conviction.

(v)                 On 30 April 2010 Carla Westfield became the transport manager of the Appellant.  A lengthy ‘period of grace’ had been allowed to enable her to gain the necessary qualifications.  Her appointment became necessary when the previous transport manager was removed from the licence on 9 December 2009, following a finding, at a Public Inquiry relating to another operator’s licence, that he had lost his good repute.

(vi)                On 27 August 2010 the OTC wrote to Mr Westfield, as a Director of the Appellant, indicating that a report had been received from VOSA detailing the conviction set out in paragraph 2(iii) above and pointing out that Mr Westfield, as the only officer of the company at the material time, had failed to respond to a request for an officer of the company to attend for interview.  The letter went on to point out that the conviction had not been reported to the OTC within 28 days and it required that an explanation should be given in relation to both points.

(vii)              On 12 October 2010 the Appellant was called to a Public Inquiry which was to take place on 2 November 2010.  The letter indicated that the Traffic Commissioner was considering whether to take action on various grounds under s.26(1) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] and under s.27(1) of the1995 Act, on the grounds that the Appellant no longer satisfied the requirements to be of good repute, to be of appropriate financial standing and to be professionally competent.  The letter went to the set out the evidence on which the Traffic Commissioner intended to rely and the action which the Appellant needed to take.  The Public Inquiry was subsequently adjourned to 19 January 2011.

(viii)             On 17 January 2011 Mr Westfield signed a Statutory Declaration to the effect that he did not know, until September 2010, of the proceedings which resulted in the conviction on 14 June 2010.

(ix)                The Public Inquiry took place on 19 January before the Deputy Traffic Commissioner.  Mr and Mrs Westfield were both present and the Appellant was represented by Mr Catherall, of Goatlee, Solicitors.

(x)                 The Deputy Traffic Commissioner made it clear at the very start of the Public Inquiry that he was concerned, on the basis of what he had read about the case that the Appellant company was acting as a ‘front’ for others.  He went on to make clear that he would have to ask questions as to how the Appellant company was funded.  Later he said that he would need to know where payments for the maintenance of some of the vehicles had come from.

(xi)                Mrs Westfield, the transport manager, was then called to deal with some of these points.  She said that the Appellant hired vehicles by the week and that the price paid included the cost of all maintenance on the vehicles.  As a result, she said, the accounts of the Appellant did not show any separate payments for maintenance.  She said that they didn’t buy fuel directly  because the drivers held fuel cards belonging to Felixstowe Logistic Services, [“FLS”], (from whom the vehicles were hired), and that the cost of fuel was met through the invoicing process.  A little later Mr Westfield explained that the amounts debited to the fuel cards were paid by FLS but were then invoiced to the Appellant, and that the amount invoiced for fuel was then set off against the amount owed to the Appellant by FLS so that the Appellant was simply paid the balance, from which the Appellant’s drivers were then paid.  Mrs Westfield explained that the Appellant had had problems getting its own fuel cards because of the way in which the previous transport manager had run the business.  She said that these arrangements were in place at the time that she took over as transport manager.

(xii)               The Deputy Traffic Commissioner asked who ran FLS.  Mr Westfield replied that it was a Mr Graves.  The Deputy Traffic Commissioner asked whether he was known to the OTC and the Clerk replied that he was a disqualified operator.  Mr Westfield said that he became aware that Mr Graves was disqualified, as an operator, in May or June 2010.  He accepted that he had been working for him since then and was still doing so.  Later Mrs Westfield said that they had not stopped doing work for FLS after discovering that Mr Graves was disqualified as an operator because they could not find anyone else who would give them the same level of income.  She added that they had taken the view that FLS was a freight forwarder not an operator, because he did not run the vehicles.  Mr Westfield said that he had asked Mr Graves why he had been disqualified and added that he was told that it resulted from a case of corporate manslaughter in which a man had been killed because Mr Graves had failed to ensure that the driver responsible took enough rest.  Mr Westfield added that this had been confirmed as a result of what he had discovered using Google.

(xiii)             In answer to the Deputy Traffic Commissioner Mrs Westfield said that she did not consider his suggestion that the Appellant was not the operator but was acting as a front for FLS, who were the real operators, to be fair.  She agreed that the Appellant only did work for FLS and added that it had never worked for any other operator while she had been the transport manager.  She explained that that was because they could not get the rates paid by FLS from any other operator.

(xiv)             Mrs Westfield said that the Appellant did not own any vehicles because it had no capital, instead it hired all the vehicles that were used from FLS, who owned them.

(xv)              In answer to questions as to how the finances of the Appellant were run Mrs Westfield explained that because of difficulties in gaining access to the company account the Appellant was being run from a personal account.  She accepted that shortly before the Public Inquiry a sum of £17,200 had been paid into an account in the name of the Appellant.  The source of the money was FLS.

(xvi)             Mrs Westfield said that she would check the vehicles, on average once per month, whenever she came to the operating centre, from her home at Grimsby.  In answer to more detailed questions from Mr Catherall, as to her role as transport manager, she said that she was contracted to work 10 hours per week but in practice she worked as many hours as were needed to do the job.  She said that she endeavoured to know what the drivers were doing so that she could ensure that they kept within permitted hours.  As a result she ended up as a buffer between FLS and the drivers, ensuring that the drivers were fairly treated.  She added that the information as to where a driver was to go and what he had to do came from FLS, either directly or via the driver concerned.  She said that she issued tachograph charts each month and that she analysed them.

(xvii)            In relation to maintenance Mrs Westfield said that she would always inform the driver a week before his vehicle was due to be serviced so that he would be ready to hand it over and she would remind FLS that the service was due.  She said that she was able to do this because she had a wall chart, clearly marked with due dates for services.  She added that when repairs were necessary they were always done immediately or within a day.  She said that daily checks were recorded by the drivers on their time-sheets which she received on a weekly basis.  She explained that when a defect was found she would be told immediately by the driver and she would then telephone FLS to arrange for the repair.  She said that she was arranging for the work to be done at a DAF dealership called Chassis Cab.  In answer to the Deputy Traffic Commissioner Mrs Westfield agreed that the decision to go to Chassis Cab had been taken in conjunction with FLS and that the latter were named as the customer on the paperwork.  She said that maintenance records were kept by the Appellant and by FLS.

(xviii)          The Deputy Traffic Commissioner returned to the question of whether the Appellant was a ‘front’ enabling a disqualified operator to control the day to day running of the business.  Mrs Westfield said:

“I disagree strongly with that suggestion because otherwise why would I be going into Chassis Cab and getting my own maintenance agreement.  Surely I, if, if Mr Graves is the, is the guy he would have got all that for me and he’d have bundled it together and said: ‘Here, sign that’.  If only. It doesn’t work like that.  I have to go and find that.  I’ve, now also…  If I want to make any changes to the Operating Licence I’m going to have to advertise in the local paper and things like that.  I’ve, I’ve go to go and do that myself”.

Mrs Westfield went on to explain that she had day to day control over the drivers and she decided whether or not a driver was good enough and she ensured that they complied with the rules and kept proper records.  In answer to the Deputy Traffic Commissioner she accepted that it was FLS who said what work needed to be done.  She added that they tried to ‘sort out a week’s work’ but sometimes they threw in an extra job which could only be accommodated if the driver shortened his break or worked longer hours, which might sometimes involve a breach of permitted hours.  She said that she regarded this as her problem not the driver’s problem.  She added that the drivers would pick up their paperwork from a locked box in Felixstowe and that she would generally know what their instructions were.

(xix)             In answer to the Deputy Traffic Commissioner Mrs Westfield said that there were two Traffic Managers, who forwarded jobs to the Appellant and that both were employed by FLS.  She was then asked if anyone else worked for FLS in the same way.  At first she replied that the information would be subject to ‘Data Protection’ but then she was able to give some limited information.  She thought that some 35 vehicles were hired out in the same way as those hired to the Appellant.

(xx)               Mrs Westfield said that the Appellant’s drivers were not employed but were agents.  She was unable to produce paperwork to confirm this because the arrangements were made orally.  She went on to say that it was the responsibility of individual drivers to sort out their own tax and national insurance.

(xxi)             Mr Westfield also gave evidence.  He dealt first with the ‘period of grace’ during which the Appellant did not have a Transport Manager.  He said that he managed the transport operations of the business, liaising with FLS.  He checked the vehicles and issued tachographs, timesheets and recovered completed tachographs.  He said that he contacted drivers each day to find out where they were going, of if he was too busy he instructed them to telephone FLS direct.

(xxii)            Mr Westfield then dealt with the conviction for failing to produce tachograph sheets and other documents.  He said that the previous transport manager had told him that he had to see VOSA with regard to coming off the licence.  He explained that he had not received a summons from the court and that he was unaware of the conviction and had sworn a Statutory Declaration to that effect.  He said that he first became aware that the Appellant had been convicted when he received the letter of 27 August 2010 from the OTC.

(xxiii)           In answer to the Deputy Traffic Commissioner Mr Westfield accepted that he was aware by September 2010 that the Appellant had been convicted and fined.  He said that he telephoned the court at Ipswich and was told that they knew nothing about it.  He accepted that it was several months before the Statutory Declaration was sworn, in January 2011.

(xxiv)          Mr Westfield explained that he took over the Appellant after the previous transport manager told him that he intended to step down as a Director.  He said that he was not aware of the previous transport manager’s Public Inquiry.  He bought the issued shares of the Appellant for £2.00 in January 2010.  He confirmed that throughout the time when he worked as a driver while the previous transport manager was a director of the Appellant the sole customer of the Appellant was FLS.  He said that he had discussed his responsibilities as a Director with the previous transport manager.

(xxv)            Peter Milburn, a Vehicle Examiner, gave evidence, having had an opportunity to look at the forward planner, which Mrs Westfield had brought.  He pointed out a number of respects in which it was deficient, for example it lacked entries for MOT expiry dates, calibration of tachographs and other matters.  He considered it to be unsatisfactory.

(xxvi)          Bernadette Williamson, a Traffic Examiner, gave evidence about the investigation, which resulted in the conviction set out in paragraph 2(iv) above.  In cross-examination she confirmed that vehicles being used by the Appellant had been encountered on two occasions, (one being after Mr Westfield took over), and that no defects were found on either occasion.

(xxvii)         In his final submissions Mr Catherall conceded that undertakings had not been fulfilled.  He submitted that, as far as Mr Westfield was concerned, that the conviction had been ‘expunged’ by the Statutory Declaration so that it would be disproportionate to make any adverse finding on this ground.  On the other grounds raised under s.26 he invited the Deputy Traffic Commissioner to make no finding.  In relation to good repute and the suggestion that the Appellant was a ‘front’ Mr Catherall submitted that whatever suspicions may have been aroused initially they should have been allayed by the date of the Public Inquiry as a result of the evidence of Mrs Westfield.  He submitted that the Appellant was likely to operate compliantly in the future and that it was not necessary to put the company out of business.  He invited the Deputy Traffic Commissioner to put any shortcomings down to the fact that the Westfields were new to the business and still learning.

(xxviii)        The Public Inquiry was adjourned and re-convened on 9 March 2011.  A number of matters, including financial evidence were considered in camera.  It emerged that the £17,200 paid into an account in the name of the Appellant, (see paragraph xv above), was moved, shortly after the Public Inquiry held on 19 January 2011, to the personal account of Mr and Mrs Westfield.  After notification of the date for the Public Inquiry to re-convene it appeared that the money was returned to the account in the Appellant’s name.  An explanation was given to the effect that it had been thought that all that was needed was for the money to be ring-fenced for the operation, it had not been appreciated that it should be kept, at all times, in the Appellant’s account.  The Deputy Traffic Commissioner confirmed his earlier indication that he would give a written decision.

(xxix)           In a written decision, dated 21 April 2011, the Deputy Traffic Commissioner set out the background and the evidence, which we have summarised above.  The Deputy Traffic Commissioner held that the undisputed behaviour of the former transport manager and director was wholly unacceptable.  In relation to Mr Westfield the Deputy Traffic Commissioner found that he knew that monies used for the Appellant had to be in the Appellant’s name and had to remain in that name.  He found that the transfers of the sum of £17,200 were made by Mr Westfield in the full knowledge that they were wrong both in terms of operating licensing and company law.  He concluded that Mr and Mrs Westfield were trading as a partnership not as a limited company and that had the Public Inquiry not been re-convened the money would have remained in the personal account of Mr and Mrs Westfield.

(xxx)            The Deputy Traffic Commissioner then turned to the question of whether the Appellant was acting as a ‘front’ for Martin Graves and/or FLS.  He made the following findings:-  (i) money for drivers went through the personal account of Mr and Mrs Westfield and did so as a device because there were no written agreements with the drivers, (ii) all matters relating to the financing of vehicles were undertaken through Martin Graves, (iii) the true position was that the drivers were controlled by Martin Graves, albeit they were paid from accounts in the name of Mr and Mrs Westfield, (iv) the two traffic managers employed by Martin Graves provided the drivers with their instructions, leaving Mrs Westfield, as the nominated transport manager, as a token intermediary, making occasional representations to the traffic managers but without the control required of a transport manager, (v) some of Mrs Westfield’s assertions as to the way in which she had control were contradicted by the paperwork produced in relation to the arrangements between FLS and the Appellant, (v) all the bills were paid by FLS and (vi) no work was undertaken for any other client.  In short the Deputy Traffic Commissioner concluded that as a result of these findings the Appellant was acting as a front for FLS.  In addition the Deputy Traffic Commissioner found that Mrs Westfield did not have continuous and effective responsibility for the transport operations of the Appellant.  He concluded that for all these reasons the Appellant could not be trusted to operate compliantly.

(xxxi)           The Deputy Traffic Commissioner decided that all the matters raised under s.26 of the 1995 Act had been made out, i.e. that the Appellant had contravened conditions attached to the licence, (notification of the conviction), that it had incurred a conviction, that it had not fulfilled undertakings recorded on the licence (relating to driver’s hours and tachographs, keeping proper records and notification of the conviction), and that there had been a material change in circumstances, in that the Appellant might no longer have sufficient financial resources.  In relation to the latter finding the Deputy Traffic Commissioner held that whilst the Appellant had appropriate financial standing as at the date of the hearing he was not satisfied that the money would remain in the Appellant’s account, for the reasons given.

(xxxii)         On the basis of all the findings which have been summarised the Deputy Traffic Commissioner concluded that the Appellant had lost its good repute and he ordered that the Appellant’s operator’s licence was to be revoked with effect from 1 June 2011.  He went on to decide that it was not appropriate to find that Mrs Westfield had lost her good repute, since no separate notification had been sent to her.  However in the case of Mr Westfield the Deputy Traffic Commissioner concluded that he had abrogated his responsibility as a Director of the Appellant company.  He went on to find that he was unreliable and that not merely had he overseen a ‘fronting’ exercise for a disqualified operator but he had also attempted to deceive in relation to financial dealings.  For those reasons the Deputy Traffic Commissioner disqualified Mr Westfield from holding or applying for an operator’s licence in any traffic area for a period of 3 years.

(xxxiii)        The Appellant gave notice of appeal on 16 May 2011.  In the grounds of appeal, drafted by Mr Westfield, five points are raised in relation to the Deputy Traffic Commissioner’s decision.  In addition some other points are made, which we ought to consider, given that the Appellant is no longer legally represented.  We will deal with all the possible grounds of appeal individually in the paragraphs which follow.

3.           At the hearing of the appeal Mr Westfield appeared in person on behalf of the Appellant.  We are grateful to him for the oral submissions made on behalf of the Appellant.

4.           The first ground of appeal relates to the first sentence of paragraph 15 of the Deputy Traffic Commissioner’s written decision.  The Deputy Traffic Commissioner said this: “Transport manager Carla Westfield told me that she knew that she was working for a disqualified operator”.  The submission made, on behalf of the Appellant, is that Mrs Westfield has not worked for FLS or Martin Graves because she has only ever worked for the Appellant.  We are quite satisfied that the Deputy Traffic Commissioner did not mean that Mrs Westfield was ‘employed by’ FLS or Martin Graves.  Instead he was simply making the point that, she, as transport manager of the Appellant was doing work for FLS and/or Martin Graves in the sense that they were the source of the transport work done by the Appellant.  It appears to be accepted that she was acting in this way knowing that Martin Graves was disqualified from holding or applying for an operator’s licence.  If follows, in our view, that there is nothing in this ground of appeal.

5.           The second ground of appeal is that the Deputy Traffic Commissioner was “disinterested in what Mrs Westfield had to say, not even bothering to ask what she did as transport manager, it was the legal representative who asked her”.  We explained to Mr Westfield that there was nothing unusual about this because it was customary for the legal representative to ask the initial questions and for the Deputy Traffic Commissioner to test and clarify the replies to those questions once the legal representative had finished.  It follows that taking the evidence in this way does not indicate disinterest on the part of the Deputy Traffic Commissioner.  Indeed when one considers the transcript it is quite clear that the Deputy Traffic Commissioner was very interested in what Mrs Westfield did as transport manager.  There is, therefore, nothing in this ground of appeal.

6.           The third ground of appeal concerns the questions which the Deputy Traffic Commissioner asked about other people who were doing work for Martin Graves and/or FLS and his conclusion at paragraph 25 of the written decision.  In that paragraph he said: “I was not impressed at Carla Westfield’s reluctance to give me information that I sought, this potentially goes to credibility”.  We drew Mr Westfield’s attention to the fact that there did not appear to be any specific finding in the written decision which was adverse to Mrs Westfield’s credibility and she did not, in fact, lose her good repute, albeit this may have been because there was no separate letter alerting her to that risk.  At the end of the day the Deputy Traffic Commissioner saw and heard the witnesses, which places him in a very much more advantageous position than we are in.  It seems to us that this was a comment which he was fully entitled to make.  It also seems to us that, at most, it can only have made a limited contribution to the decision.  For these reasons we reject this ground of appeal.

7.           The fourth ground of appeal relates to the conclusion that the Appellant acted as a ‘front’ for Martin Graves and/or FLS.  This links with a comment at the start of the Notice of Appeal in which Mr Westfield alleged that the Deputy Traffic Commissioner “came into court with the pre-conceived idea that we were a front for Mr Martin John Graves and only looked to substantiate that belief”.

8.           While it is fair to say that the Deputy Traffic Commissioner gave a fairly clear indication, from the context of his questions, as to what he meant by the expression ‘front’ he never, at any stage, provided a full definition.  In our view this raises a point of general importance concerning the use of shorthand expressions both at Public Inquiries and in decisions.  We consider that Traffic Commissioners, (and the Tribunal), should, at some stage and preferably on the first occasion, explain what they mean when using shorthand expressions such as ‘front’ or ‘fronting’.  There are two reasons why this is necessary.  First, while most people in the industry will know what the shorthand expression means, others, and those not in the industry, who may still have an interest in the case, may not know.  Second, it is only by explaining what the expression is understood to mean that it is possible to assess whether the findings of fact which have been made support the conclusion that the use of the shorthand expression is justified.

9.           In the context of vehicle operator’s licensing ‘fronting’ means that a person, partnership or company, which does not have an operator’s licence, uses the operator’s licence held by another entity to conceal the fact that they are behaving in a way which requires them to have an operator’s licence of their own.  In other words it deprives the Traffic Commissioner of the right to control an ‘operator’, when Parliament has said that such an entity should be within his or her jurisdiction.  ‘Fronting’ is aggravated and very much more serious where it is apparent that the entity hiding behind the legitimate ‘front’ would be unlikely to get or would be debarred from holding an operator’s licence of their own.  In our view a well-founded conclusion that an operator is guilty of fronting can, on its own, provide justification for deciding that the operator being used as a ‘front’ has lost its good repute.

10.        In relation to this ground of appeal Mr Westfield submitted that other organisations, which did not have operator’s licences operated, as freight forwarders, in exactly the same way as Martin Graves/FLS and that those who carried their loads did not attract disciplinary action from Traffic Commissioners.  Next Mr Westfield explained that shortly after he took over the Appellant company he spoke to Martin Graves and it was agreed that Martin Graves would have nothing further to do with the Appellant, once the outstanding debt which was owed by the Appellant had been paid.  He went on to explain that having got the money together the Appellant was called to the Public Inquiry, with the result that the money had to be spent on legal fees.  He said that if he was allowed to continue to operate he would change the way in which the Appellant worked.

11.        Strictly speaking these were all matters which could and should have been raised at the Public Inquiry.  The fact that they were not considered and, if necessary, investigated at the Public Inquiry means that we are unable to give any weight to the first point because there is no evidence to establish whether Mr Westfield is making a fair or an unfair comparison.  As to the other points, even when they are taken together, they are, in our view, insufficient to displace the clear conclusions reached by the Deputy Traffic Commissioner.

12.        We have set out at paragraph 2(xxx) the detailed findings made by the Deputy Traffic Commissioner as to the relationship between the Appellant and Martin Graves/FLS.  We are quite satisfied that those findings disclose a classic case of ‘fronting’.  The reality, in our view, is that the majority of the important decisions were taken by Martin Graves, or those he employed and that Mr and Mrs Westfield were simply being used to give an air of respectability to an operation which would never have been granted an operator’s licence of its own.  In our view the fact that the Appellant never took on work from any other source is particularly telling.  Mrs Westfield said that this was because no-one else would pay such good rates as Martin Graves/FLS.  But that prompts the question: “why not”?  The answer, in our judgment, is because no-one else needed to pay a little extra in order to hide behind a legitimate operator.  In our view the conclusion that the Appellant acted as a ‘front’ is amply justified and this ground of appeal therefore fails.

13.        Turning to the suggestion that the Deputy Traffic Commissioner had made up his mind in advance it is difficult to see the basis for this suggestion, unless it is founded on one of the remarks made by the Deputy Traffic Commissioner at the very start of the hearing on 19 January 2011 when the Deputy Traffic Commissioner said this: “…. clearly the Public Inquiry has been called for the reasons set out … in the call-up papers which makes it pretty clear that it appears that this could be perhaps a front for others which could be illegal,…..”.  The underlining in this passage is ours.  We have done it to stress that this is not the language used by someone who has made up his mind in advance.  Instead it is the language used by a person who is keeping an open mind but alerting the operator, at the very start of the Public Inquiry, to one of the most important issues to be considered at the Public Inquiry.  The Tribunal has stressed, from time to time, that it is important for Traffic Commissioners when starting a Public Inquiry to ensure that those concerned are aware of the main issues to be discussed.  This practice helps to keep people to the point and helps to ensure that no-one is taken by surprise.  But it must, of course, be done and be seen to be done, with an open mind.  We are quite satisfied, from what the Deputy Traffic Commissioner said and from the conduct of the Public Inquiry as a whole, that he did have an open mind and that he did no more than fairly and properly ‘flag up’ an important issue.  For these reasons there is nothing in this point.

14.        The fifth ground of appeal concerns evidence given in camera.  It is not necessary to deal with this in any detail in an unpublished annex to this decision.  Instead it is sufficient to say that the Deputy Traffic Commissioner dealt with the matter by making it clear that he made no finding on the point one way or the other save to say that he found it was a matter of poor judgment to raise such a point when it was not capable of being substantiated.  In our view the contribution, if any, which this conclusion made in relation to the main findings in the Deputy Traffic Commissioner’s decision is so minimal that even if there was anything in this point it would not suffice to undermine the conclusion that this was a ‘fronting’ operation.

15.        Since all the grounds of appeal advanced by the Appellant have failed the appeal must be dismissed.  The Appellant asked for time to effect an orderly winding-up of the business, accordingly this decision will take effect at 2359 hours on 23 September 2011

 

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

25 August 2011