Neutral Citation Number:  [2012] UKUT 104 (AAC)

 

Appeal No.  T/2011/69

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DEPUTY TRAFFIC COMMISSIONER APPEALS

 

 

 

ON APPEAL FROM THE DECISION OF Mr M Dorrington

DEPUTY TRAFFIC COMMISSIONER for  EASTERN  TRAFFIC  AREA

Dated: 14 November 2011

 

Before: Judge Alan Gamble, Judge of the Upper Tribunal,

Leslie Milliken, Member of the Upper Tribunal, John David Yeomans, Member of the Upper Tribunal

 

 

Appellants: MELTON  CONTAINER LOGISTICS LTD and

MRS V CASSIDY

 

Attendances: Mr T Sasse, Barrister, represented both appellants

 

 

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 24 February 2012

Date of decision: 15 March 2012

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be allowed.

The Deputy Traffic Commissioner’s decision is set aside. 

The case is remitted for redetermination at large by a different Traffic Commissioner or Deputy Traffic Commissioner at a freshly convened Public Inquiry

 

SUBJECT MATTER: Good Repute

Disqualification

 

Cases referred to: None

 

 

 

 

 

 

REASONS FOR DECISION

 

1. This an appeal against the decision of the Deputy Traffic Commissioner for the Eastern Traffic Area of 14 November 2011 which was taken after Public Inquiries held on 29 June 2011 and 12 October 2011.  By that decision, he refused the application by Melton Container Logistics Limited, hereafter referred to as the Company, for a Standard National Goods Vehicle Operator’s Licence for fifteen vehicles and twenty trailers and disqualified Mrs V Cassidy, currently the sole director of the company, from acting as a director of any operating company for a period of three months.

 

2. On 17 November 2011, the Deputy Traffic Commissioner granted a stay of his decision.

 

3. Mrs V Cassidy attended the hearing, accompanied by the Company’s Transport Manager, Mr S. Smith.  Mr T Sasse, Barrister, represented both appellants.  We are grateful to Mr Sasse for his written and oral submissions.

 

4. To establish appropriate financial standing in regard to its application the company had to demonstrate that it had the sum of £71,100 readily available to it.  The company’s application was refused by the Deputy Traffic Commissioner firstly on the ground that it had not established appropriate financial standing. In paragraph 44(l) of his decision he put matters thus:

 

“I therefore determine that the applicant was not of appropriate financial standing. “

 

His conclusion, expressed in the above quotation, was based on what he had stated in the preceding sub-paragraph (i.e. sub-paragraph (k)) of paragraph 44 where he says:

 

“I am therefore not satisfied that there was evidence before me that the application owned the assets it relied upon to demonstrate that it was of appropriate financial standing.”

 

5. Among other criticisms of the Deputy Traffic Commissioner’s decision in respect of the company’s appropriate financial standing, Mr Sasse submitted that paragraph 44(k) was inaccurate and indeed unsustainable. He did so by calling attention to document 262 of the bundle.  That document is a letter from the company’s accountants dated 3 July 2011.  It reads as follows:

 

“I confirm that we act as accountants to this company.

 

I further confirm that we have examined the information concerning the financial standing of the company viz a schedule of vehicles and trailers from The Fleet Auction Group.  The only vehicle subject to finance is FJ57 KXB, approximately £9,500;  all other vehicles and trailers are unencumbered.  I also attach a schedule of other assets from B Alsopp & Sons Limited with their valuations.  These assets are all unencumbered.

 

I trust this information assists.”

 

 

The above letter is signed by a director of the company which acted as the company’s accountants and has attached to it two valuations, one (document 263) for the company’s fleet of vehicles and trailers and another (document 264) relating to other assets of the company.  The valuations on documents 263 and 264 indicate that the company had assets, whether readily available or not, valued in excess of £71,100.  Mr Sasse submitted that the contents of document 262 represented prima facie proof of the company’s ownership of the fleet of vehicles detailed on document 263 and of the assets detailed on document 264.  Thus paragraph 44(k) was a finding unsupported by evidence in that there was clearly evidence in the form of documents 262-264 “that the (company) owned the assets it relied upon to demonstrate that it was of appropriate financial standing”.  In Mr Sasse’s submission, the Deputy Traffic Commissioner had simply ignored documents 262-264 in reaching and expressing the conclusion contained in paragraph 44(k).  That was an irrational approach to an important piece of evidence.  Alternatively, in Mr Sasse’s submission, he had failed to adequately explain the crucial finding he had made in paragraph 44(k) by not saying what he made of the contents of documents 262-264.  However we might wish to categorise his error, in one or other of those respects the Deputy Traffic Commissioner had erred in law.

 

6. We accept Mr Sasse’s submissions narrated in paragraph 5 above.  Read literally paragraph 44(k) is not an accurate statement, standing the terms of document 262.  If the Deputy Traffic Commissioner intended it to be read in that manner, then it is a finding unsupported by the evidence and also an irrational one.  However, it may be the case that he intended paragraph 44(k) to be read as a statement that there was no evidence which he found to be convincing “that the (company) owned the assets it relied upon to demonstrate that it was of appropriate financial standing.”  If that was his intention, then the Deputy Traffic Commissioner has not sufficiently explained and justified his conclusion.  He has not explained why he did not accept document 262 as being prima facie evidence of the company’s ownership of the assets referred to in it.  Nor has he explained why he did not accept, if that be the case, the valuations placed on the company’s fleet and on its other assets by their respective valuators.  Thus we hold on either of the grounds discussed in this paragraph that paragraph 44(k) represents an error of law on the part of the Deputy Traffic Commissioner.  Indeed in making the finding recorded in that sub-paragraph he was plainly wrong.  Thus his decision in respect of the company’s appropriate financial standing falls to be set aside.

 

7. Given the view we have expressed in paragraph 6 above it is unnecessary for us to discuss any of the other submissions made by Mr Sasse in respect of the issue of the company’s appropriate financial standing.

 

8. In paragraph 70 of his decision, the Deputy Traffic Commissioner refused the company’s application on the additional ground of lack of good repute.  This was because, according to paragraphs 61 and 68 of  "the conduct of Mrs Vilma Cassidy”.  That conduct also led to him disqualifying Mrs Cassidy from acting as a director of any operating company for a three month period.  That is explained in detail in paragraphs 78-83.  The conduct of Mrs Cassidy to which the Deputy Traffic Commissioner refers related to the operation of goods vehicles in the period between 29 June 2011 and 7 July 2011 without any goods vehicles operators licence.  According to the Deputy Traffic Commissioner, that unlawful operation was carried out by the company.  Mrs Cassidy was a director of the company.  Thus, the Deputy Traffic Commissioner held she had the responsibility of monitoring and supervising the company’s operations so that unlicensed operations did not take place.  He strongly emphasises that point in paragraph 53.  In paragraph 50 read along with paragraph 62-63 he makes the crucial finding that in the period in question vehicles were being operated by the (company) without a licence to do so being in force.

9. Mr Sasse submitted, in our judgement correctly, that the basis of the Deputy Traffic Commissioner’s decision on the company’s good repute and also his decision to disqualify Mrs Cassidy was the finding that the company had operated vehicles in the period in question.  Thus, if that finding were shown to have an inadequate basis, his decision in both those respects could not stand. However, he conceded that there were other issues with which the Deputy Traffic Commissioner could quite legitimately have taken issue but did not do so. Mr Sasse then went on to submit that paragraph 50 did not have an adequate evidential basis.  He drew our attention, firstly, to the reference in it to “the unchallenged evidence of Traffic Examiner Barwell”.  He then directed us to document 174 where that evidence is recorded.  The Traffic Examiner on that page records Mr Paul Cassidy, Mrs Cassidy’s husband, as “confirming it was him who had used the vehicles.”  Mr Sasse submitted that far from the Traffic Examiner’s evidence being “unchallenged” as to the company operating vehicles it was to a contrary effect i.e. the vehicles were not being operated by the company, according to the evidence recorded in document 174, but rather by Mr Cassidy as an individual.  We agree with that submission and hold that in paragraph 50 the Deputy Traffic Commissioner misdirected himself. That left him with no basis for holding, as he did in paragraph 63, that “the vehicles could only have been operated by the (company)”.  There was clear evidence before him that they were actually being operated by Mr Paul Cassidy as an individual.  Further, Mr Sasse submitted that the last sentence of paragraph 55 to the effect that it was “trite law that drivers have to be employed by the entity that is operating the vehicle being driven” was plainly incorrect.  The position stated there by the Deputy Traffic Commissioner was anything but “trite law”.  We agree.  There is no necessary connection between the employment status of a driver and the operation of a vehicle.  In any event, we are not satisfied that the Deputy Traffic Commissioner (for the reasons just given) had an adequate basis for his finding that it was the company which was operating vehicles in the period in question.  Finally, in this connection, Mr Sasse directed us to the contents of paragraph 64.  He submitted that that paragraph was self-contradictory.  Mrs Cassidy only had the duties of ensuring that any operation of vehicles was lawful in her capacity as a director of the company.  If there was an inadequate basis for the finding that the company was operating vehicles then there was no basis for any duty upon her as a director.  We agree.  It has never been asserted that Mrs Cassidy was operating goods vehicles independently as an operator in her own right.  Any duty which rests upon her rests upon her only in the capacity of a director of the company.  To summarise we accept Mr Sasse’s submissions that the Deputy Traffic Commissioner had an inadequate basis for his conclusion (which was crucial to the issues of good repute and Mrs Cassidy’s disqualification) that in the period under discussion the company was operating vehicles on an unlicensed basis. In that regard he erred in law and was indeed plainly wrong.

 

10. We set the Deputy Traffic Commissioner’s decision aside on the basis of the errors of law identified by us in this decision.  We consider that the only appropriate disposal is to remit the case to a different Traffic Commissioner or Deputy Traffic Commissioner to conduct a freshly convened Public Inquiry. That Public Inquiry will be at large.  All relevant matters will fall for redetermination afresh by the new Traffic Commissioner or Deputy Traffic Commissioner after he or she has conducted that Public Inquiry. 

 

 

(Signed)

A J GAMBLE

Judge of the Upper Tribunal

Date: 15 March 2012