Neutral Citation Number:  [2011] UKUT 47 (AAC)

 

 

Appeal No: T/2010/73

 

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF RICHARD TURFITT,

TRAFFIC COMMISSIONER for the EASTERN TRAFFIC AREA,

DATED 10 SEPTEMBER 2010

 

 

Before:

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

Stuart James, Member of the Upper Tribunal.

John Robinson, Member of the Upper Tribunal.

 

Appellant:

 

PAUL ANTHONY FAULKNER

 

Attendance:

 

For the Appellant: Mr J. Fear, Solicitor

 

Appeal heard at: Victory House, London

Date of hearing: 10 January 2011

Date of decision:   28 January 2011

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed.

Revocation will come into effect at 2359 hours on 25 February 2010.

 

Subject Matter:

 

Abuse of Operator’s Licence and Disc; Repute.

 

Cases referred to:

 

Bradley Fold Travel Ltd & Peter Wright v Sec. of State for Transport [2010] EWCA Civ 695

2001/41 Tate Fuel Oils

T/2010/006 Fisher Tours

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area made on 10 September 2010 when he found that Mr Faulkner had breached an undertaking given at an earlier public inquiry in relation to evidence of financial standing, and had also (for different reasons) lost his repute as an operator and as Transport Manager. The operator’s licence was revoked under sections 26(1)(f) and 27(1)(a) and (c) of the Goods Vehicles Licensing of Operators) Act 1995, with effect from 2359hrs on 5 November 2010. A stay was subsequently granted.

 

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 Standard International Goods Vehicle Operator’s Licence, authorising 3 vehicles and 4 trailers. He acts as his own Transport Manager. He has held a licence since 1996.

(ii)   On 15 December 2009, Mr Faulkner appeared at a public inquiry, and gave an undertaking that he would submit evidence to establish satisfactory financial standing by 1700hrs on 12 January 2010. However, adequate evidence of financial standing was not provided and, even at the date of the public inquiry against which this appeal is now brought (25 August 2010), the Traffic Commissioner found that Mr Faulkner had failed to supply the required evidence. He therefore concluded that he should consider taking action for breach of an undertaking, under the provisions of S.26(1)(f).

(iii)  The Traffic Commissioner’s findings in relation to Mr Faulkner’s repute (both as operator and as Transport Manager) are succinctly set out in his written decision dated 10 September 2010. The facts revolve around a vehicle specified on Mr Faulkner’s licence: MX06VHJ. The registered keeper history for this vehicle shows that Mr Faulkner was the registered keeper from 14 October 2009 to 17 December 2009. In the course of a Traffic Examiner’s enquiries, Mr Faulkner disclosed that a Mr Elsey (who did not have an Operator’s Licence) had approached him offering MX06VHJ for sale or lease. Mr Faulkner specified the vehicle and applied for the O-Licence disc, and then registered the vehicle in his own name. This was part of a wider agreement whereby Mr Elsey agreed to find work for Mr Faulkner’s other two vehicles when they had spare time, usually at weekends.

(iv) In evidence, Mr Faulkner stated that it was Mr Elsey who had paid for the tax and insurance of the vehicle, albeit using Mr Faulkner’s insurance company and policy. However, every time that Mr Faulkner attempted to use the vehicle for his own purposes Mr Elsey told him that it was doing other work.

(v)   Mr Faulkner did have a set of keys to MX06VHJ which were provided to him a couple of weeks after the vehicle was registered on his licence but, most of the time, he did not know who was driving the vehicle and he never sought to obtain any of the driver defect reports. Consequently, although he attended the site where the vehicle was kept between two and four times during the relevant period, and he observed the vehicle, Mr Faulkner had no direct contact with it, let alone any control over it. Mr Faulkner accepted in cross-examination at the public inquiry that, in reality, the vehicle was being used by Mr Elsey and that he (Mr Faulkner) could only use the vehicle by prior arrangement with Mr Elsey. Mr Faulkner did not dictate the work that the vehicle did, he had no control over the driver, he had a set of keys but made no attempt to access the vehicle, he failed to ensure that driver defect reports were collected and acted upon, and failed to ensure that tachograph or attendance records were made. It was also accepted that, when not in use during the relevant period, the vehicle did not return to Mr Faulkner’s operating centre.

(vi) This situation was allowed to continue until the end of November 2009 when Mr Faulkner saw that, since its previous preventative maintenance inspection, the vehicle had covered some 20,000 km. Mr Faulkner then asked Mr Elsey for the vehicle’s tachograph charts, but Mr Elsey replied that the charts had been thrown away. Mr Faulkner then removed the O-Licence disc from the vehicle, and returned the V5 form to the DVLA.

(vii)          All relevant matters were properly referred to in the call-up letters sent to Mr Faulkner as operator, and as Transport Manager. After considering the evidence, the Traffic Commissioner reached clear conclusions about the seriousness of Mr Faulkner’s conduct. Mr Faulkner had allowed a situation where an operator disc issued under his operator’s licence was used by a vehicle over which he had minimal control and for which, in reality, he was content to surrender control in order to obtain commercial work for his other vehicles. He had failed to exercise continuous and effective responsibility for the operation of that vehicle during the relevant period, as he was required to do as Transport Manager for his licence. He must, or should, have known that what he was doing not only failed to meet his obligations under his operator’s licence, but also allowed Mr Elsey to circumvent the requirements of the operator licensing regime. There were no effective systems for Mr Faulkner to ensure the reporting in writing of driver defects, to ensure that tachograph regulations and the rules on drivers hours were complied with or, indeed, that the laws governing the operation of this type of vehicle were complied with at all.

(viii)         On the positive side, the Traffic Commissioner accepted that Mr Faulkner eventually took action to bring the situation to an end – although the Traffic Commissioner also noted that, shortly after the period during which the abuse of his operator’s licence had occurred, Mr Faulkner had appeared at a public inquiry, and had failed to bring the situation to the Traffic Commissioner’s attention. The Traffic Commissioner concluded that Mr Faulkner’s actions were so serious that, in the short term at any rate, he should not be permitted to continue in the haulage industry, and that repute as an operator was lost. Additionally, Mr Faulkner’s failure to exercise the appropriate level of responsibility required of a Transport Manager was so serious that his repute as a Transport Manager was also lost.

(ix) The Traffic Commissioner considered disqualification but, having taken account of the operator’s personal circumstances and the impact on his business and his employees, he made no order for disqualification.

 

3)     At the hearing of this appeal, the Appellants were represented by Mr Fear who had signed the grounds of appeal. These asserted (and we set out the grounds of appeal in full):

 

(1) The Traffic Commissioner did not carry out any proper balancing exercise and in particular failed to properly consider other directions in relation to the licence;

(2) The Traffic Commissioner failed to properly consider the fact that the Appellant had voluntarily brought the arrangements with Mr Elsey to an end;

(3)The Traffic Commissioner failed to properly consider the length of the Appellant’s licence in his overall decision;

(4) The Traffic Commissioner wrongly found against the repute of the Appellant as transport manager and wrongly revoked the licence under S.26 of the Goods Vehicles (Licensing of Operators) Act 1995.

 

4)     We did not find these grounds of appeal to be particularly illuminating. Mr Fear submitted a skeleton argument prior to the hearing which substantially repeated the points set out above, with very little in the way of additional particulars. In 2001/41 Tate Fuel Oils and, most recently, in T/2010/006 Fisher Tours, the tribunal discouraged generalised grounds of appeal, and we would stress that the value of focussed and particularised grounds has become all the more pertinent following the Court of Appeal’s decision in Bradley Fold Travel Ltd & Peter Wright v Sec. of State for Transport [2010] EWCA Civ 695.

 

5)     Mr Fear attended at the hearing and immediately accepted that this was not the strongest case. Mr Fear realistically accepted that collusion in the abuse or misuse of an operator’s licence disc generally results in revocation because such conduct strikes at the heart of the regulatory system. However, Mr Fear submitted that the Traffic Commissioner should have explicitly addressed the suitability, or otherwise, of his powers of curtailment and suspension, and should have given greater weight to Mr Faulkner’s many years as an operator, and his eventual decision, and actions, to bring the illegal arrangement to an end.

 

6)     We are satisfied that the Traffic Commissioner’s decision should stand. The Commissioner referred to the date upon which Mr Faulkner’s licence was granted in paragraph one of his decision. And, as we pointed out to Mr Fear, this argument is ‘a double edged sword’ – an experienced operator and Transport Manager should surely know better than to allow a specified vehicle, and a disc, to be used in the way that happened here.

 

7)     The Traffic Commissioner also referred specifically to the steps taken by Mr Faulkner to bring the arrangement to an end although, when assessing the weight that this attracted, he noted that no mention was made of what had occurred when Mr Faulkner appeared at public inquiry in December 2009. It was, we think, open to the Traffic Commissioner to conclude that this aspect of the case was insufficient to deflect him from the almost inevitable conclusion that such conduct meant that the operator could not be trusted with operator’s licence discs in the near future and, if dependent on his operator’s licence for his business, he should be put out of business. Insofar as credit was due for the positive features identified, we note that no disqualification was imposed.

 

8)     The Traffic Commissioner did not explicitly address curtailment or suspension. However, if loss of repute is found the inevitable sanction is revocation, possibly followed by an application for a fresh licence, which may or not be granted. There must, of course, be a relationship of proportionality between the finding and the sanction. But if, after finding all the relevant facts and weighing up the negative and positive features in the balance, a Commissioner concludes that an operator cannot be trusted to comply in the future, or deserves to be put out of business, or both, then there is little to be gained by going through a formulaic process that addresses outcomes that are simply not in the frame. As the Traffic Commissioner pointed out, there will be cases where it is only necessary to set out the conduct in question to make it apparent that the operator ought to be put out of business. This is such a case. We therefore reject this ground of appeal.

 

9)     Given the Commissioner’s findings in relation to repute, his conclusions in relation to professional competence, and the breach of undertaking, were inevitable. Although the operator’s conduct struck at the heart of the operators’ licensing system, and may have led to poor maintenance and danger on the roads, there was no direct evidence of inadequate maintenance and a stay was granted, pending appeal. In the event that we found against the Appellant, Mr Fear asked us to allow 28 days before revocation came into effect. We are prepared to agree to this request. The appeal is dismissed. The revocation will come into effect at 2359 hours on 25 February 2010.

 

 

Judge Mark Hinchliffe, DCP

28 January 2011